United States v. Jose Galaviz

451 F. App'x 670

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2011
• Docket: 10-50319
• Status: Unpublished

Opinion

MEMORANDUM **

Jose Angel Galaviz appeals from his guilty-plea conviction and 37-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), Galaviz’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.

Galaviz waived his right to appeal his sentence with the exception of the court’s calculation of his criminal history category. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief as to the defendant’s conviction and indicates that the appeal waiver is operative. Accordingly, we dismiss the appeal of the sentence in part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000). With regard to the court’s calculation of the criminal history category, our independent review of the record discloses no arguable grounds for relief on direct appeal, and we affirm.

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)).

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 9 th Cir. R. 36-3.