FILED
NOT FOR PUBLICATION OCT 03 2011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. 10-50319
Plaintiff - Appellee, D.C. No. 2:09-cr-00595-AG
v.
MEMORANDUM *
JOSE ANGEL GALAVIZ, a.k.a. Jose
Galaviz,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Jose Angel Galaviz appeals from his guilty-plea conviction and 37-month
sentence for being an illegal alien found in the United States following deportation,
in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738
*
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).
(1967), Galaviz’s counsel has filed a brief stating there are no grounds for relief,
along with a motion to withdraw as counsel of record. We have provided the
appellant with the opportunity to file a pro se supplemental brief. No pro se
supplemental brief or answering brief has been filed.
Galaviz waived his right to appeal his sentence with the exception of the
court’s calculation of his criminal history category. Our independent review of the
record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81 (1988), discloses no
arguable grounds for relief as to the defendant’s conviction and indicates that the
appeal waiver is operative. Accordingly, we dismiss the appeal of the sentence in
part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). With
regard to the court’s calculation of the criminal history category, our independent
review of the record discloses no arguable grounds for relief on direct appeal, and
we affirm.
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 8 U.S.C. § 1326(b). See United
2 10-50319
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete the reference to § 1326(b)).
Counsel’s motion to withdraw is GRANTED.
AFFIRMED in part; DISMISSED in part; REMANDED to correct the
judgment.
3 10-50319