                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 14-10147
         Plaintiff-Appellee,
                                          D.C. No.
              v.                   3:95-cr-00319- MMC-7

JOHN DOE,
      Defendant-Appellant.                  ORDER



                   Filed October 21, 2016

 Before: M. Margaret McKeown, Kim McLane Wardlaw,
         and Richard C. Tallman, Circuit Judges.


                         ORDER

  The opinion filed on August 9, 2016, appearing at 2016
WL 4191523, is hereby amended as follows:

       At slip op. page 8 n.3, change “We also reject
       Doe’s argument that judicial estoppel prevents
       a court from taking inconsistent positions;
       judicial estoppel is a doctrine that applies to
       the parties, not the court. New Hampshire v.
       Maine, 532 U.S. 742, 750–51 (2001). In any
       event, we disagree with Doe’s premise that
       the court acted inconsistently.” to “We also
2                 UNITED STATES V. DOE

       reject Doe’s arguments that judicial estoppel
       prevents a court from taking inconsistent
       positions, and that his due process rights were
       violated. First, judicial estoppel is a doctrine
       that applies to the parties, not the court. New
       Hampshire v. Maine, 532 U.S. 742, 750–51
       (2001). In any event, we disagree with Doe’s
       premise that the court acted inconsistently.
       Second, a trial court violates a defendant’s
       due process rights only “by relying upon
       materially false or unreliable information at
       sentencing.” United States v. Hanna, 49 F.3d
       572, 577 (9th Cir. 1995) (citing United States
       v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989)).
       Not only was Doe not “at sentencing,” but
       also, the trial court relied on facts to which the
       parties had stipulated, including Doe’s sworn
       plea agreement admitting solicitation of
       murder, as well as a government document
       showing Doe later backed away from that
       admission. Though some of the information
       was conflicting, it was not “materially false or
       unreliable information.” See id. at 578
       (finding due process violation where
       sentencing court relied upon the
       “uncorroborated and unreliable” allegations of
       a co-defendant who “presumably wanted
       revenge” on defendant).”

    With this amendment, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc.
                  UNITED STATES V. DOE                      3

    The full court has been advised of the petition for
rehearing and rehearing en banc and no judge has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.

   The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for en banc or
panel rehearing shall be permitted.
