                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 03 2011

                                                                        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. 09-10345

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00190-MCE

  v.
                                                 MEMORANDUM *
MANUEL CRUZ-OCHOA,

               Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Morrison C. England, Jr., District Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Manuel Cruz-Ochoa appeals from his guilty-plea conviction and 51-month

sentence for being a deported alien found in the United States, in violation of 8

U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967),

Cruz-Ochoa’s counsel has filed a brief stating there are no grounds for relief, along

          *
             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).
with a motion to withdraw as counsel of record. We have provided the appellant

with the opportunity to file a pro se supplemental brief. No pro se supplemental

brief or answering brief has been filed.

      Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.

75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal. We

dismiss in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d

1179, 1182 (9th Cir. 2000).

      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 reference to section 1326(b). See United States v.

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

delete the reference to section 1326(b)).

      Counsel’s motion to withdraw is GRANTED.

      DISMISSED; REMANDED to correct the judgment.




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