United States v. Fernando Gomez

415 F. App'x 787

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2011
• Docket: 10-50037
• Status: Unpublished

Opinion

MEMORANDUM **

Fernando Hernandez Gomez appeals from the 70-month sentence imposed fol lowing 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.

Hernandez Gomez first contends that the district court committed procedural error by imposing a sentence based on clearly erroneous facts and by giving excessive weight to one of the 18 U.S.C. § 3553(a) factors while giving insufficient weight to the others.

Hernandez Gomez has not demonstrated that any of the alleged factual errors by the district court affected his substantial rights. See United States v. Dallman, 533 F.3d 755, 761-62 (9th Cir.2008). His other contention of procedural error is belied by the record.

Hernandez Gomez next contends that his sentence is substantively unreasonable. Given the age of Hernandez Gomez’s prior conviction and the other aspects of his criminal history, application of the 16-level prior conviction enhancement did not result in an unreasonable sentence in this case. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir.2010). The record reflects that the 70-month sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586,169 L.Ed.2d 445 (2007).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the ease to the district court with instructions that it delete from the judgment the reference to section 1326(b)(2). We decline to instruct the district court to conform the written judgment to the oral pronouncement of sentence by deleting the phrase “or ordinance,” because there is no conflict between them. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir.1993) (written judgment should be amended where it is inconsistent with oral pronouncement).

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.