                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                
                 Plaintiff-Appellee,
                                                No. 06-50220
                v.
EDWIN MEJIA, a/k/a EDWIN JOE                     D.C. No.
                                              CR-04-01615-SVW
MEJIA, EDWIN JHONBANY MEJIA, JOE
                                                   OPINION
JHONBANY,
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
            for the Central District of California
        Stephen V. Wilson, District Judge, Presiding

                  Argued and Submitted
          November 18, 2008—Pasadena, California

                      Filed March 24, 2009

       Before: Myron H. Bright,* Stephen S. Trott and
           Michael Daly Hawkins, Circuit Judges.

                     Opinion by Judge Trott




   *The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

                               3703
                   UNITED STATES v. MEJIA                3707




                         COUNSEL

Alissa Sawano Peterson, Irvine, California, for the defen-
dant/appellant.

Raymond O. Aghaian, Assistant United States Attorney, Riv-
erside, California, for the plaintiff/appellee.


                         OPINION

TROTT, Circuit Judge:

   Edwin Mejia challenges both his conviction and his sen-
tence of 188 months imprisonment plus five years supervised
release for possession and distribution of methamphetamine.
Mejia asserts (1) he was entrapped into selling methamphet-
amine, (2) his statement was taken in violation of Miranda,
and (3) his due process rights were violated because he was
shackled during trial. Also, Mejia appeals his sentence on the
3708                 UNITED STATES v. MEJIA
grounds that the district court failed to consider the factors set
forth under 18 U.S.C. § 3553(a) and his requests for down-
ward departures in reference to § 3553(a). Additionally, Mejia
argues he (1) should have received a two-point reduction for
acceptance of responsibility, and (2) should not have received
one criminal history point for a misdemeanor conviction for
resisting arrest.

   We have jurisdiction over this timely appeal, and we affirm
the judgment of conviction, but remand for resentencing.
Given this result, we first address the calculation of Mejia’s
criminal history involving his prior misdemeanor conviction.

A.     Criminal History

   Mejia disputes the assignment of one criminal history point
to him for his prior conviction for resisting arrest. Because
this issue was not raised in the district court, to warrant relief
the error must constitute plain error. See United States v. Ame-
line, 409 F.3d 1073, 1078 (9th Cir. 2005). 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) (citation,
alteration and internal quotation marks omitted). An error is
plain if it is “contrary to the law at the time of appeal . . . .”
Johnson v. United States, 520 U.S. 461, 468 (1997).

   [1] We held in a case decided en banc after Mejia was sen-
tenced that “a partially suspended sentence for a misdemeanor
listed in [U.S.S.G.] § 4A1.2(c)(1) counts only if the non-
suspended portion of the sentence is at least thirty days.”
United States v. Gonzales, 506 F.3d 940, 945 (9th Cir. 2007)
(en banc). Resisting arrest is a misdemeanor listed in
§ 4A1.2(c)(1).

   On October 27, 1997, imposition of Mejia’s sentence for
resisting arrest was suspended and he was placed on two years
summary probation. This was conditioned on spending 16
days in county jail, for which Mejia was given credit for time
                    UNITED STATES v. MEJIA                  3709
already served. Three days later, on October 30, 1997, his
probation was terminated. Seventeen days later, because pro-
bation had been terminated thirteen days earlier, “proceed-
ings” against Mejia were terminated.

   [2] Section 4A1.2(c)(1)(A) reads as follows: “(1) Sentences
for the following prior offenses . . . by whatever name . . . ,
are counted only if (A) the sentence was a term of probation
of at least one year or a term of imprisonment of at least thirty
days.” (emphasis added).

  [3] There are two clauses in this sentence, the first involv-
ing a “term of probation,” the second a “term of imprison-
ment.” Gonzales held that the words “term of imprisonment”
means a “term of actual confinement.” Gonzales, 506 F.3d at
944, n.2. Pursuant to Gonzales, because Mejia served a term
of imprisonment of less than 30 days, clause two would
exclude this misdemeanor from the calculation.

  At this point, clause one comes into play, because Mejia,
unlike Gonzales, was sentenced to a term of probation of
more than one year — two to be precise. However, imposition
of this sentence was “suspended” when it was pronounced,
and his probation was terminated three days later.

