Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding.
Before FERNANDEZ, TASHIMA, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Cecelio Madrigal-Perez appeals his conviction and 60-month sentence imposed following his guilty plea for illegally reentering the United States after being deported subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). His attorney filed a brief under Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw as counsel of record. Madrigal-Perez did not file a pro se supplemental brief.
Counsel identified only one potential issue for review regarding the crediting of time spent in state custody against the federal sentence. Because the district court entered an amended judgment crediting appellant for this time, this issue is now moot.
We note, however, the district court entered judgment of conviction on a single count under both 8 U.S.C. § 1326(a) and (b)(1). Section 1326(b) does not define a separate crime. See Almendarez-Torres v. United States, 118 S.Ct. 1219, 1226 (1998); United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir.1998). Our examination of counsel's brief and our independent review of the record under Pension v. Ohio, 488 U.S. 75, 83 (1988), disclose no further issues requiring review. Accordingly, we affirm but remand with directions to correct the judgment by striking reference to Section 1326(b)(1). See 28 U.S.C. § 2106. Counsel's motion to withdraw as counsel of record is granted.
AFFIRMED.