Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

MEMORANDUM

Saldana was charged with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). After the district court denied his motion to suppress certain statements, Saldana pled guilty, preserving his right to appeal. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Saldana first contends that the district court erred in failing to suppress a roadside statement he made to the agent when he was first stopped, because the agent had not yet given him his Miranda warnings. Relying on Pennsylvania v. Bruder, 488 U.S. 9 (1988) (Bruder), the district court held that Saldana was not "in custody" when the agent initially approached him, and that Miranda warnings were therefore unnecessary. We review for clear error the district court's factual determination that Saldana was not in custody when interrogated. Medeiros v. Shimoda, 889 F.2d 819, 822 (9th Cir. 1989), cert. denied, 110 S. Ct. 3219 (1990). Saldana was approached on the side of a public highway by a single officer, who inquired as to why Saldana ran the border checkpoint. Because Saldana was not "in custody" at this point, the district court was correct in concluding that any statement in response was admissible despite the lack of Miranda warnings. See Bruder, 488 U.S. at 10-11.

Saldana next argues that the district court should have suppressed statements he made during his interrogation at the border patrol office after his arrest. Although he was given his Miranda warnings prior to this interrogation, Saldana contends that his statements were not voluntary. The district court, however, found that Saldana "voluntarily and intelligently waived his Miranda rights." Review of the district court's factual findings concerning voluntariness is for clear error, while the court's ultimate conclusion as to voluntariness is reviewed de novo. United States v. Eccles, 850 F.2d 1357, 1361 (9th Cir. 1988). Although he now alleges that he was coerced, Saldana points to no evidence in the record to support his assertion. Indeed, Saldana did not even bother to contest the voluntariness issue at the district court level. We see no reason to disturb the findings made by the district court, and conclude that Saldana's statements at the border patrol office were indeed voluntary.

Finally, Saldana urges us to invalidate 18 U.S.C. § 3553(e), which allows the court to sentence a defendant below a minimum sentence to reflect the defendant's substantial assistance. Because those less involved with a crime do not possess enough information to benefit from this discretionary provision, Saldana contends that it violates the stated congressional purpose to provide greater punishment to those more highly involved in criminal activity. Moreover, he argues that the section deprives him of due process. We review de novo the legality of a statute. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). We conclude that Congress's desire to punish drug kingpins is served by encouraging those with relevant information as to those kingpins to disclose such information. Thus, there is a rational relationship between the statute and Congress's purpose. Saldana's due process argument fails in light of United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990), in which we held that "section 3553 and section 5K1.1 [of the Sentencing Guidelines] are not unconstitutional insofar as they allow only the Government to seek a departure from the minimum mandatory sentence to reflect a defendant's 'substantial assistance.' " Id. at 653.

AFFIRMED.