FILED
NOT FOR PUBLICATION SEP 29 2010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. 09-10425
Plaintiff - Appellee, D.C. No. 5:08-cr-00512-JF
v.
MEMORANDUM *
OMAR CARBALLO-DELGADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Omar Carballo-Delgado appeals his jury-trial conviction for illegal re-entry
following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
*
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).
Carballo-Delgado contends that we must vacate his conviction because the
penalty sheet accompanying his superseding indictment misstated the applicable
statutory maximum, and the district court did not advise Carballo-Delgado of the
correct statutory maximum when Carballo-Delgado was re-arraigned on this
indictment.
Even assuming, without deciding, that error occurred, Carballo-Delgado
cannot establish that substantial rights were affected. See United States v. Olano,
507 U.S. 725, 731-34 (1993) (describing plain error standard). The record does not
support Carballo-Delgado’s contention that, at the time he elected to proceed to
trial, he believed he faced a statutory maximum of ten years rather then twenty
years. Both the original information to which Carballo-Delgado pled not guilty
and the pre-plea investigative report requested and considered by the parties prior
to Carballo-Delgado’s re-arraignment included the correct statutory maximum.
Carballo-Delgado therefore fails to establish “a reasonable probability that, but for
[the error claimed], the result of the proceeding would have been different.”
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (citation omitted).
AFFIRMED.
2 09-10425