United States v. Dionisio Robles Padilla

Opinion

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 to

the Sentencing Guidelines range>.

Page 3, lines 1-2 - change to

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 FILED NOT FOR PUBLICATION MAY 08 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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

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

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.