                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 04 2010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. 09-30147

               Plaintiff - Appellee,             D.C. No. 3:07-CR-00448-ALH

   v.
                                                 MEMORANDUM *
 JOSE SERAFIN RAMIREZ-DE LA
 CRUZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Oregon
                     Ancer L. Haggerty, District Judge, Presiding

                            Submitted December 15, 2009 **


Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Jose Serafin Ramirez-De La Cruz appeals from the 57-month sentence

imposed following his guilty-plea conviction for illegal reentry, in violation of

          *
             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).

SZ/Research
8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm,

but remand to correct the judgment.

         Ramirez-De La Cruz contends that his sentence is unreasonable because: (1)

it is based on a 16-level enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1)(A),

which is an inherently flawed Guideline; (2) application of the 16-level

enhancement resulted in a Guidelines’ range that was greater than necessary to

achieve the purposes of sentencing; (3) the district court failed to consider the 18

U.S.C. § 3553(a) sentencing factors; and (4) the district court failed to consider his

argument regarding the 16-level increase and his argument in favor of a departure

based on assimilation. The record indicates that the district court did not

procedurally err and that Ramirez-De La Cruz’s sentence is substantively

reasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en

banc); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054-58 (9th Cir.

2009).

         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)(2). See United States

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

delete the reference to § 1326(b)).


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       AFFIRMED; REMANDED to correct the judgment.




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