United States v. Barreda

519 F. App'x 505

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2013
• Docket: No. 12-50093
• Status: Published

Opinion

MEMORANDUM

**

Daniel Lomeli Barreda appeals from the district court’s judgment and challenges his guilty-plea conviction and 46-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Barre-da’s counsel has filed a brief stating that there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Barreda the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.

Barreda waived his right to appeal his conviction and sentence, with the exception of an appeal based on the court’s calculation of his criminal history category. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief as to the criminal history category calculated by the court. We therefore affirm as to that issue. We dismiss the remainder of the appeal in light of the valid appeal waiver. See United States v. Watson, 582 F.3d 974, 988 (9th Cir.2009).

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)(remanding sua sponte to delete the reference to § 1326(b)).

Counsel’s motion to withdraw is GRANTED.

AFFIRMED in part; DISMISSED in part; REMANDED to correct the judgment.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.