United States v. Gerardo Avina-Martinez

FILED
NOT FOR PUBLICATION JUL 21 2010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. 09-10349

Plaintiff - Appellee, D.C. No. 4:09-cr-00250-CW

v.
MEMORANDUM *
GERARDO AVINA-MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Submitted June 29, 2010 **

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

Gerardo Avina-Martinez appeals from the 37-month sentence imposed

following his guilty-plea conviction for being a deported alien found in United

States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C.

§ 1291. We affirm, but remand to correct the judgment.

*
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).
 Avina-Martinez contends the district court procedurally erred by failing to

discuss and apply the 18 U.S.C. § 3553(a) sentencing factors and by treating the

advisory Guidelines as the presumptive sentencing range. The record indicates that

the district court considered Avina-Martinez’s arguments, properly applied the

sentencing factors, and did not give undue weight to the advisory Guidelines

sentencing range. See Rita v. United States, 551 U.S. 338, 356-59 (2007); United

States v. Carty, 520 F.3d 984, 991-92, 995 (9th Cir. 2008) (en banc).

Avina-Martinez further argues that his sentence is substantively

unreasonable because it fails to reflect that he reentered and stayed due to a family

tragedy that left him with diminished capacity; his criminal history is overstated;

and the 12-level sentencing enhancement was triggered by an anomalous and old

narcotics conviction. The record reflects that under the totality of the

circumstances, including the section 3553(a) factors, Avina-Martinez’s bottom-of-

the Guidelines sentence is reasonable. See Carty, 520 F.3d at 993; cf. United

States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009).

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 section 1326(b). See United

2 09-10349
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.

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