                    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memorandum disposition filed on December 22, 2017 is withdrawn.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                            NOT FOR PUBLICATION                            FILED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
