Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.James Randel SALYARDS, a/k/a Jim Star, Defendant-Appellant.

No. 90-30412.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1991.* Decided June 7, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

This sentencing appeal requires us to determine whether the district court correctly applied the Sentencing Guidelines when it considered a quantity of drugs not charged in the indictment.

James R. Salyards pleaded not guilty to charges of distributing and conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846 (1988). During his detention hearing, he initiated contact with local undersheriff Biddle, who was present in the courtroom. He told Biddle that he wanted to talk with law enforcement officials. Salyards' attorney advised him not to do so, but he said Salyards did not care "what counsel said...."

At the conclusion of the hearing, Salyards' attorney terminated his representation.1  Prior to leaving court, however, he told Biddle and Thueson, an FBI agent, that neither should talk with Salyards until he was again represented by counsel. For unexplained reasons, Salyards was not again represented by counsel for two weeks.

Biddle and Thueson met with Salyards the next day. Before being interviewed, Salyards was advised of his Miranda rights. He signed a waiver and wrote in the bottom margin that he voluntarily requested to speak with law enforcement officials in spite of advice from counsel not to do so.

Salyards told Biddle and Thueson that he was a middleman in a cocaine distribution network operating between California and Montana. He admitted distributing $400,000 of cocaine during the preceding year. He subsequently pleaded guilty to distributing eight ounces of cocaine. To compute his base offense level for sentencing, the probation officer used 11.34 kilograms of cocaine as the cocaine equivalent of the $400,000 that Salyards admitted distributing. Salyards was sentenced to 168 months in prison.

* Salyards argues that the district court erred by computing his sentence based on the information given to Biddle and Thueson because it was obtained in violation of his Fifth and Sixth Amendment rights. He claims that he did not knowingly and intelligently waive his rights.

A suspect who has invoked his Miranda rights may be interrogated without an attorney present if the suspect initiates a conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).2  The prosecution, however, must prove that the suspect knowingly and intelligently waived the right to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983); United States v. Most, 789 F.2d 1411, 1417 (9th Cir. 1986).

To determine whether the waiver was knowing and intelligent, we examine the totality of the circumstances, including Salyards' background, experience and conduct. Id. at 1417. This is a mixed question of law and fact reviewed de novo, but any express finding by the district court influences our decision. United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir. 1990), cert. denied, 111 S. Ct. 1006 (1991).

The district court found that Salyards not only initiated conversation with Biddle and Thueson but made a concerted effort to talk with them contrary to the advice of counsel and knowing that his statements could be used against him. It also found that his waiver of counsel was voluntary and knowing.

After considering the totality of the circumstances, we disagree with Salyards' contention that two brief contacts with his attorney, his emotional state at the bond hearing and his lack of lack of familiarity with the legal system and potential sentence invalidated his waiver. We hold that his Fifth and Sixth Amendment rights were not violated and that the court properly considered his statements at sentencing.

II

We review de novo Salyards' assertion that the district court incorrectly applied the Sentencing Guidelines. United States v. Nakagawa, 924 F.2d 800, 802 (9th Cir. 1991). He argues that the district court incorrectly added to his offense level calculation a quantity of cocaine not included in the indictment.3  Nakagawa forecloses this argument. Id. at 803.4 

Salyards admitted distributing 11.34 kilograms of cocaine as part of the same distribution scheme as the count of conviction. See U.S.S.G. Sec. 1B1.3 comment (backg'd). The court's aggregation of drug quantities was proper.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The detention hearing was in Kalispell, Montana, but most court proceedings involving defendants in Western Montana are held in Helena, 234 miles away. As a result, it is not uncommon for one attorney to represent the accused in Kalispell and for another to represent him in Helena, explaining the termination of the attorney's representation

 2

Salyards argues that the recent decision in Minnick v. Mississippi, 111 S. Ct. 486 (1990), supports his position. Minnick is distinguishable. There, the defendant did not initiate conversations with law enforcement officials and refused to sign a waiver. Id. at 488. Here, Salyards initiated conversations with Biddle and Thueson, willingly spoke with them and voluntarily signed the waiver

 3

Salyards also argues that the evidence is insufficient to show that he distributed $400,000 in cocaine. Because he admitted doing so, we reject his argument

 4

Because we affirm the district court's application of Sec. 1B1.3, we need not address the application of Secs. 2(d)1.1 or 2(d)1.4