United States v. Garcia-Munoz

333 F. App'x 288

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 30, 2009
• Docket: No. 08-50568
• Status: Published

Opinion

MEMORANDUM

**

Apolinar Garcia-Munoz appeals from the 54-month sentence imposed following his jury-trial conviction for being a deported alien found in the United States, 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.

Garcia-Munoz contends that the district court erred at sentencing by failing to properly apply the parsimony principle embodied in 18 U.S.C. § 3553(a). The record reflects that district court did not procedurally err, and that Garcia-Munoz’s sentence is not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also United States v. Nichols, 464 F.3d 1117, 1124-26 (9th Cir.2006).

As Garcia-Munoz concedes, his argument that United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.2008), should be overruled may not be considered by a three judge panel. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001).

Next, as Garcia-Munoz concedes, his contention that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be overruled is foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc).

Finally, 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. 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.