United States v. Anibal Diaz-rodriguez

FILED NOT FOR PUBLICATION APR 21 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-50391

Plaintiff - Appellee, D.C. No. 3:08-cr-01001-LAB

v. MEMORANDUM * ANIBAL DIAZ-RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted April 5, 2010 ** Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

Anibal Diaz-Rodriguez appeals from the 40-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

States, 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.

Diaz-Rodriguez contends that the district court procedurally erred by focusing on the need for deterrence and failing to consider all the 18 U.S.C. § 3553(a) sentencing factors. The record indicates that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

Diaz-Rodriguez also contends that his sentence is substantively unreasonable in light of the age of a prior conviction. The record indicates that the sentence is substantively reasonable in light of the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51-52 (2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009) (“It is unreasonable . . . to treat a decades-old enhancing conviction as requiring as much deterrence as a recent conviction.”) (emphasis added).

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 judgment.

Footnotes

[2] 08-50391

[3] 08-50391