FILED
NOT FOR PUBLICATION APR 21 2010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. 08-50391
Plaintiff - Appellee, D.C. No. 3:08-cr-01001-LAB
v.
MEMORANDUM *
ANIBAL DIAZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Anibal Diaz-Rodriguez appeals from the 40-month sentence imposed
following his guilty-plea conviction for being a deported 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, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28
U.S.C. § 1291. We affirm, but remand to correct the judgment.
Diaz-Rodriguez contends that the district court procedurally erred by
focusing on the need for deterrence and failing to consider all the 18 U.S.C.
§ 3553(a) sentencing factors. The record indicates that the district court did not
procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008)
(en banc).
Diaz-Rodriguez also contends that his sentence is substantively
unreasonable in light of the age of a prior conviction. The record indicates that the
sentence is substantively reasonable in light of the totality of the circumstances.
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) (“It is unreasonable . . . to treat a
decades-old enhancing conviction as requiring as much deterrence as a recent
conviction.”) (emphasis added).
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 § 1326(b). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
2 08-50391
AFFIRMED; REMANDED to correct judgment.
3 08-50391