United States v. Juan Eriberto

615 F. App'x 420

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2015
• Docket: 14-10516
• Status: Unpublished

Opinion

MEMORANDUM **

Juan Andres Eriberto appeals from the district court’s judgment and challenges the 57-month sentence imposed following his guilty-plea 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, and we affirm but remand with instructions to the district court to correct the judgment.

Eriberto contends that the district court abused its discretion by failing to depart or vary downward to account for his cultural assimilation and the fact that his Guidelines offense level overstated his criminal history. To the extent that Eriberto challenges the district court’s failure to depart under the commentary to U.S.S.G. § 2L1.2, our review is limited to determining whether the court imposed a substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1004-05 (9th Cir.2012). Contrary to Eri-berto’s argument, the low-end Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Eriberto’s criminal history. 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 this case to the district court with instructions that it delete from the judgment the reference to section 1326(b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to section 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.