Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1987)

MEMORANDUM^*

In this appeal of a conviction and sentence for conspiracy to possess and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a) (1), we consider whether the district court determined correctly that Naiyavaj knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. We address also whether the mandatory five year minimum sentence statute under which he was sentenced is constitutional.

We conclude that the district court did not err in ruling that Naiyavaj knowingly and intelligently waived his privilege against self-incrimination and his right to counsel.

He contends that the district court erred in denying his motion to suppress his post-arrest statements on the ground that, due to his limited understanding of English, he did not knowingly and intelligently waive his privilege against self-incrimination and his right to appointed counsel. This contention fails because, although language difficulties may impair an individual's ability to exercise his fifth and sixth amendment rights, see United States v. Heredia-Fernandez, 756 F.2d 1412, 1415 (9th Cir.), cert. denied, 474 U.S. 836 (1985), the evidence of Naiyavaj's command of English supports a finding that he effectively waived those rights. See United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986).

He approached a drug enforcement agent and stated in English that he wished to tell about a package in his truck which it was later determined contained heroin. After hearing his Miranda warnings in English, Naiyavaj indicated in English that he understood his rights and wished to waive them and speak to the agents. He then made a self-incriminating statement in English. In light of the totality of the circumstances surrounding his arrest, it is apparent that he articulated an understanding of his rights and waived them intelligently. See id. at 751-53; United States v. Martinez, 588 F.2d 1227, 1235 (9th Cir. 1978).¹ 

In finding that Naiyavaj knowingly and intelligently waived his Miranda rights, we adopt the reasoning of the district court at the September 1, 1987 evidentiary hearing on the motion to suppress:

"It seems to me that the defendant has been exposed to English since the fifth grade. Whether he has spoken it or not, I don't know. Certainly, he had a year and a half of high school where he was taught exclusively in English. He had high grades. He has been exposed to English for seven years while he was within the United States, whether he listened to radio, watched television, whatever. I cannot accept the fact that he did not understand what was being said to him.

I think the evidence is overwhelming in favor of a finding that he fully understood what was being said, and that will be the finding of this Court. And the motion to suppress is denied." (RT 9/1/87 at 70.)

We have previously held that the mandatory five year minimum sentence statute under which Naiyavaj was sentenced is constitutional. Contrary to Naiyavaj's contention, 21 U.S.C. § 841(b) (1) (B) does not violate equal protection, the separation of powers doctrine or the eighth amendment ban on cruel and unusual punishment. See United States v. Klein, 860 F.2d 1489, 1501 (9th Cir. 1988).

AFFIRMED.