United States v. Perez-Rodriguez, 021218 FED9, 17-10167

Docket Nº:17-10167
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ANGEL PEREZ-RODRIGUEZ, AKA Jose Angel Perez Rodriguez, Defendant-Appellant.
Judge Panel:Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON, District Judge.
Case Date:February 12, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSE ANGEL PEREZ-RODRIGUEZ, AKA Jose Angel Perez Rodriguez, Defendant-Appellant.

No. 17-10167

United States Court of Appeals, Ninth Circuit

February 12, 2018

NOT FOR PUBLICATION

Argued and Submitted November 16, 2017 San Francisco, California

Appeal from the United States District Court No. 2:16-cr-00619-ROS-1 for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON, [**] District Judge.

ORDER

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 The memorandum disposition filed on December 22, 2017 is withdrawn.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.

MEMORANDUM [*]

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 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...

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