                                                                            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                             NOT FOR PUBLICATION                             MAR 29 2010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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