                                                                            FILED
                    UNITED STATES COURT OF APPEALS
                                                                             MAY 08 2017
                            FOR THE NINTH CIRCUIT                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.   14-10417

              Plaintiff-Appellee,                D.C. No.
                                                 2:11-cr-00101-WBS-1
 v.                                              Eastern District of California,
                                                 Sacramento
DIONISIO ROBLES PADILLA,

              Defendant-Appellant.               ORDER AMENDING
                                                 MEMORANDUM AND
                                                 DENYING PETITION FOR
                                                 PANEL REHEARING


Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.

      The memorandum disposition filed on January 10, 2017, is hereby amended

as follows:

      Page 2, line 5 - change <below the Sentencing Guideline range> to <within

the Sentencing Guidelines range>.

      Page 3, lines 1-2 - change <below-Guidelines sentence> to <within-

Guidelines sentence>.

      With these amendments, Appellant’s Petition for Panel Rehearing filed on

January 13, 2017, is DENIED.

      No additional petitions for rehearing will be entertained.
                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 08 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10417

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00101-WBS-1

 v.
                                                 AMENDED MEMORANDUM*
DIONISIO ROBLES PADILLA,

              Defendant - Appellant.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                       Argued and Submitted March 18, 2016
                            San Francisco, California

Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.

      Appellant Dionisio Robles Padilla (Padilla) challenges his 120-month

sentence for distribution of methamphetamine in violation of 21 U.S.C. §

841(a)(1). Padilla contends that the district court violated his Fifth Amendment

right against self-incrimination when it questioned him during the sentencing



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
hearing, improperly based its sentence on facts not in evidence, and failed to

adequately explain the basis for the imposed sentence.

       Under plain error review, the record does not reflect that the district court

punished Padilla for exercising his Fifth Amendment rights. Rather, the court

imposed a sentence within the Sentencing Guidelines range, premised on the 18

U.S.C. § 3553(a) factors. See United States v. Christensen, 732 F.3d 1094, 1106

(9th Cir. 2013) (“Where the effect of an alleged error is so uncertain, a defendant

cannot meet his burden of showing that the error actually affected his substantial

rights.”) (citation omitted).

       The district court may have inaccurately suggested that Padilla implicated an

innocent former co-defendant during his plea colloquy. However, Padilla has

failed to demonstrate that this observation had any bearing on his below-

Guidelines sentence. See id. (“To establish that his due process rights were

violated, [Padilla] must show that materially false or unreliable information was

demonstrably made the basis for the sentence imposed by the district court. Here,

because [Padilla] failed to raise his erroneous facts issue before the district court,

[Padilla] must show not only that the district court committed error under the Due

Process Clause but also that the error affected his substantial rights. . . .”) (citation

and internal quotation marks omitted).


                                            2
      The district court adequately explained its imposition of a within-Guidelines

sentence premised on the 18 U.S.C. § 3553(a) factors. See United States v.

Hernandez-Arias, 757 F.3d 874, 884 (9th Cir. 2014), as amended (“Although a

district court must explain the sentence sufficiently to permit meaningful review,

an adequate explanation not only derives from the judge’s pronouncement of the

sentence, but may also be inferred from the presentence report or the record as a

whole.”) (citation, alterations, and internal quotation marks omitted).

      AFFIRMED.




                                          3
