FILED

UNITED STATES COURT OF APPEALS

OCT 25 2017

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 16-50167

Plaintiff-Appellee, D.C. No. 3:08-cr-04304-BEN-1 Southern District of California, v. San Diego

ADRIAN ZITLALPOPOCA-

HERNANDEZ, ORDER

Defendant-Appellant.

Before: W. FLETCHER and IKUTA, Circuit Judges, and FREUDENTHAL,* Chief District Judge.

The court’s memorandum disposition filed September 26, 2017, is hereby

amended as follows:

The fifth paragraph of the memorandum disposition previously read:

Finally, appellant argues that his sentence was substantively unreasonable. A sentence is not substantively unreasonable where “the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Ruiz-Apolonio, 657 F.3d 907, 911 (9th Cir. 2011) (internal quotations omitted). The record here reflects meaningful consideration of the 18 U.S.C. § 3553(a) factors, spanning three sentencing proceedings. The sentence was not substantively unreasonable.

* The Honorable Nancy Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation. The memorandum disposition is amended so that the fifth paragraph now

reads:

Because we reverse and remand on procedural grounds, we do not reach the question of whether the sentence was substantively reasonable. See, e.g., United States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008).

With that amendment, Defendant-Appellant’s petition for panel rehearing is

DENIED. The petition for rehearing en banc remains pending. No further petitions

for rehearing or for rehearing en banc may be filed.

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