                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 08 2011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. 09-50437

               Plaintiff - Appellee,              D.C. No. 5:09-cr-00069-VAP

  v.
                                                  MEMORANDUM *
ELVIS AYON-PLACENCIA,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                            Submitted Februry 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Elvis Ayon-Placencia appeals from his guilty-plea conviction and 51-month

sentence for illegal reentry by an alien following deportation, in violation of 8

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

Placencia’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.

      Ayon-Placencia waived his right to appeal his conviction and sentence with

the exception of the court’s calculation of his criminal history category. Our

independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81

(1988), indicates that the appeal waiver is operative. Accordingly, we dismiss the

appeal in part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000).

      With regard to the court’s calculation of the criminal history category, our

independent review of the record discloses no arguable grounds for relief on direct

appeal, and we affirm.

      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)).

      Counsel’s motion to withdraw is GRANTED.

      AFFIRMED in part; DISMISSED in part; REMANDED with instructions

to correct the judgment.


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