#### UNITED STATES of America, Plaintiff-Appellee, v. Marcelino PORTILLO-RIVERA, Defendant-Appellant.

No. 16-10111

United States Court of Appeals, Ninth Circuit.

*601Submitted October 18, 2017 * San Francisco, California

Filed November 13, 2017

Matthew Binford, Assistant Attorney General, USPX—Office of the US Attorney, Phoenix, AZ, for Plaintiff-Appellee

Molly Alana Karlin, Esquire, FPDAZ-Federal Public Defenders Office (Phoenix) Phoenix, AZ, for Defendant-Appellant

Before: THOMAS, Chief Judge, and WALLACE and CALLAHAN, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Marcelino Portillo-Rivera was convicted pursuant to a conditional guilty plea of one count of being an illegal alien in possession of a firearm. On appeal, he asserts that his statements and the photographs found on his cell phone should have been suppressed because the *Miranda*warnings were inadequate and he did not waive his right to counsel. We affirm.1

The denial of a motion to suppress is reviewed de novo, but the factual findings underlying the district court’s decision are reviewed for clear error. *United States v. Brobst,*558 F.3d 982, 995 (9th Cir. 2009); *United States v. Perez-Lopez,*348 F.3d 839, 844 (9th Cir. 2003).

1.The district court’s determinations that Portillo-Rivera was given *Miranda*warnings and understood them is supported by the record. Portillo-Rivera was given Miranda warnings in the field and again when he arrived at the Border Patrol station, and he signed a form stating that he had been given a *Miranda*warning. Portillo-Rivera’s testimony in the district court does not show any sign of confusion as to his *Miranda*rights.

2. The district court’s determination that Portillo-Rivera did not invoke the right to counsel with the clarity necessary to prohibit further questioning is also sound. The record supports the district court’s findings that Portillo-Rivera “asked whether he would still be able to have an attorney during trial if he talked with the Border Patrol agents” and that Portillo-Rivera did not unambiguously request an attorney. The government met its burden of clarifying Portillo-Rivera’s statements regarding his right to counsel. Agents asked if Portil-lo-Rivera wished to speak without an attorney present and informed him that he could invoke his right to counsel at any time by asking for an attorney. *See United States v. Rodriguez,*518 F.3d 1072, 1080 (9th Cir. 2008).

3. Portillo-Rivera’s remaining contentions do not merit relief. Even if Agent Peterson’s testimony as to what Portillo-Rivera said might be considered hearsay, it would be admissible. *See United States v. Raddatz,*447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial.”). Finally, the record belies Portillo-Rivera’s assertions that there was insufficient evidence “to satisfy the Government’s *602burden to prove waiver,” and that the district court erroneously shifted the burden of proof to Portillo-Rivera. The government supported its assertion that Portillo-Rivera had waived his *Miranda*right with testimony from agents Peterson, Kinnally, Berger, and Halaby, and the district court specifically stated that the government had the burden of proof.

The district court’s denial of Portillo-Rivera’s motion to suppress, the judgment of conviction, and the sentence, are AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

. As the parties are familiar with the facts and procedural history, we restate them here only as necessary to explain our decision.