United States v. Rodriguez-Cadena

328 F. App'x 416

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 2009
• Docket: No. 07-30455
• Status: Published

Opinion

MEMORANDUM

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Jesus Rodriguez-Cadena appeals from the 37-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

Rodriguez-Cadena contends the district court erred by relying on a state court minute order to determine that he was convicted of violating a statute that categorically qualifies as a drug trafficking offense, pursuant to U.S.S.G. § 2L1.2(b)(l)(B). This contention lacks merit. See United States v. Snellenberger, 548 F.3d 699, 702 (9th Cir.2008) (en banc).

Rodriguez-Cadena further contends that his sentence is unreasonable because the district court failed to properly consider the factors set forth in 18 U.S.C. § 3553(a). We conclude that the district court did not proeedurally err and that the sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Carty, 520 F.3d 984, 990-93 (9th Cir.2008) (en banc).

Next, we decline Rodriguez-Cadena’s request for a remand to make sure that the district court properly exercised its discretion in analyzing the § 3553(a) factors. See Rita v. United States, 551 U.S. 338, 356-59, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

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

AFFIRMED; REMANDED to correct the judgment.

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