Opinion
No. 07-50366.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed November 5, 2008.
Christopher A. Ott, Esquire, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Brian P. Funk, Esquire, Law Office of Debra Dilorio, 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-06-00146-JM.
Before HAWKINS, RAWLINSON, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Jorge Ortega-Villalobos appeals from the 42-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, 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.
Ortega-Villalobos contends that the sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a) factors. 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, 991-94 (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 Ortega-Villalobos was convicted of only 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)).
AFFIRMED; REMANDED to correct judgment.