United States v. Cesar Dorado-Avila

407 F. App'x 240

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 5, 2011
• Docket: 09-50535
• Status: Unpublished

Opinion

MEMORANDUM **

Cesar Dorado-Avila appeals from the 60-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

Dorado-Avila contends the district court plainly erred by imposing conditions of supervised release concerning drugs and alcohol. It was not plain error for the district court to impose a mandatory condition of supervised release requiring Dora-do-Avila to refrain from unlawful use of a controlled substance and submit to drug testing, see 18 U.S.C. § 3563(a)(5); United States v. Carter, 159 F.3d 397, 399-400 (9th Cir.1998), or to impose a standard discretionary condition requiring Dorado-Avila to refrain from excessive use of alcohol or the use, possession, distribution or administration of controlled substances without a prescription, see 18 U.S.C. § 3563(b)(7). Any error regarding these conditions “did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” See United States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th Cir.2006).

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 section 1326(b). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to section 1326(b)).

AFFIRMED; REMANDED to correct judgment.

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