                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 20 2013

                                                                        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. 12-30144

                Plaintiff - Appellee,            D.C. No. 1:11-cr-00215-BLW

  v.
                                                 MEMORANDUM *
NICANOR ZARATE-ZENAIDO,

                Defendant - Appellant.



                     Appeal from the United States District Court
                               for the District of Idaho
                     David O. Carter, District Judge, Presiding **

                              Submitted May 14, 2013 ***

Before:         LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Nicanor Zarate-Zenaido appeals from the district court’s judgment and

challenges the 30-month sentence imposed following his guilty-plea conviction for



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable David O. Carter, United States District Judge for the
Central District of California, sitting by designation.
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291, and we affirm, but remand to correct the judgment.

      Zarate-Zenaido contends that his sentence is substantively unreasonable

under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), in light of

the staleness of his prior conviction and lack of intervening criminal conduct. The

district court did not abuse its discretion in imposing Zarate-Zenaido’s sentence.

See Gall v. United States, 552 U.S. 38, 51 (2007). The record reflects that the

district court varied downward to reflect its belief that Zarate-Zenaido’s criminal

history was overstated. In light of the totality of the circumstances and the 18

U.S.C. § 3553(a) sentencing factors, the below-Guidelines sentence is

substantively reasonable. See id.

      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 8 U.S.C. § 1326(b)(2). 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 the judgment.




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