FILED
NOT FOR PUBLICATION JAN 07 2010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. 09-50027
Plaintiff - Appellee, D.C. No. 3:07-CR-03475-IEG
v.
MEMORANDUM *
CARLOS SOTO-LOPEZ, AKA Carlos
Soto, AKA Manuel Urias-Castro, AKA
Carlos Mendoza-Camacho,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Carlos Soto-Lopez appeals from the 77-month sentence imposed following
his guilty-plea conviction for being a deported alien found in the United States, in
*
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).
EG/Research
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. We grant the parties’
requests to take judicial notice of certain documents outside the district court
record.
Soto-Lopez contends that the district court procedurally erred by failing to
address adequately his argument that he was entitled to the 48-month sentence he
would have received had his attorney not advised him to reject the government’s
“fast-track” offer. Our review of the record indicates that the judge adequately
addressed this argument. See Rita v. United States, 551 U.S. 338, 359 (2007);
United States v. Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en banc).
Soto-Lopez also contends that the district court abused its discretion in
imposing the 77-month sentence at the bottom of the Guidelines range rather than
the 48-month sentence he would have received had he accepted the government’s
offer. Considering the totality of the circumstances, the district court’s sentence
was not substantively unreasonable. See United States v. Vasquez-Landaver, 527
F.3d 798, 804-05 (9th Cir. 2008) (district court did not abuse its discretion in
rejecting defendant’s request for 48-month “fast-track” sentence offered by
government and rejected).
Finally, as Soto-Lopez concedes, his contention that the sentencing judge
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violated the Fifth and Sixth Amendments by increasing his sentence pursuant to an
aggravated felony finding is foreclosed. See Almendarez-Torres v. United States,
523 U.S. 224 (1998).
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)).
AFFIRMED; REMANDED to correct the judgment.
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