United States v. Loza

192 F. App'x 666

Opinion

MEMORANDUM

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Jose Martinez-De Loza appeals from the 40-month sentence imposed following his guilty plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the sentence and remand for correction of the judgment.

Martinez-De Loza contends that the district court’s refusal to consider whether there was “unwarranted disparity” between his sentence and the sentences imposed on defendants who have been offered fast-track dispositions renders his sentence unreasonable under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Upon review of the record, we conclude that the district court did consider potentially unwarranted sentencing disparity, but found that these principles were not implicated because fast-track defendants were charged with violating a different statute with lower penalties. This finding did not render his sentence unreasonable under Booker. See United States v. Marcial-Santiago, 447 F.3d 715, 717-19 (9th Cir.2006). The district court calculated the advisory Guidelines range, considered and rejected Martinez-De Loza’s contentions regarding sentencing disparity, weighed the 18 U.S.C. § 3553(a) sentencing factors in detail, and imposed a sentence — 17 months below the Guidelines range — that we conclude is reasonable under our case law. See id. at 719, citing United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.2006). We affirm the sentence.

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 reference to § 1326(b)(2). See United States v. Herrero-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.