United States v. Ulisses Montes-Gutierrez

368 F. App'x 808

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2010
• Docket: 08-50511
• Status: Unpublished

Opinion

MEMORANDUM **

Ulisses Montes-Gutierrez appeals from the 46-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, 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.

Montes-Gutierrez contends that the district court violated Fed.R.Crim.P. 32 by (1) denying him his right of allocution; and (2) failing to verify whether he had read and reviewed the presentence investigation report with his attorney. The record indicates that any error was harmless because the district court imposed the sentence to which the parties stipulated in Montes-Gutierrez’s Fed.R.Crim.P. 11(c)(1)(C) plea agreement. See United States v. Ortega-Lopez, 988 F.2d 70, 72-73 (9th Cir.1993); see also United States v. Soltero, 510 F.3d 858, 863 (9th Cir.2007) (per curiam).

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 § 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 provid ed by 9th Cir. R. 36-3.