FILED

NOT FOR PUBLICATION FEB 06 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 12-50148

Plaintiff - Appellee, D.C. No. 3:11-cr-02076-JAH-1 v.

MEMORANDUM* MARIO SILVA ZAPATA,

Defendant - Appellant.

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted December 4, 2012

Pasadena, California Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

Mario Silva Zapata entered a conditional guilty plea agreement to the crime of importing approximately 66.06 kilograms of marijuana into the United States, in violation of 21 U.S.C. §§ 952 and 960. As part of the plea, he reserved his right to appeal the district court’s denial of his motion to suppress inculpatory statements.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. He now appeals that denial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the adequacy of a Miranda warning de novo. See United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). We also review de novo whether a defendant’s statement was voluntary. See United States v. Harrison, 34 F.3d 886, 890 (9th Cir. 1994).

The district court did not err by denying the motion to suppress Zapata’s confession. Miranda requires that, prior to interrogation, an individual in custody be given “meaningful advice . . . in language [he] can comprehend and on which [he] can knowingly act.” San Juan-Cruz, 314 F.3d at 387 (internal quotations and citations omitted). Here, the statement Zapata alleges confused him, and thus created an ambiguous warning, occurred after he had waived his Miranda rights. Because Zapata had waived his rights before the allegedly confusing statement was made, the statement could not have generated confusion at the time Zapata made his waiver decision. There was no flaw in the warnings Zapata received; they were clear and permitted Zapata to act knowingly with respect to his rights. Thus, Zapata received adequate Miranda warnings. See id.

To use a defendant’s statement against him at trial, the Government “must prove by a preponderance of the evidence that the statement was voluntary.” Harrison, 34 F.3d at 890. This court “consider[s] the totality of the circumstances and determine[s] whether the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect’s will was overborne.” Id. (internal quotations and citations omitted). Here, after Zapata validly waived his Miranda rights and gave vague or dishonest answers to several questions, an agent advised him that she could not help him at sentencing if he gave her no material with which to inform the sentencing process. Another agent advised him that if he thought his silence was helping him, he was wrong; it was putting him in a worse position to that he could obtain. The agents emphasized that Zapata could “help him[self]” by “tak[ing] responsibility” for his crime. Having assessed the totality of the circumstances, we conclude that the agents’ statements were not coercive and that Zapata’s will was not overborne. Thus, Zapata’s subsequent confession was voluntary and admissible.

AFFIRMED.