United States v. Cruz-Tercero

320 F. App'x 553

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2009
• Docket: No. 08-50294
• Status: Published

Opinion

MEMORANDUM

**

Pedro Cruz-Tercero appeals from the 80-month sentence imposed following his bench-trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

Cruz-Tercero contends that the district court procedurally erred at sentencing by failing to consider the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6), and that the resulting sentence is unreasonable. We conclude that the district court did not procedurally err, and that the sentence is reasonable. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).

Cruz-Tercero’s contention that the district court sought to punish him at sentencing for exercising his right to stand trial is unsupported by the record.

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). See United States v. Herrera-Blanco, 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.

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