FILED
NOT FOR PUBLICATION OCT 04 2010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. 09-30400
Plaintiff - Appellee, D.C. No. 2:09-cr-00060-JLQ
v.
MEMORANDUM *
ANTONIO PAMATZ-HUERTA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Antonio Pamatz-Huerta appeals from the 77-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
deportation, in violation of 8 U.S.C. § 1326. 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).
Pamatz-Huerta contends that his sentence on the low-end of the advisory
Guideline range is both substantively and procedurally unreasonable because it is
calculated based on the 16-point crime of violence enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), that he contends lacks justification, conflicts with the primary
purpose of sentencing, and is excessively harsh. To the extent that Pamatz-Huerta
challenges the validity of the crime of violence enhancement, his challenge is
foreclosed. See United States v. Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir.
2001) (“Congress made abundantly clear when it amended the illegal reentry
statute (8 U.S.C. § 1326(b)) that it wished to enhance the penalties for aliens with
prior convictions in order to deter others.”).
Pamatz-Huerta also contends that the district court procedurally erred by
neglecting to meaningfully address his mitigating argument and by failing to
explain why a lesser sentence would not have satisfied the parsimony principle.
The record reflects that the district court considered the section 3553(a) factors,
provided a reasoned explanation for the sentence, and did not otherwise
procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008)
(en banc); see also United States v. Diaz-Argueta, 564 F.3d 1047, 1051-52 (9th
Cir. 2009).
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Pamatz-Huerta last contends that his sentence based on the 16-point crime of
violence enhancement is substantively unreasonable because it violates the
parsimony principle. The record reflects that the 77-month sentence is
substantively reasonable in light of the totality of the circumstances and the section
3553(a) factors. 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).
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)).
AFFIRMED; REMANDED to correct the judgment.
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