United States v. Orosco-Cortez

264 F. App'x 589

Opinion

MEMORANDUM

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Juan Manuel Orosco-Cortez appeals from the 95-month sentence imposed following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.

Orosco-Cortez contends that the district court erred by failing to recognize that it had authority to depart downwards under U.S.S.G. § 5K2.11, or based upon the totality of the circumstances. However, we have stated that the district court need not “calculate what departure[s] would be allowable under the old mandatory [Guidelines] scheme.” See United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006). The record reflects that the district court properly considered Orosco-Cortez’s departure-related contentions within the context of its analysis of the factors set forth in 18 U.S.C. § 3553(a). See id. at 986-87.

We remand to the district court with instructions to correct the reference in the judgment to “8 U.S.C. § 1326(a), (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 to correct judgment.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.