                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 22 2013

                                                                         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. 12-30093

               Plaintiff - Appellee,              D.C. No. 2:11-cr-02097-FVS

  v.
                                                  MEMORANDUM *
ALBERTO PEREZ-NAVA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of Washington
                    Fred L. Van Sickle, District Judge, Presiding

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Alberto Perez-Nava appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

being an alien in the United States after deportation, in violation of 8 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).
§ 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to

correct the judgment.

      Perez-Nava contends that his sentence is substantively unreasonable in light

of his family ties and responsibilities, and because the advisory Sentencing

Guidelines range overstated his criminal history. The district court did not abuse

its discretion in imposing Perez-Nava’s sentence. See Gall v. United States, 552

U.S. 38, 51 (2007). The record reflects that the district court varied downward to

reflect its belief that Perez-Nava’s criminal history was overstated. In light of the

totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the

below-Guidelines sentence is substantively reasonable. See id.

      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 section 1326(b). 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)).

      AFFIRMED; REMANDED to correct the judgment.




                                           2                                     12-30093
