                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 09 2011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. 10-50182

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00954-SVW

  v.
                                                 MEMORANDUM *
ENRIQUE GONZALEZ HUERTA, a.k.a.
Enrique Sierra Gonzalez, a.k.a. Gustavo
Gonzalez,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Enrique Gonzalez-Huerta appeals from the 72-month sentence imposed

following his conviction for re-entry after deportation, in violation of 8 U.S.C.

§ 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to

          *
             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).
correct the judgment.

      Gonzalez-Huerta contends that the district court procedurally erred by

failing adequately to discuss the 18 U.S.C. 3553(a) factors and to explain the

deviation from the Guidelines range. We disagree. See United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc).

      Gonzalez-Huerta also contends that his sentence is substantively

unreasonable because the 18 U.S.C. § 3553(a) factors were not individually applied

to his case, and because it is unduly harsh and creates an unwarranted disparity

with similarly situated defendants. In light of the totality of the circumstances and

the 18 U.S.C. § 3553(a) factors, the sentence is substantively reasonable. See Gall

v. United States, 552 U.S. 38, 51 (2007).

      Gonzalez-Huerta additionally contends that the district court failed to

provide notice under Federal Rule of Criminal Procedure 32(h). The record

reflects that the district court varied from the Guidelines under 18 U.S.C.

§ 3553(a), and it had no obligation to provide Gonzalez-Huerta notice. See

Irizarry v. United States, 553 U.S. 708, 714 (2008) (limiting the Rule 32(h) notice

requirement to departures under 18 U.S.C. § 3553(b)).

      Contrary to Gonzalez-Huerta’s contention, he is not entitled to judicial

estoppel.


                                            2                                    10-50182
      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 reference to 8 U.S.C. § 1326(b)(1). See United States

v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to

delete the reference to section 1326(b)).

      AFFIRMED; REMANDED to correct judgment.




                                            3                                    10-50182
