United States v. Miranda

328 F. App'x 453

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 1, 2009
• Docket: No. 08-50405
• Status: Published

Opinion

MEMORANDUM

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Juan Jose Miranda appeals from the 70-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm but remand to correct the judgment.

Miranda contends that his sentence is unreasonable because the district court failed to consider all of the 18 U.S.C. § 3553(a) sentencing factors. We conclude that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).

Miranda also contends that the district court erred when it sentenced him in excess of two years, pursuant to 8 U.S.C. § 1326(b), because the fact of his prior conviction was not alleged in his indictment or proved to a jury beyond a reasonable doubt. As Miranda concedes, this contention is foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc); see also United States v. Covian-Sandoval, 462 F.3d 1090, 1096-97 (9th Cir.2006).

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)).

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.