                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 10 2010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. 09-10235

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00061-FCD

  v.
                                                 MEMORANDUM *
JOSE MARIA-JUAREZ,

               Defendant - Appellant.

                    Appeal from the United States District Court
                       for the Eastern District of California
                    Frank C. Damrell, District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Jose Maria-Juarez appeals from the 70-month sentence imposed following

his guilty-plea conviction for being a deported alien found in the United States, in




          *
             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).
violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We

affirm, but remand to correct the judgment.

         Maria-Juarez contends that the district court procedurally erred at sentencing

by (1) refusing to consider imposing a lower sentence in order to achieve parity

with fast-track defendants; (2) treating the Sentencing Guidelines as mandatory;

and (3) failing to adequately explain the sentence. The record indicates that the

district court did not procedurally err. See United States v. Carty, 520 F.3d 984,

994-96 (9th Cir. 2008) (en banc); see also United States v. Gonzalez-Zotelo, 556

F.3d 736, 739-41 (9th Cir. 2009).

         Maria-Juarez also contends that his sentence is substantively unreasonable in

light of his mitigating personal circumstances and the age of the prior conviction

that was the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

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

of the totality of the circumstances. See Gall v. United States, 552 U .S. 38, 51-52

(2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.

2009).

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

(9th Cir. 2000), we remand with instructions that the district court delete from the

judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v.


                                            2                                    09-10235
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding to delete the

reference to § 1326(b) because it is a sentence enhancement and not a separate

punishable offense).

      Maria-Juarez’s motion for judicial notice is denied.

      AFFIRMED; REMANDED to correct the judgment.




                                         3                                   09-10235
