925 F. 2d 1471 - United States v. Ector

MEMORANDUM**

The trial court's finding that Ector had authority or apparent authority to consent to entry into his mother's home was not clearly erroneous: He told Agent Johnson that he lived there and that one of the rooms was his; he had possessions there; and he had no possessions in the motel where he said he was staying. The agents' reliance on Ector's consent was reasonable. See United States v. Yarbrough, 852 F.2d 1522, 1534 (9th Cir.), cert. denied, 488 U.S. 866 (1988). The manager's testimony that defendant forbade her to open the door to the residence does not change our conclusion. Agent Johnson testified that he did not hear the defendant tell the manager not to let the agents in, RT 9/13/89, at 170, 175-76, and the district court explicitly found Johnson's testimony more believable than the manager's. RT 10/20/89, at 194-95. We are "not at liberty to disturb the credibility determinations made by the ... district court." United States v. Kerr, 876 F.2d 1440, 1444 (9th Cir.1989).

Defendant also contends that, even if he did consent, the consent was not given voluntarily. Although Ector was in custody and had not been read his Miranda rights, the officers did not manifest any threatening behavior; they specifically advised Ector that he did not have to consent if he did not want to. The district court's finding that consent was freely given therefore was not clearly erroneous. United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir.1989) (district court's finding that consent was given voluntarily was not clearly erroneous where defendant was in custody and was informed he did not have to give consent and the officers' guns were not drawn, even though the officers told the defendant they would attempt to get a warrant if consent were not given).

Because the evidence was lawfully obtained and properly admitted into evidence at defendant's trial, the court did not err in denying defendant's motion for a new trial.

Appellant first argues that the district court should have excluded some of the cocaine base from the amount it used to determine his base offense level because it was for personal use and not for sale. While there was evidence that some of the base could have been for personal use, defendant has utterly failed to carry his burden of showing the district court's contrary finding--that all the drugs were possessed by defendant as part of a common scheme--was clearly erroneous. See United States v. Turner, 898 F.2d 705, 710-11, (9th Cir.), cert. denied, 110 S.Ct. 2574 (1990).

Second, appellant argues that the district court erred in failing to depart downward from the range set by Sentencing Guidelines. We have no jurisdiction to consider an appeal based on the district court's failure to depart downward. United States v. Morales, 898 F.2d 99 (9th Cir.1990).

AFFIRMED.