United States of America v. Marcel Daron King

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCEL DARON KING,
Defendant - Appellant.
No. 11-10182
D.C. No. 3:10-cr-00455-WHA-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted February 13, 2012
San Francisco, California
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.
Defendant Marcel Daron King appeals his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argues that the
district court erred by declining to hold an evidentiary hearing and denying his
FILED
MAR 13 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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In a separate opinion filed this date, we address Defendant’s additional1
challenge to the warrantless probation search of his room.
2
motion to suppress his confession. He also challenges his sentence as
substantively unreasonable and procedurally erroneous. We affirm.1
1. Reviewing for abuse of discretion, United States v. Howell, 231 F.3d
615, 620 (9th Cir. 2000), we hold that the district court did not err by declining to
grant Defendant an evidentiary hearing on his motion to suppress. "An evidentiary
hearing on a motion to suppress ordinarily is required if the moving papers are
sufficiently definite, specific, detailed, and nonconjectural to enable the court to
conclude that contested issues of fact going to the validity of the search are in
issue." United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) (per curiam).
Here, the moving papers were not "sufficiently definite, specific, detailed,
and nonconjectural" to suggest that material questions of fact existed. Defendant
contends that a dispute of fact existed as to whether he was interrogated about the
firearm before the video recording of his interview began. But Defendant never
specifically alleged in his moving papers that any such interrogation occurred.
Therefore, no material question of fact existed, and the district court properly
denied Defendant’s request for an evidentiary hearing.

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2. Reviewing de novo, United States v. Rodriguez–Rodriguez, 393 F.3d
849, 855 (9th Cir. 2005), we affirm the district court’s denial of Defendant’s
motion to suppress his confession. Defendant argues that his confession was
inadmissible under Missouri v. Seibert, 542 U.S. 600, 617 (2004), because it
resulted from a deliberate two-step interrogation. An impermissible two-step
interrogation under Seibert "involves eliciting an unwarned confession,
administering the Miranda warnings and obtaining a waiver of Miranda rights, and
then eliciting a repeated confession." United States v. Narvaez-Gomez, 489 F.3d
970, 973–74 (9th Cir. 2007). The district court ruled that no pre-warning
interrogation occurred. We agree.
Whether a defendant was subjected to interrogation is a mixed question of
law and fact, which we review de novo. United States v. Foster, 227 F.3d 1096,
1102 (9th Cir. 2000). Here, police made no pre-warning statements that they
should have known were "reasonably likely to elicit an incriminating response
from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote
omitted). Police simply apprised Defendant of where they had gone earlier that
day and told Defendant that his mother had pointed out a room in the basement
where he sometimes stayed. Defendant also gave no incriminating pre-warning

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responses. Therefore, no two-step interrogation occurred, and Defendant’s motion
to suppress was properly denied.
3. Reviewing for abuse of discretion, United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc), we affirm Defendant’s sentence. His within-
Guidelines sentence was not substantively unreasonable or procedurally erroneous.
The district court permissibly rejected Defendant’s arguments for a below-
Guidelines sentence, and Defendant points to no extraordinary circumstances
placing his crime outside the "mine run" of cases. Id. at 994.
AFFIRMED.

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