                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 12 2010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. 09-50043

              Plaintiff - Appellee,              D.C. No. 3:07-CR-00556-DMS-1

  v.
                                                 MEMORANDUM *
RIGOBERTO ARZATE-MIRANDA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                           Submitted February 10, 2010 **
                               Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL,*** District
Judge.




        *
             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).
        ***
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
                                           -2-

      Defendant appeals the 92-month prison sentence the district court imposed

after a jury found him guilty of unlawful reentry by a previously removed alien, in

violation of 8 U.S.C. § 1326(a)-(b). We have jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). For the following reasons, we affirm, but remand

to correct the judgment.

      First, we reject Defendant’s argument that the district court erroneously

failed to grant him a downward departure for his purported acceptance of

responsibility, per U.S.S.G. § 3E1.1(a). Section 3E1.1(a) may, in “rare situations,”

apply where a defendant “goes to trial to assert and preserve issues that do not

relate to factual guilt . . . .” U.S.S.G. § 3E1.1, cmt. 2 (emphasis added). Here,

despite confessing his crimes to officials at the border, Defendant proceeded to

trial and challenged the factual basis of his guilt, i.e., his prior removal, by

attempting to discredit the Government’s fact witnesses. Accordingly, the district

court’s finding that Defendant had not truly accepted responsibility for purposes of

§ 3E1.1(a) was not clearly erroneous. See United States v. Johnson, 581 F.3d 994,

1001 (9th Cir. 2009); see also United States v. Weiland, 420 F.3d 1062, 1067-69,

1080 (9th Cir. 2005) (finding § 3E1.1 inapplicable where the defendant repeatedly

challenged the admissibility of documents bearing on an essential element of his

offense).
                                          -3-

      Second, we reject Defendant’s contention that the district court committed

reversible error by “fail[ing] to give any identifiable consideration to the relevant

guideline factors, applications, or other pertinent facts in this case.” The district

court plainly acknowledged at the beginning of the sentencing hearing that it had

considered all the documents submitted by the parties, including Defendant’s

objections to the PSR, which laid out all the pertinent facts and authorities on this

issue. The record therefore makes clear that the district court “ha[d] considered the

parties’ arguments and ha[d] a reasoned basis for exercising [its] own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007);

accord United States v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008).

      Third, as Defendant rightly concedes, circuit precedent forecloses his

arguments regarding the scope and continued viability of Almendarez-Torres v.

United States, 523 U.S. 224 (1998), and the constitutionality of 8 U.S.C. § 1326(b).

See United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009) (per

curiam) (listing cases).

      Although we affirm the sentence, we remand the case to the district court

with instructions that it delete from the judgment the reference to 8 U.S.C. §

1326(b). See id. (remanding sua sponte to delete the reference to § 1326(b)(2)).
                                       -4-

We decline to reach the issues raised by Defendant’s supplemental pro se motions.

      AFFIRMED; REMANDED to correct the judgment.
