Opinion
No. 07-50544.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 5, 2008.
Before: HAWKINS, RAWLINSON, and M. SMITH, Circuit Judges.
Lynn H. Ball, Esq., Law of Lynn H. Ball, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CR-07-01238-JM.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Baltazar Barocio-Suarez appeals from the 46-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Barocio-Suarez contends that the district court erred by failing to consider his family and financial circumstances, failing to adequately state its reasons for the sentence, and failing to understand its discretion under the advisory guidelines. We conclude that the district court did not procedurally err, and that the sentence is substantively reasonable. See Gall v. United States, ___ U.S. ___, ___ _ ___, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); See also United States v. Carty, 520 F.3d 984, 991, 994-95 (9th Cir. 2008) (en banc), cert. denied sub nom. Zavala v. United States, ___ U.S. ___, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008).
We remand to the district court with directions to correct the judgment of conviction to exclude the reference to 8 U.S.C. § 1326(b) because Barocio-Suarez was only convicted of one crime. See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).