IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41042

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRANDON D. IVORY,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-928-1

Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.

PER CURIAM:

*

Brandon D. Ivory appeals his convictions for possession with intent to

distribute more than 100 kilograms of marijuana and for conspiring to do so. He

contends that the district court should have sua sponte conducted a hearing to

determine whether his confession was voluntary. See Jackson v. Denno,

378 U.S. 368 (1964) (remanding for a hearing on a confession’s voluntariness).

He concedes that review is only for plain error because he did not raise the issue

in the district court. See United States v. Guanespen-Portillo, 514 F.3d 393, 402

United States Court of Appeals

Fifth Circuit

F I L E D

October 1, 2010

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 09-41042 Document: 00511250930 Page: 1 Date Filed: 10/01/2010
No. 09-41042

(5th Cir. 2008); United States v. Iwegbu, 6 F.3d 272, 274 (5th Cir. 1993). “Under

the plain error standard, [this court] will reverse only if (1) there is an error,

(2) the error is clear under current law, and (3) the error affects the defendant’s

substantial rights.” Guanespen-Portillo, 514 F.3d at 402. When those three

showings are made, this court has the discretion to correct the error if it has a

serious effect on the integrity, fairness, or public reputation of the judicial

proceedings. Id. at 402-403. A trial court must conduct a voluntariness hearing

on its own motion if the evidence reflects a genuine question of the voluntariness

of a confession. See Guanespen-Portillo, 514 F.3d at 402; United States v.

Renteria, 625 F.2d 1279, 1282-83 (5th Cir. 1980).

Citing United States v. Powe, 591 F.2d 833, 845-46 (D.C. Cir. 1979), Ivory

argues that his confession was involuntary because it was induced by assertions

that Ivory could help himself by confessing. A confession is not rendered

involuntary simply because a suspect is advised that “there are advantages to

cooperating.” United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir.

1994). “It is reasonable to assume that the cooperation of an arrested person

often is prompted by a desire for leniency for himself or others,” and statements

made in such circumstances are not per se involuntary. United States v.

Robertson, 582 F.2d 1356, 1368 (5th Cir. 1978). Moreover, a federal agent

testified without contradiction that the agents told Ivory that they could not

promise him anything and that he would have to talk to the United States

Attorney.

Ivory offered little more than vague allusions to the voluntariness of his

confession. He stated that he confessed only because he was tired, but the

confession itself was highly detailed, and the record does not indicate that the

interrogation was especially long, although it ended around 2:00 a.m. Ivory

offered no direct evidence of threats or inherently coercive behavior. Moreover,

he never moved to suppress the confession; rather, his lawyer affirmatively

stated there was nothing to suppress.

2

Case: 09-41042 Document: 00511250930 Page: 2 Date Filed: 10/01/2010
No. 09-41042

Of slightly greater significance, Ivory testified at trial that he was not

advised of his Miranda rights prior to his confession. The record does not show

1

that the district court made any explicit or specific finding that Ivory was

mirandized prior to confessing. However, the district court was aware of Ivory’s

testimony as well as the starkly contrasting testimony from a federal agent in

rebuttal. In addition, the court had been explicitly advised that there was no

suppression issue. Because the evidence as a whole did not clearly raise a

genuine question of voluntariness before the district court, we find no clear or

obvious error in the failure to have a voluntariness hearing. The judgment of

the district court is AFFIRMED. See Guanespen-Portillo, 514 F.3d at 403-05.

 Miranda v. Arizona, 384 U.S. 436 (1966).

1

3

Case: 09-41042 Document: 00511250930 Page: 3 Date Filed: 10/01/2010