   [4] Although our en banc opinion in Gonzales is not exactly
on point, its analysis is manifestly appropriate here, because
suspension of Mejia’s probationary sentence combined with
his actual service of only a three-day probationary term was
less than the one year required by § 4A1.2(c)(1)(A) for inclu-
sion in his criminal history. Just as a “term of imprisonment”
means “a term of actual confinement,” Gonzales, 506 F.3d at
944, n.2, a term of probation means a term of actual proba-
tion. Here, the suspension of Mejia’s sentence before he was
placed on a truncated term of probation indicates that the
offense of which he was convicted was not regarded as seri-
ous.
3710                UNITED STATES v. MEJIA
   [5] Accordingly, we determine as the law now stands at the
time of his appeal that the assignment of one criminal history
point to him for his prior conviction for resisting arrest was
“plain error.”

   [6] This error affected Mejia’s substantial rights. The dis-
trict court imposed a low-end Guidelines sentence of 188
months imprisonment reflecting a base offense level of 34 and
a criminal history category of III. Excluding the criminal his-
tory point for Mejia’s resisting arrest conviction, the sentence
must be calculated to reflect a criminal history category of II.
This would decrease the recommended Guideline sentence
from a range of 188-235 months to 168-210 months. If the
district court chooses to follow a low-end Guidelines sentence
in accordance with criminal history category II, Mejia’s sen-
tence could be reduced by 20 months. In our view, this
impacts Mejia’s substantial rights, and is thus, plain error.

B.     Entrapment

   [7] When a defendant asserts an entrapment defense, the
government must prove beyond a reasonable doubt that he
was not entrapped by showing either: “(1) the defendant was
predisposed to commit the crime before being contacted by
government agents; or (2) the defendant was not induced by
the government agents to commit the crime.” 9th Cir. Crim.
Jury Instr. 6.2 (2003); see also United States v. Jones, 231
F.3d 508, 516 (9th Cir. 2000).

   [8] Because this court resolves all matters of credibility in
a manner supporting the verdicts, and because there was suffi-
cient evidence for a reasonable jury to find either that Mejia
was not induced by government agents or that he was predis-
posed to commit the crimes charged, we uphold the jury’s
conclusion that Mejia was not entrapped.
                    UNITED STATES v. MEJIA                  3711
C.     Miranda Violation

  1.     Voluntariness of Mejia’s Statement

   [9] The voluntariness of a waiver depends on the absence
of police overreaching. Colorado v. Connelly, 479 U.S. 157,
170 (1986). The physical condition of a defendant at the time
of his arrest is an important factor in determining whether his
subsequent confession was voluntary. See Greenwald v. Wis-
consin, 390 U.S. 519, 520-21 (1968). We agree with the dis-
trict court that Mejia’s physical condition in this situation did
not elevate his statements to the level of involuntariness.

  2.     Two-part Interrogation

   [10] A “two-step interrogation” involves eliciting a confes-
sion, then obtaining a waiver of Miranda rights, and then elic-
iting a repeated confession. United States v. Narvaez-Gomez,
489 F.3d 970, 973-74 (9th Cir. 2007). “If the interrogators
deliberately employ the two-step strategy, the district court
must suppress post-warning statements unless the interroga-
tors take curative measures to apprise the defendant of his
rights; if the two-step method is not deliberate, the post-
warning statements are admissible if voluntarily made.” Id. at
974.

   [11] While the precise order of events is impossible to
glean from the record, it is reasonable to conclude Mejia
began making voluntary inculpatory statements either prior to
being advised of his Miranda rights or as he was being
advised of his Miranda rights and that he continued speaking,
notwithstanding Agent Wilkins’s efforts to quiet him. More-
over, it seems reasonable that Agent Wilkins’s question to
Mejia was not likely to illicit an incriminating response.
Therefore, we conclude that the district court committed no
plain error in admitting the statements.
3712                UNITED STATES v. MEJIA
  3.    Adequacy of Mejia’s Miranda Warning

   [12] Prior to custodial interrogation, law enforcement offi-
cials must inform the suspect of his Miranda rights. However,
the Supreme Court has never insisted that Miranda warnings
be given exactly as described in Miranda. Duckworth v.
Eagan, 492 U.S. 195, 202 (1989). Given the testimony and
evidence, we cannot conclude that driving impacted Agent’s
Linehan’s ability to accurately impart Mejia’s Miranda rights.
Moreover, the record does not foreclose a conclusion that
Agent Linehan testified to a summary of the rights he read to
Mejia. Therefore, it was neither plain error to conclude Mejia
was properly informed of his Miranda rights nor to admit his
statements.

