United States v. Elias Gomez

FILED
NOT FOR PUBLICATION AUG 02 2010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. 08-50210

Plaintiff - Appellee, D.C. No. 3:07-cr-01369-RTB

v.
MEMORANDUM *
ELIAS GOMEZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Submitted June 29, 2010 **

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

Elias Gomez appeals from the 70-month sentence imposed following his

jury-trial conviction for being a deported alien found in the United States, 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.

*
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).
 Gomez contends that the district court erred by determining that his prior

conviction for assault with a deadly weapon on a peace officer, in violation of

California Penal Code § 245(c), constituted a crime of violence under U.S.S.G.

§ 2L1.2, because it does not contain the requisite intent. This contention is

foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1196-97 (9th Cir. 2009).

Gomez also contends that the district court erred when it imposed a sentence

in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He contends

that the avoidance of constitutional doubt doctrine limits the holding of

Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Almendarez-

Torres has been overruled. These contentions are foreclosed. See United States v.

Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (en banc).

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

States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte

to delete the reference to section 1326(b)). We also instruct the district court to

correct the judgment so that it reflects the fact that Gomez was found guilty on

Count One of the indictment after a plea of not guilty.

AFFIRMED; REMANDED to correct judgment.

2 08-50210