Opinion
No. 08-50556.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed August 31, 2009.
Robert Steven Huie, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Doug Keller, Federal Public Defender, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Roger T. Benitez, District Judge, Presiding. D.C. No. 3:07-CR-02806-BEN.
Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Juan Carlos Peraza-Carrillo appeals from the 52-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.
Peraza-Carrillo contends that the district court procedurally erred by imposing a sentence that it considered "reasonable" rather than one that was "sufficient, but not greater than necessary" to accomplish the goals of sentencing under 18 U.S.C. § 3553(a). We review for plain error, see United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and affirm because Peraza-Carrillo has not established any error affected his substantial rights, see id. at 761-62.
As Peraza-Carrillo acknowledges, his contention that the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is fore-closed. See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per curiam).
We remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000); see also United States v. HerreraBlanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).
AFFIRMED; REMANDED to correct the judgment.