                                                                            FILED
                      UNITED STATES COURT OF APPEALS                         APR 23 2013

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                       No. 12-50148

              Plaintiff - Appellee,             D.C. No. 3:11-cr-02076-JAH-1
                                                Southern District of California,
  v.                                            San Diego

MARIO SILVA ZAPATA,
                                                ORDER
              Defendant - Appellant.


Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

       The memorandum disposition filed on February 6, 2013, is hereby amended.

An amended memorandum disposition is filed concurrently with this order.

       With these amendments, the panel has unanimously voted to deny

Appellant’s petition for panel rehearing. Accordingly, Appellant’s petition for

panel rehearing is DENIED. No further petitions for en banc or panel rehearing

shall be permitted.
                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 23 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-50148

              Plaintiff - Appellee,              D.C. No. 3:11-cr-02076-JAH-1

  v.                                             AMENDED
                                                 MEMORANDUM*
MARIO SILVA ZAPATA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                    John A. Houston, District Judge, Presiding

                     Argued and Submitted December 4, 2012
                              Pasadena, California

Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

       Mario Silva Zapata entered a conditional guilty plea agreement to the crime

of importing approximately 66.06 kilograms of marijuana into the United States, in

violation of 21 U.S.C. §§ 952 and 960. As part of the plea, he reserved his right to

appeal the district court’s denial of his motion to suppress inculpatory statements.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
He now appeals that denial. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the adequacy of a Miranda warning de novo. See United States v. San

Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). We also review de novo whether a

defendant’s statement was voluntary. See United States v. Harrison, 34 F.3d 886,

890 (9th Cir. 1994).

      The district court did not err by denying the motion to suppress Zapata’s

confession. Miranda requires that, prior to interrogation, an individual in custody

be given “meaningful advice . . . in language [he] can comprehend and on which

[he] can knowingly act.” San Juan-Cruz, 314 F.3d at 387 (internal quotations and

citations omitted). Here, the statement Zapata alleges confused him, and thus

created an ambiguous warning, occurred after he had waived his Miranda rights.

Because Zapata had waived his rights before the allegedly confusing statement was

made, the statement could not have generated confusion at the time Zapata made

his waiver decision. There was no flaw in the warnings Zapata received; they were

clear and permitted Zapata to act knowingly with respect to his rights. Thus,

Zapata received adequate Miranda warnings. See id. Taken in context, the

interrogators’ post-waiver statements were not so confusing as to undermine

Zapata’s knowing waiver of his rights.

      To use a defendant’s statement against him at trial, the Government “must

prove by a preponderance of the evidence that the statement was voluntary.”
Harrison, 34 F.3d at 890. This court “consider[s] the totality of the circumstances

and determine[s] whether the government obtained the statement by physical or

psychological coercion or by improper inducement so that the suspect’s will was

overborne.” Id. (internal quotations and citations omitted). Here, after Zapata

validly waived his Miranda rights and gave vague or dishonest answers to several

questions, an agent advised him that she could not help him at sentencing if he

gave her no material with which to inform the sentencing process. Another agent

advised him that if he thought his silence was helping him, he was wrong; it was

putting him in a worse position to that he could obtain. The agents emphasized

that Zapata could “help him[self]” by “tak[ing] responsibility” for his crime.

Having assessed the totality of the circumstances, we conclude that the agents’

statements were not coercive and that Zapata’s will was not overborne. Thus,

Zapata’s subsequent confession was voluntary and admissible.

      AFFIRMED.
