FILED
NOT FOR PUBLICATION FEB 23 2011
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. 10-50037
Plaintiff - Appellee, D.C. No. 2:09-cr-00850-GAF
v.
MEMORANDUM *
FERNANDO HERNANDEZ GOMEZ,
a.k.a. Fernando Hernandez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Fernando Hernandez Gomez appeals from the 70-month sentence imposed
following his guilty-plea conviction for being an illegal 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 following 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.
Hernandez Gomez first contends that the district court committed procedural
error by imposing a sentence based on clearly erroneous facts and by giving
excessive weight to one of the 18 U.S.C. § 3553(a) factors while giving
insufficient weight to the others.
Hernandez Gomez has not demonstrated that any of the alleged factual
errors by the district court affected his substantial rights. See United States v.
Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008). His other contention of procedural
error is belied by the record.
Hernandez Gomez next contends that his sentence is substantively
unreasonable. Given the age of Hernandez Gomez’s prior conviction and the other
aspects of his criminal history, application of the 16-level prior conviction
enhancement did not result in an unreasonable sentence in this case. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010). The record
reflects that the 70-month sentence is substantively reasonable in light of the
totality of the circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v.
United States, 552 U.S. 38, 51 (2007).
2 10-50037
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 reference to section 1326(b)(2). We decline to
instruct the district court to conform the written judgment to the oral
pronouncement of sentence by deleting the phrase “or ordinance,” because there is
no conflict between them. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir.
1993) (written judgment should be amended where it is inconsistent with oral
pronouncement).
AFFIRMED; REMANDED to correct the judgment.
3 10-50037