UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 17-10167
Plaintiff-Appellee, D.C. No.
2:16-cr-00619-ROS-1
v. District of Arizona,
Phoenix
JOSE ANGEL PEREZ-RODRIGUEZ, AKA
Jose Angel Perez Rodriguez, ORDER
Defendant-Appellant.
Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,* District
Judge.
Defendant-Appellant’s petition for panel rehearing is GRANTED. The
memorandum disposition filed on December 22, 2017 is withdrawn. A new
memorandum disposition is filed concurrently with this order. Subsequent
petitions for panel rehearing or rehearing en banc may be filed.
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10167
Plaintiff-Appellee, D.C. No.
2:16-cr-00619-ROS-1
v.
JOSE ANGEL PEREZ-RODRIGUEZ, AKA MEMORANDUM*
Jose Angel Perez Rodriguez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted November 16, 2017
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,** District
Judge.
Jose Angel Perez-Rodriguez appeals his sentence and seeks a remand to the
district court for resentencing. He asserts that the district court committed
procedural plain error in failing to state the applicable Sentencing Guidelines range
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
and failing to adequately address the 18 U.S.C. § 3553(a) factors at sentencing. Mr.
Perez also maintains that the district court committed substantive error in applying
a four-point enhancement to his sentence based on statements he claims were made
in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
At sentencing, Mr. Perez did not assert that the district court failed to state
the Guidelines range or consider the § 3553(a) factors. Accordingly, plain error
review applies to these points. See United States v. Hammons, 558 F.3d 1100, 1103
(9th Cir. 2009) (“When a defendant does not raise an objection to his sentence
before the district court, we apply plain error review.”).
Plain error is “(1) error, (2) that is plain, and (3) that affects substantial
rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997)). The defendant “bears the burden of
persuading us that his substantial rights were affected.” United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). “If these three conditions are met,
we may then exercise our discretion to grant relief if the error ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” United States v.
Waknine, 543 F.3d 546, 551 (9th Cir. 2008) (quoting Ameline, 409 F.3d at 1078).
Even if the district court erred by not expressly stating its Guidelines
calculation on the record, Mr. Perez has not established that his substantial rights
were affected. To the contrary, the record reflects that the Guidelines range was
2
understood by both parties and the court. For example, at the renewed sentencing
hearing, after the remaining disputed Guidelines issue was resolved, the
government stated its position on the Guidelines range to which neither the
defendant nor the court disagreed.
Mr. Perez next asserts that the district court erred in failing to expressly
consider the § 3553(a) factors. “[A]fter giving both parties an opportunity to argue
for whatever sentence they deem appropriate, the district judge should then
consider all of the § 3553(a) factors to determine whether they support the sentence
requested by a party.” Gall v. United States, 522 U.S. 38, 49–50 (2007). However,
“[t]he district court need not tick off each of the § 3553(a) factors to show that it
has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc).
Although the district court did not expressly address each § 3553(a) factor, its
sentencing remarks reflect an adequate consideration of the relevant § 3553(a)
factors. Moreover, the district court expressly adopted probation’s recommendation
which itself expressly considered the § 3553(a) factors. Therefore, Mr. Perez has
not shown that the district court committed plain error.
Finally, Mr. Perez contends that the district court erred in applying a four-
point enhancement to his sentence because the only evidence to support the
3
enhancement was obtained in violation of Miranda.1 Specifically, Mr. Perez takes
issue with his Miranda waiver, asserting that it was not knowing, intelligent, and
voluntary. Even assuming that the exclusionary rule applies at sentencing, this
argument fails because there was no Miranda violation.
Whether a Miranda waiver was voluntary “is a mixed question of fact and
law, which we review de novo”; whether it “was knowing and intelligent is a
question of fact that we review for clear error.” United States v. Amano, 229 F.3d
801, 803 (9th Cir. 2000). “There is a presumption against waiver, of which the
Government bears the burden of overcoming by a preponderance of the evidence.”
United States v. Crews, 502 F.3d 1130, 1139–40 (9th Cir. 2007) (citing United
States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998)). The government must show
that “under the totality of the circumstances, the defendant was aware of the nature
of the right being abandoned and the consequences of such abandonment.” Id. at
1140.
Mr. Perez asserts that his Miranda waiver was not voluntary because he was
misled by the agents during questioning. But the cases he relies upon in support
1
It is clear that the government had probable cause to arrest Mr. Perez for a
firearms purchase violation at the time of the interrogation based on the
information the government had received from the persons at Colorado Street;
therefore, a remand on this basis is not warranted. See Beck v. Ohio, 379 U.S. 89,
91 (1964) (holding that probable cause exists when “the facts and circumstances
within [the officers’] knowledge . . . [are] sufficient to warrant a prudent man in
believing that the petitioner had committed or was committing an offense.”).
4
involved coercive pressures that were much more serious than those alleged here.
And given Mr. Perez’s level of education, we are not persuaded that the agents
tricked him into waiving his Miranda rights.
Mr. Perez’s argument that the officers’ statements were misleading also fails
to demonstrate that his waiver was not knowing and intelligent. Again, Mr. Perez
did not appear to have been actually misled by the information the agents provided
to him. At the time of interrogation, Mr. Perez spoke fluent English, was a high
school graduate, and was studying criminal justice in English. Mr. Perez did not
appear to be confused at the time of questioning and clearly indicated he
understood his rights.2
Therefore, the district court did not err by relying on Mr. Perez’s statements
at sentencing.
AFFIRMED.
2
Indeed, after the agents read Mr. Perez his Miranda rights, he stated “why
am I um, listening to uh Miranda rights?” without the agents referring to them as
such.
5