United States v. Maria-Juarez

383 F. App'x 604

Opinion

MEMORANDUM

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Jose Maria-Juarez appeals from the 70-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(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

Maria-Juarez contends that the district court procedurally erred at sentencing by (1) refusing to consider imposing a lower sentence in order to achieve paxity with fast-track defendants; (2) treating the Sentencing Guidelines as mandatory; and (3) failing to adequately explain the sentence. The record indicates that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 994-96 (9th Cir.2008) (en banc); see also United States v. Gonzalez-Zotelo, 556 F.3d 736, 739-41 (9th Cir.2009).

Maria-Juarez also contends that his sentence is substantively unreasonable in light of his mitigating personal circumstances and the age of the prior conviction that was the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii). The record reflects that the 70-month sentence is substantively x'easonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.2009).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand with instructions that the distxict court 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 to delete the reference to § 1326(b) because it is a sentence enhancement and not a separate punishable offense).

Maria-Juarez’s motion for judicial notice is denied.

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.