                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 23 2011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. 10-50037

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00850-GAF

    v.
                                                 MEMORANDUM *
FERNANDO HERNANDEZ GOMEZ,
a.k.a. Fernando Hernandez,

               Defendant - Appellant.



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

                            Submitted February 15, 2011 **

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

         Fernando Hernandez Gomez appeals from the 70-month sentence imposed

following his guilty-plea conviction for being an illegal alien found in the United




          *
             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).
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

      Hernandez Gomez first contends that the district court committed procedural

error by imposing a sentence based on clearly erroneous facts and by giving

excessive weight to one of the 18 U.S.C. § 3553(a) factors while giving

insufficient weight to the others.

      Hernandez Gomez has not demonstrated that any of the alleged factual

errors by the district court affected his substantial rights. See United States v.

Dallman, 533 F.3d 755, 761-62 (9th Cir. 2008). His other contention of procedural

error is belied by the record.

      Hernandez Gomez next contends that his sentence is substantively

unreasonable. Given the age of Hernandez Gomez’s prior conviction and the other

aspects of his criminal history, application of the 16-level prior conviction

enhancement did not result in an unreasonable sentence in this case. See United

States v. Valencia-Barragan, 608 F.3d 1103, 1108-09 (9th Cir. 2010). The record

reflects that the 70-month sentence is substantively reasonable in light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v.

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




                                            2                                     10-50037
      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 section 1326(b)(2). We decline to

instruct the district court to conform the written judgment to the oral

pronouncement of sentence by deleting the phrase “or ordinance,” because there is

no conflict between them. See United States v. Hicks, 997 F.2d 594, 597 (9th Cir.

1993) (written judgment should be amended where it is inconsistent with oral

pronouncement).

      AFFIRMED; REMANDED to correct the judgment.




                                           3                                     10-50037
