FILED
NOT FOR PUBLICATION MAR 29 2010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. 09-30194
Plaintiff - Appellee, D.C. No. 3:06-cr-00446-JO
v.
MEMORANDUM *
RODRIGO DIAZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Rodrigo Diaz-Lopez appeals from the 72-month sentence imposed
*
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).
GT/Research
following his guilty-plea conviction for illegal re-entry after deportation, 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-Lopez contends that the district court improperly considered certain
personal characteristics at sentencing. We review for plain error, see United States
v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008), and affirm because Diaz-Lopez has
not established plain error by the district court, much less that consideration of
these personal characteristics affected his substantial rights, see id. at 761-62.
Diaz-Lopez also contends that the sentence is substantively unreasonable. In
light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing
factors, the below-guideline sentence was not unreasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
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 judgment.
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