                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           FEB 25 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 09-10056

              Plaintiff - Appellee,              D.C. No. 4:04-cr-02498-RCC-
                                                 BPV-6
  v.

JESUS PADILLA-GONZALEZ,                          MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                               Argued May 11, 2010
                            Submitted February 23, 2011
                             San Francisco, California

Before: REINHARDT, W. FLETCHER, and N.R. SMITH, Circuit Judges.

       A jury convicted Jesus Padilla-Gonzalez of two counts: (1) conspiracy to

possess with intent to distribute 200 pounds of marijuana (21 U.S.C. §§ 841(a)(1),

b(1)(D) and 21 U.S.C. § 846); and (2) possession with intent to distribute 71.9

pounds of marijuana and aiding and abetting (21 U.S.C. §§ 841(a)(1), b(1)(D) and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
18 U.S.C. § 2). Padilla-Gonzalez was sentenced to 70 months in prison for the

conspiracy conviction and 60 months in prison for the possession with intent to

distribute conviction, to run concurrently with the conspiracy conviction. The

district court also imposed a term of five years supervised release.

      Padilla-Gonzalez challenges his conviction in two ways. First, he asserts

that the district court committed clear error in denying his motion to suppress his

inculpatory statements to police, because he did not knowingly, intelligently and

voluntarily waive his Miranda rights. Second, he claims that no rational jury

“could have found the essential elements of the offens[e] charged beyond a

reasonable doubt.” United States v. Rosales, 516 F.3d 749, 752 (9th Cir. 2008)

(internal quotation marks and citation omitted).

      Padilla-Gonzales also challenges the sentence imposed by the district court,

claiming (1) the district court committed reversible error in finding he was not

eligible for safety valve relief under 18 U.S.C. § 3553(f); and (2) the district court

abused its discretion when it overruled his objections to the Presentence

Investigation Report (“PSR”).




                                           2
          Motion to Suppress – Miranda Waiver

          The district court did not commit clear error in finding that Padilla-Gonzalez

signed his Miranda waiver knowingly and intelligently.1 The district court’s

“essential factual findings” regarding the Miranda waiver included that the Padilla-

Gonzalez’s psychological evaluations did not prevent him from knowingly and

intelligently waiving his Miranda rights, that the waiver was read to Padilla-

Gonzalez in his native tongue (Spanish), and that he signed the waiver.

Consideration of these factors was appropriate under United States v. Crews, 502

F.3d 1130, 1140 (9th Cir. 2007). Thus, the district court did not commit clear error

in holding that Padilla-Gonzalez knowingly and intelligently waived his Miranda

rights.

          The district court also did not err in finding that Padilla-Gonzalez’s waiver

of his Miranda rights was voluntary. The district court appropriately considered

Padilla-Gonzalez’s signature on the waiver form, the fact the form was read to

Padilla-Gonzalez in Spanish, and the fact that Padilla-Gonzalez was allowed to call




          1
              In response to this court’s order remanding for further findings
regarding the Miranda waiver, the district court issued an order elaborating its
factual findings on August 27, 2010. See United States v. Padilla-Gonzalez, No.
04-cr-02498-RCC-BPV-6 (D. Ariz. filed Aug. 27, 2010).


                                              3
and check on his children while in custody in finding the waiver to be voluntary.

See United States v. Amano, 229 F.3d 801, 805 (9th Cir. 2000).

      Conviction

      Padilla-Gonzalez’s assertion that “viewing the evidence in the light most

favorable to the prosecution, [no] rational trier of fact could have found the

essential elements of the offenses charged beyond a reasonable doubt” lacks merit.

See Rosales, 516 F.3d at 751-52. The government provided ample evidence

regarding the conspiracy from which a jury could find guilt, including physical and

electronic surveillance and recorded conversations that included discussions of the

amount of drugs involved in the crimes. From such evidence, a jury “may draw an

inference of an agreement.” United States v. Lo, 447 F.3d 1212, 1226 (9th Cir.

2006). In addition, the government submitted evidence of an act in furtherance of

the conspiracy – the trip to California. Regarding the possession with intent to

distribute and aiding and abetting, “a narcotics distribution charge may be

established without proof of possession.” United States v. Mincoff, 574 F.3d 1186,

1198 (9th Cir. 2009).

      Sentencing

      The district court erred when it ruled that Padilla-Gonzalez was not eligible

for safety valve relief due to the amount of marijuana in the conspiracy and


                                           4
possession charges totaling over 100 kilograms.2 See United States v. Mejia-

Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007) (“Errors in the determination of

safety valve eligibility require resentencing even where the district court has

indicated that it would not have sentenced below the mandatory minimum.”).


      2
            The amount of drugs involved in the crime is not a valid factor in
determining eligibility for safety valve relief. The factors a court must consider
are:

      (1) the defendant does not have more than 1 criminal history point, as
      determined under the sentencing guidelines;

      (2) the defendant did not use violence or credible threats of violence
      or possess a firearm or other dangerous weapon (or induce another
      participant to do so) in connection with the offense;

      (3) the offense did not result in death or serious bodily injury to any
      person;

      (4) the defendant was not an organizer, leader, manager, or supervisor
      of others in the offense, as determined under the sentencing guidelines
      and was not engaged in a continuing criminal enterprise, as defined in
      section 408 of the Controlled Substances Act; and

      (5) not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence
      the defendant has concerning the offense or offenses that were part of
      the same course of conduct or of a common scheme or plan, but the
      fact that the defendant has no relevant or useful other information to
      provide or that the Government is already aware of the information
      shall not preclude a determination by the court that the defendant has
      complied with this requirement.

18 U.S.C. § 3553(f).

                                           5
Even though the district court committed error in determining eligibility for safety

valve relief, we need not remand for resentencing if the government demonstrates

the error was “harmless.” Id. The government asserts that the error was harmless,

because Padilla-Gonzalez did not “answer any questions regarding” the charges

under 18 U.S.C. § 3553(f)(5). The government points to Padilla-Gonzalez’s

refusal to participate in a presentence interview as evidence of “not accept[ing]

responsibility for his criminal conduct.” PSR ¶ 54. However, in sentencing,

accepting responsibility is a different consideration than eligibility for safety valve

relief. Mejia-Pimental, 477 F.3d at 1108. In fact, initially confessing all of one’s

knowledge and then recanting and proceeding to trial does not disqualify one from

eligibility for safety valve relief under § 3553(f)(5). Id. at 1105 (citing United

States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996)).

      Given that a large portion of this appeal concerns Padilla-Gonzalez’s motion

to suppress his confession, there is no question that Padilla-Gonzalez provided at

least some information to the government. Thus, the government has not carried

its burden of demonstrating that the error was harmless and we must remand to the




                                           6
district court to determine whether Padilla-Gonzalez is eligible for safety valve

relief under 18 U.S.C. § 3553(f).3

      The conviction is AFFIRMED. The sentence is VACATED AND

REMANDED FOR RESENTENCING.




      3
              As we are remanding for resentencing, we need not reach Padilla-
Gonzalez’s claim that the district court abused its discretion by overruling his
objections to the PSR’s failure to give him a downward departure due to his (1)
minor role, (2) status as a provider for his family, or (3) mental history. While the
district court addressed some of these arguments, we note that “when a party raises
a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support
of a requested sentence, then the judge should normally explain why he accepts or
rejects the party’s position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.
2008) (en banc).

                                          7
