Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Becky S. Walker, Esq., Office of the U.S. Attorney Criminal Division, Shannon P. Ryan, Esq., United States Attorney Asst. U.S. Attorney, Narcotics Section, Los Angeles, CA, for Plaintiff-Appellee.
Davina T. Chen, Esq., Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CR-05-00409-NM.
Before: LEAVY, W. FLETCHER, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Hessler Mendoza-Mendoza appeals from the 77-month sentence imposed following his conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm and remand.
Appellant contends his sentence is unreasonable because the sentencing judge "misapprehended" the amount of time he had previously served in prison for a prior state conviction. After reviewing the record, we conclude that the sentence is not unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, --- U.S. ----, 126 S.Ct. 2314, 164 L.Ed.2d 832 (2006).
Appellant also contends that 8 U.S.C. § 1326(b)(2) is unconstitutional. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000)
Page 848.
(remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED.