                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           NOV 05 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50136

               Plaintiff - Appellee,             D.C. No. 2:12-cr-00762-RGK-1

  v.
                                                 MEMORANDUM*
BENJAMIN AVILA-BARRERA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                            Submitted October 21, 2015**
                                Pasadena, California

Before: TROTT, KLEINFELD, and CALLAHAN, Circuit Judges.

       Benjamin Avila-Barrera is a Mexican citizen who was convicted under 8

U.S.C. § 1326(a) of being an illegal alien found in the United States following

deportation.


        *
             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).
      At the first sentencing, the district court sentenced Barrera to fifty-seven

months in prison and three years of supervised release. On appeal, the Ninth

Circuit vacated and remanded for failing to consider two objections Barrera made

to his criminal history calculation. At the second sentencing, the judge sentenced

Barrera to the same punishment. The district court invited Barrera to allocute by

asking, “Did the defendant wish to be heard?” His counsel responded, “No, your

Honor.”

      We affirm but remand to correct a clerical error.



                                    I. Allocution

      The district court did not violate Barrera’s right to allocute under Federal

Rule of Criminal Procedure 32. The judge must “address the defendant personally

in order to permit the defendant to speak or present any information to mitigate the

sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). Here, if we look only at the transcript,

the judge’s invitation could have been directed to Barrera or to Barrera’s counsel.

Rule 32 does not, however, require that the record unambiguously reflect who the

judge was talking to. There is no reason, on this record, to doubt that the judge

was offering Barrera personally the opportunity to speak. We presume the trial

judge knows and correctly applied the law, see United States v. Carty, 520 F.3d


                                          2
984, 992 (9th Cir. 2008) (en banc), so we infer the judge complied with Rule 32

and personally invited Barrera to allocute. To prevent wasteful litigation, trial

judges should “unambiguously address themselves to the defendant,” as suggested

by the Supreme Court plurality in Green v. United States. 365 U.S. 301, 305-06

(1961) (affirming the lower court because the defendant did not show that the

judge did not personally address him).



                            II. Criminal History Category

      Barrera claims the district court miscalculated his Guidelines level. He

argues his prior conviction for failing to register as a sex offender is “relevant

conduct” to the instant offense, rather than part of his criminal history. U.S.

Sentencing Guidelines Manual §§ 1B1.3(a)(1)(B), 4A1.2 cmt. n.1 (U.S. Sentencing

Comm’n 2012); see United States v. Tanke, 743 F.3d 1296, 1306-07 (9th Cir.

2014). The court did not err in finding Barrera’s conviction for failing to register

as a sex offender was a past conviction affecting his criminal history category.

Barrera offered no evidence, only counsel’s arguments, that his motive for

committing that crime was to avoid getting caught for this one, nor is it clear that

that would matter.




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                                 III. Supervised Release

       The judge may arguably have erroneously imposed three years of supervised

release on Barrera, but it was not plain error. “[R]eversal is warranted only where

there has been (1) error; (2) that is plain; (3) that affects substantial rights; and (4)

where the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir.

2011).

       The Guidelines recommend no supervised release for deportable aliens

likely to be deported when the statute of conviction does not require it, unless the

judge “determines” that supervised release would “provide an added measure of

deterrence and protection.” Sentencing Guidelines § 5D1.1(c) & cmt. n.5. There is

no record of the judge making that determination.

       To determine whether the court’s error affected “substantial rights” we ask

whether “the probability of a different result is sufficient to undermine confidence

in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004) (quotation omitted); see United States v. Olano, 507 U.S. 725, 735

(1993). Based on Barrera’s past, it is doubtful that the error, if any, affected

“substantial rights.” Barrera’s history strongly supports that after deportation, he is

likely to return illegally as he has in the past, and his past predatory sexual conduct


                                             4
would require continuing supervision. There is no reason on this record to doubt

that, had the error been brought to the court’s attention, the result would have been

the same.



            IV. Constitutionality of 8 U.S.C. § 1326(b)(2) Enhancement

      Barrera raises the argument that enhancing his sentence under 8 U.S.C.

§ 1326(b)(2) was unconstitutional, but concedes his claim is foreclosed by our

decision in his previous appeal. See also Almendarez-Torres v. United States, 523

U.S. 224 (1998).



                                  V. Clerical Error

      The Judgment Order for Barrera’s conviction says he is guilty of violating

“8 USC 1326(a), (b)(1).” Subsection (b)(1) of § 1326 is a sentencing

enhancement, not a punishable offense. Pursuant to United States v. Rivera-

Sanchez, 222 F.3d 1057, 1062-66 (9th Cir. 2000), we remand for the limited

purpose of instructing the court to delete the Judgment’s reference to subsection

(b)(1).



                          VI. Reassignment to New Judge


                                          5
      This case does not require reassignment to a new judge. See United States v.

Paul, 561 F.3d 970, 975 (9th Cir. 2009) (discussing the “unusual circumstances”

that warrant reassignment).



      Barrera’s sentence is AFFIRMED. We REMAND to the district court to

correct the Judgment Order.




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