NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 12-1866
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                            GREGORIO GARCIA,
                                   Appellant
                               ____________

               On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                      District Court No. 1-09-cr-00380-004
             District Judge: The Honorable Christopher C. Conner


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              March 22, 2013

 Before: McKEE, Chief Judge, SMITH, and GREENAWAY, JR., Circuit Judges


                        (Opinion Filed: March 28, 2013)
                           _____________________

                                 OPINION
                           _____________________

SMITH, Circuit Judge.

     Gregorio Garcia pleaded guilty in accordance with a conditional plea

agreement to conspiring to possess with the intent to distribute at least 100
kilograms of marijuana in violation of 21 U.S.C. § 846. The conditional plea

agreement preserved Garcia’s right to challenge the denial of his motion to

suppress certain statements.     The United States District Court for the Middle

District of Pennsylvania sentenced Garcia to 108 months of imprisonment. This

timely appeal followed, challenging the District Court’s denial of Garcia’s motion

to suppress. 1 We will affirm.

        On September 9, 2009, Drug Enforcement Agent Keith Kierzkowski,

Franklin County Detective Jayson Taylor, and several other local law enforcement

agents executed a search warrant at the home of Garcia’s brother-in-law Ricardo

Preciado-Rodriguez.      Garcia, his mother, and his girlfriend, Brittany Martin,

arrived at his sister’s home as the search was almost finished. When Garcia

entered the home, Kierzkowski recognized him as an individual involved in

narcotics trafficking. Kierzkowski and Taylor asked Garcia if they could talk with

him, Garcia agreed, and the three men went up a flight of stairs to a landing.

Kierzkowski advised Garcia that he was not under arrest, but that he knew Garcia

was involved in drug trafficking. Kierzkowski and Taylor did not advise Garcia of

his Miranda 2 rights, however, because neither of them considered Garcia to be in


1
 The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291.
2
    See Miranda v. Arizona, 

, 478-79 (1966).


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custody. Garcia admitted his involvement in certain unlawful conduct, including

transporting marijuana from Winchester, Virginia, to Chambersburg, Pennsylvania.

At the conclusion of their discussion, the men came downstairs and by Garcia’s

account, Garcia went outside with Martin and remained there until the law

enforcement agents left.   A week later, on September 16, 2009, Garcia was

arrested. After receiving his Miranda warnings, Garcia again spoke with the law

enforcement agents about his involvement in drug trafficking.

      Thereafter, an indictment charged Garcia with violating 21 U.S.C. §§ 841

and 846. Garcia sought to suppress the statements he uttered on September 9 to

Kierzkowski and Taylor, contending that he was in custody at the time and had not

been given Miranda warnings. See Dickerson v. United States, 

, 443-

44 (2000) (declining to overrule Miranda and reaffirming that “unwarned

statements [given during custodial interrogation] may not be used as evidence in

the prosecution’s case in chief”).     According to Garcia, the circumstances

demonstrated that he was not free to leave the interrogation.     He noted that

Kierzkowski and Taylor, who were in “full police ‘raid’ gear,” separated him from

the other individuals in the house by grabbing his arm and directing him up a

staircase to a landing. He claimed that he was never advised that he was free to

leave. He argued that the interrogation was lengthy and coercive, as evidenced by

the detailed DEA-6 form completed by Kierzkowski, reflecting the contents of

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Garcia’s conversation with the agents.        Garcia also moved to suppress his

statements on September 16 as fruit of the poisonous tree. See Wong Sun v. United

States, 

, 487-88 (1963).

      After a hearing, which presented conflicting testimony by Kierzkowski,

Taylor, Garcia, and Martin, the District Court credited the testimony of

Kierzkowski and Taylor. The Court recognized that advising a suspect of his

culpability is a factor that tends to support the custodial nature of questioning. See

United States v. Jacobs, 

, 105 (3d Cir. 2005). Nonetheless, the Court

concluded that all of the other circumstances weighed in favor of finding that

Garcia was not in custody when questioned on September 9. It specifically noted

that there was no display of firearms. Indeed, Garcia testified that he “never took

notice” if Kierzkowski and Taylor had firearms. The Court also found that there

were no threats or violence against Garcia and that Garcia felt free to leave the

house with Martin after speaking with Kierzkowski and Taylor.                 Having

determined that the questioning did not occur in a custodial setting, the Court

concluded that Miranda warnings were not required and denied the motion to

suppress.

      “On appeal from the denial of a motion to suppress, we review a district

court’s factual findings for clear error, and we exercise de novo review over its

application of the law to those factual findings.” United States v. Pavulak, 700

                                          

, 660 (3d Cir. 2012). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. City of Bessemer, 

, 574 (1985). This is particularly true

“[w]hen findings are based on determinations regarding the credibility of witnesses

. . . for only the trial judge can be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding of and belief in what is

said.” Id. at 575.

      After reviewing the record, which contains evidence to support the District

Court’s factual findings, we conclude that the District Court did not err in its

determination that Garcia was not in custody and that Miranda warnings were not

required. Accordingly, there was no basis for suppressing Garcia’s statements.

We will affirm the judgment of the District Court.




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