                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 18 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50361

               Plaintiff - Appellee,             D.C. No. 8:12-cr-00255-DOC

  v.
                                                 MEMORANDUM*
JESUS GARCIA-COBIAN, a.k.a. Jesus
Corbin-Garcia, a.k.a. Jesus Garcia-
Corbian,

               Defendant - Appellant.


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

                            Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Jesus Garcia-Cobian appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

being an illegal alien found in the United States following deportation, in violation

          *
             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).
of 8 U.S.C. § 1326. We dismiss, but remand to correct the judgment.

      Garcia-Cobian contends that the district court imposed a substantively

unreasonable sentence. The government contends that this appeal should be

dismissed based on the appeal waiver in the parties’ plea agreement. We review de

novo whether an appellant has waived his right to appeal. See United States v.

Joyce, 357 F.3d 921, 922 (9th Cir. 2004).

      As is relevant here, Garcia-Cobian waived the right to appeal “the

procedures and calculations used to determine and impose any portion of the

sentence,” and “the term of imprisonment imposed by the Court.” Garcia-Cobian

contends that the waiver is unenforceable because its language does not encompass

his right to appeal the district court’s denial of a variance. We disagree. Whether

framed as a challenge to the district court’s denial of a variance or to the length of

the sentence imposed, Garcia-Cobian’s challenge to the substantive reasonableness

of his sentence is barred by the language of the appeal waiver.

      Garcia-Cobian next contends the waiver is unenforceable because the district

court advised him at sentencing that he had a right to appeal. The record belies this

assertion. See United States v. Arias-Espinosa, 704 F.3d 616, 619-20 (9th Cir.

2012).

      In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062


                                            2                                    13-50361
(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). 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)(2)).

      DISMISSED; REMANDED to correct the judgment.




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