United States v. 2020-11-02 | 19-30221 | USA V. ADAN TORRES-NIEVES | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADAN TORRES-NIEVES
**
Defendant-Appellant.
No. 19-30221
D.C. No. 3:17-cr-00386-SI-1
MEMORANDUM
*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted October 29, 2020
***
Portland, Oregon
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
FILED
NOV 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Appellant states the correct spelling of his name is Torres-Nieves, not
Torres-Nievez, the spelling used by the government and district court.
* **
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

Torres-Nieves appeals the district court’s denial of his motion to suppress
and its determination that the government did not breach the plea agreement when
it argued for an application of the firearm enhancement. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
The district court did not err in denying Torres-Nieves’s motion to suppress
the statements he made after he was transported to the police station.
Torres-Nieves does not challenge the district court’s findings that, after the police
first stopped him, he was read his Miranda rights, he understood his rights, and he
did not ask for counsel. Because defendants who have been informed of their
Miranda rights may waive those rights without making “an explicit statement of
waiver” if they respond to questioning, North Carolina v. Butler, 441 U.S. 369,
375–76 (1979); accord United States v. Younger, 398 F.3d 1179, 1185–86 (9th Cir.
2005), Torres-Nieves waived his Miranda rights by making statements during the
subsequent interview at the police station. Because it is undisputed that Torres-
Nieves understood his rights, Torres-Nieves’s waiver was knowing, intelligent, and
voluntary. See United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir. 1997).
The district court did not err in concluding that the plea agreement did not
bar the government from arguing for a two-level upward adjustment to the
sentencing guidelines, under U.S. Sent’g Guidelines Manual § 2D1.1(b)(1), for
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Torres-Nieves’s possession of a firearm. Because paragraphs 11 and 14 of the plea
agreement (stating that “[t]he parties have no agreement” as to whether the
enhancement applies and that the government agrees not to seek any upward
adjustment “except as specified” in the plea agreement) were ambiguous, the
district court did not err in considering extrinsic evidence and concluding that the
communication between the parties during plea negotiation, showed that the parties
reasonably understood that once the plea agreement was accepted, the government
could argue for (and Torres-Nieves could argue against) the application of the
firearm enhancement. See United States v. Clark, 218 F.3d 1092, 1095–96 (9th
Cir. 2000); see also United States v. De la Fuente, 8 F.3d 1333, 1338–40 (9th Cir.
1993).
AFFIRMED
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