D.     Shackling

   [13] The Fifth and Fourteenth Amendments prohibit the use
of physical restraints visible to the jury without a trial court
determination that they are justified. Deck v. Missouri, 544
U.S. 622, 629 (2005). “When the jury never saw the defen-
dant’s shackles in the courtroom, we have held that the shack-
les did not prejudice the defendant’s right to a fair trial.”
Williams v. Woodford, 384 F.3d 567, 592 (9th Cir. 2004).

   [14] First, because (1) the district court found the jury
could not see Mejia’s shackles, (2) Mejia failed to raise con-
cerns at the time of voir dire, and (3) because Mejia does not
offer any evidence now that jurors during voir dire could see
his shackles, we accept as fact the district court’s finding that
the jury could not see Mejia’s shackles. Also, the district court
properly considered both the recommendations of the U.S.
Marshals as well as Mejia’s disruptive behavior in the court-
room to conclude the use of physical restraints was justified.
Moreover, where a defendant does not indicate to the district
court that he wishes to be present at sidebar, he waives his
right. See United States v. Sherwood, 98 F.3d 402, 407 (9th
Cir. 1996). Thus, we conclude the district court did not abuse
                    UNITED STATES v. MEJIA                3713
its discretion by shackling Mejia during trial, nor were
Mejia’s due process rights violated.

E.   Sentencing: § 3553(a) Factors

   [15] “The 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).
“[W]here judge and Commission both determine that the
Guidelines sentences is an appropriate sentence for the case
at hand, that sentence likely reflects the § 3553(a) factors.”
Rita v. United States, 127 S.Ct. 2456, 2467 (2007). The fail-
ure specifically to mention the § 3553(a) factors does not ren-
der the sentence unreasonable. Thus, the district court did not
abuse its discretion.

F.   Sentencing Entrapment

   [16] Sentencing entrapment occurs when a defendant is
predisposed to commit a lesser crime, but is entrapped by the
government into committing a crime subject to more severe
punishment. United States v. Si, 343 F.3d 1116, 1128 (9th Cir.
2003). The burden is on the defendant to show, by a prepon-
derance of the evidence: 1) the lack of intent to produce the
quantity of drugs; and 2) the lack of capability to produce the
quantity of drugs. See United States v. Naranjo, 52 F.3d 245,
250 n.13 (9th Cir. 1995). Mejia has failed to show by a pre-
ponderance of the evidence that he lacked both the intent and
the capability to produce the quantity of drugs. Thus, the dis-
trict court was reasonable in rejecting Mejia’s argument of
sentencing entrapment and did not abuse its discretion.

G.   Sentencing: Imperfect Entrapment

   [17] A downward departure in sentencing may be appropri-
ate where the level of coercion or duress does not rise to a
complete defense. See United States v. Garza-Juarez, 992
F.2d 896, 911 (9th Cir. 1993). Mejia offered no evidence
3714                UNITED STATES v. MEJIA
illustrating why he should have been entitled to a downward
departure for imperfect entrapment. The district court
reviewed the presentence report, read the parties’ submissions
and listened to the testimony and argument of both parties. It
was, therefore, reasonable and not an abuse of the district
court’s discretion to reject Mejia’s imperfect entrapment argu-
ment.

H.     Sentencing: Acceptance of Responsibility

   [18] A defendant who “clearly demonstrates acceptance of
responsibility for his offense” is entitled to a sentence reduc-
tion for acceptance of responsibility. U.S.S.G. § 3E1.1(a).
Mejia fails to put forth any reason why he is entitled to the
reduction for acceptance of responsibility. The district court
was within its discretion in finding Mejia failed to meet this
burden and, thus, committed no clear error.

I.   Sentencing: Sufficiency of the Evidence/Drug Quantity

   [19] In cases involving drugs, “although the guidelines
clearly authorize the district court to approximate drug quanti-
ties . . . the government is required to prove approximate
quantity by a preponderance of the evidence.” United States
v. August, 86 F.3d 151, 154 (9th Cir. 1996). Based on the evi-
dence as a whole, drawing all reasonable inferences in favor
of the government, and resolving conflicts in evidence in
favor of the jury’s verdict, there was sufficient evidence to
support the drug quantity finding of 447.5 grams for the Octo-
ber 19, 2004 transaction. Accordingly, the district court did
not commit plain error in calculating a base offense level of
34 rather than 32.

                       CONCLUSION

  Therefore, we affirm Mejia’s judgment of conviction, but
vacate his sentence and remand to the district court to resen-
                   UNITED STATES v. MEJIA               3715
tence Mejia in accordance with a base offense level of 34 and
a criminal history category of II.

  AFFIRMED in part; VACATED and REMANDED in
part.
