                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 02 2010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. 08-50137

               Plaintiff - Appellee,             D.C. No. 3:07-cr-02436-BTM

   v.
                                                 MEMORANDUM *
 NOE ANTONIO ENRIQUEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Southern District of California
                    Barry T. Moskowitz, District Judge, Presiding

                            Submitted February 16, 2010 **

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

        Noe Antonio Enriquez appeals from the 57-month sentence imposed

following his guilty-plea conviction for attempted entry after deportation, in

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

          *
             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).

AK/Research
§ 1291. We affirm, but remand to correct the judgment.

       Enriquez contends that the district court erred at sentencing by: (1)

presuming the Guidelines range to be reasonable; and (2) placing an undue

emphasis on the Guidelines. He also contends that his sentence is unreasonable in

light of the factors set forth in 18 U.S.C. § 3553(a), and due to the harsh nature of

the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The record reflects

that the district court did not procedurally err, and that the sentence imposed is

substantively reasonable under the totality of the circumstances. See Gall v. United

States, 552 U.S. 38, 49-50 (2007); see also United States v. Carty, 520 F.3d 984,

992-93 (9th Cir. 2008) (en banc).

       Enriquez also contends that the use of his prior drug and carjacking

convictions to both enhance his sentence under U.S.S.G. § 2L1.2(b)(1)(A) and

increase his criminal history category constitutes impermissible double counting in

violation of the Double Jeopardy Clause and the Due Process Clause. This

contention lacks merit. See United States v. Garcia-Cardenas, 555 F.3d 1049,

1050 (9th Cir. 2009) (per curiam).

       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 § 1326(b). See United States v.


AK/Research                                2                                     08-50137
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to

delete the reference to § 1326(b)).

       AFFIRMED; REMANDED to correct the judgment.




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