Opinion · United States Court of Appeals for the Ninth Circuit

U.S. v. GARCIA-GRACIAN, 329 Fed.Appx. 145 (9th Cir. 2009)

United States, Plaintiff-Appellee, v. Jose AntonioGARCIA-GRACIAN, Defendant-Appellant., 329 F. App'x 145 (United States Court of Appeals, Ninth Circuit.Page 146 2009)

Type
Opinion
Court
United States Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
2009-07-21
Topic
general

U.S. v. GARCIA-GRACIAN, 329 Fed.Appx. 145 (9th Cir. 2009) UNITED STATES of America, Plaintiff-Appellee, v. Jose AntonioGARCIA-GRACIAN, Defendant-Appellant. No. 08-50458.United States Court of Appeals, Ninth Circuit.Submitted July 14, 2009.[fn*] Filed July 21, 2009. [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.][fn*] The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P.34(a)(2).

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U.S. v. GARCIA-GRACIAN,329 Fed.Appx. 145(9th Cir. 2009)
UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio
GARCIA-GRACIAN, Defendant-Appellant.
No. 08-50458.
United States Court of Appeals, Ninth Circuit.
Page 146
Submitted July 14, 2009.fn*
Filed July 21, 2009.
Caroline Han, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.

Arza Feldman, Steven Alan Feldman, Feldman Feldman, Uniondale, NY, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding. D.C. No. 3:08-cr-01185-IEG.
Before: SCHROEDER, THOMAS, and WARDLAW, Circuit Judges.
MEMORANDUMfn**
Jose Antonio Garcia-Gracian appeals from the 63-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of8 U.S.C. § 1326. We have jurisdiction pursuant to28 U.S.C. § 1291, and we affirm but remand to correct the judgment.

Garcia-Gracian contends that the district court erred when it failed to grant him a downward departure, pursuant to U.S.S.G. §5K2.0, based on pre-indictment delay. He also contends that his sentence is unreasonable. We review both contentions for reasonableness.See United States v. Dallman,533 F.3d 755,760-61(9th Cir. 2008);United States v.Carty,520 F.3d 984,993(9th Cir. 2008) (en banc). The district court did not procedurally err and the sentence is not substantively unreasonable.See Carty,520 F.3d at 991-93.

In accordance withUnited 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 to8 U.S.C. § 1326(b).AFFIRMED; REMANDED to correct the judgment.
  1. [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ↩
  2. The panel unanimously finds this case suitable for decision without oral argument.SeeFed.R.App.P.34(a)(2). ↩
  3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ↩