930 F2d 29 United States v. F Camacho

930 F.2d 29

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
John F. CAMACHO, Jr., Defendant-Appellant.

No. 90-10024.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 1990.
Submission Vacated Dec. 10, 1990.
Resubmitted Feb. 26, 1991.
Decided March 29, 1991.

Before SNEED, SCHROEDER and CANBY, Circuit Judges.

1

MEMORANDUM*

2

Appellant John Camacho pled guilty to two counts of possession of cocaine with intent to distribute. Camacho was sentenced to 97 months in prison. He now appeals his conviction and sentence. We affirm.

3

Camacho first claims that the district court erred in denying his motion to suppress incriminating statements he made while in police custody. Camacho claims that a DEA agent continued to question him after Camacho had expressed his desire to consult with counsel, eliciting incriminating statements in violation of the sixth amendment. This claim has no merit in light of the district court's findings that Camacho initiated discussions with police after invoking the right to counsel.

4

In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [The accused] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-85; Minnick v. Mississippi, 111 S.Ct. 486, ----, 59 U.S.L.W. 4037, 4038-39 (1990). Three years later, the Court established a two-step inquiry to determine the admissibility of statements made after invocation of the right to counsel. First, the reviewing court must determine whether the accused has actually invoked the right to counsel. Second, if the accused has invoked the right to counsel, incriminating statements are admissible only (1) if the accused initiated further discussions with the police; and (2) if the accused "knowingly and intelligently" waived the right to counsel. Smith v. Illinois, 469 U.S. 91, 95 (1984).

5

Here, it is not disputed that Camacho made an unambiguous request for counsel. The parties dispute whether Camacho initiated further discussions with the agent, or whether the agent's biographical questioning reopened custodial interrogation. Camacho claims that the agent's requests for biographical data, such as age, address and occupation, constituted interrogation because the agent was motivated by a desire to elicit incriminating responses from Camacho. We do not agree.

6

We have consistently held that in most cases, routine biographical data is not interrogation because the information obtained does not inculpate the accused. See, e.g., United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046 (9th Cir.1990); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983). Here, Camacho's responses regarding his employment, age, address, and so forth were unrelated to the crime of which he was accused and could not possibly incriminate him. Therefore, the agent's biographical questioning did not constitute interrogation so as to trigger constitutional protection. United States v. Perez, 776 F.2d 797, 799 (9th Cir.1985) (obtaining information about defendant's identity not interrogation); compare Gonzalez-Sandoval, 894 F.2d at 1047 (questions about defendant's alienage were interrogation where defendant was charged with illegal possession of firearm by alien); United States v. Disla, 805 F.2d 1340, 1347 (9th Cir.1986) (questioning defendant about residence was interrogation where police were trying to connect defendant to apartment where cocaine was found).

7

Because the DEA agent's questioning did not constitute interrogation, we must next consider whether Camacho himself initiated communication with the police after he invoked his right to counsel. The record demonstrates that during the agent's biographical questioning, Camacho asked what he was charged with and whether those charges were federal or local. This question clearly "evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship." Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). Moreover, the agent refrained from asking Camacho about the investigation until after Camacho had signed a waiver of rights form. See Bradshaw, 462 U.S. at 1046 (police officer cautioned defendant that he did not have to talk to police before discussing investigation). We hold that the district court did not err in finding that Camacho initiated interrogation with the DEA agent.

8

Nor did the district court err in finding that Camacho's waiver of his right to counsel was knowing and intelligent. In determining whether a waiver of rights is knowing and intelligent, the court must consider the totality of the circumstances, including the background, experience and conduct of the accused. Bradshaw, 462 U.S. at 1046. Here, the evidence supports the lower court's finding that Camacho made a knowing and intelligent waiver of his right to counsel. Camacho was an ex-police officer with some 19 years' experience on the force. He was read his Miranda warnings before being asked the biographical questions, and signed a written waiver form which fully advised him of his rights before making any incriminating remarks.

9

Camacho also challenges his sentence imposed under the federal guidelines. Camacho claims that the district court erred by considering at sentencing information contained in Camacho's incriminating statements. Camacho claims that he should be sentenced based only on the amount of drugs in the offense for which he pled guilty. We disagree. Under section 1B1.3(a)(2) of the Guidelines, evidence of other criminal conduct may be considered in determining the defendant's base offense level, if it is part of the same course of conduct as the offense of conviction. United States v. Restrepo, 903 F.2d 648, 653, reh'g granted en banc, 912 F.2d 1568 (9th Cir.1990). Here, Camacho admitted to possessing other quantities of drugs which he intended to distribute. His inculpatory statements provide sufficient evidence of section 1B1.3 relevant conduct.

10

We also reject Camacho's claim that because he cooperated with authorities by providing information, his incriminating statements cannot be used against him. This is not a case in which the defendant made a formal agreement to cooperate with prosecutors in exchange for immunity from further prosecution. Where such a formal agreement exists, a prosecutor cannot use self-incriminating information against the defendant at sentencing. See USSG Sec. 1B1.8(a); United States v. Shorteeth, 887 F.2d 253, 256 (10th Cir.1989). Here, however, Camacho's incriminating statements were made to a DEA agent in the absence of any agreement. Without a formal agreement contemplating immunity, a district court may use information obtained through a defendant's incriminating statements to increase the defendant's sentence. United States v. Rutledge, 900 F.2d 1127, 1132 (7th Cir.), cert. denied, 110 S.Ct. 203 (1990); United States v. Ykema, 887 F.2d 697, 699-700 (6th Cir.1989), cert. denied, 110 S.Ct. 878 (1990). We thus hold that the district court did not err in considering information gained from Camacho's incriminating statements to increase his base offense level.

11

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3