FILED
NOT FOR PUBLICATION JAN 04 2010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. 09-30147
Plaintiff - Appellee, D.C. No. 3:07-CR-00448-ALH
v.
MEMORANDUM *
JOSE SERAFIN RAMIREZ-DE LA
CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Jose Serafin Ramirez-De La Cruz appeals from the 57-month sentence
imposed following his guilty-plea conviction for illegal reentry, in violation of
*
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).
SZ/Research
8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm,
but remand to correct the judgment.
Ramirez-De La Cruz contends that his sentence is unreasonable because: (1)
it is based on a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A),
which is an inherently flawed Guideline; (2) application of the 16-level
enhancement resulted in a Guidelines’ range that was greater than necessary to
achieve the purposes of sentencing; (3) the district court failed to consider the 18
U.S.C. § 3553(a) sentencing factors; and (4) the district court failed to consider his
argument regarding the 16-level increase and his argument in favor of a departure
based on assimilation. The record indicates that the district court did not
procedurally err and that Ramirez-De La Cruz’s sentence is substantively
reasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en
banc); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-58 (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 § 1326(b)(2). See United States
v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
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AFFIRMED; REMANDED to correct the judgment.
SZ/Research 3 09-30147