                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 29 2010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. 09-10425

               Plaintiff - Appellee,             D.C. No. 5:08-cr-00512-JF

  v.
                                                 MEMORANDUM *
OMAR CARBALLO-DELGADO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                          Submitted September 13, 2010**

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Omar Carballo-Delgado appeals his jury-trial conviction for illegal re-entry

following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.




          *
             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).
      Carballo-Delgado contends that we must vacate his conviction because the

penalty sheet accompanying his superseding indictment misstated the applicable

statutory maximum, and the district court did not advise Carballo-Delgado of the

correct statutory maximum when Carballo-Delgado was re-arraigned on this

indictment.

      Even assuming, without deciding, that error occurred, Carballo-Delgado

cannot establish that substantial rights were affected. See United States v. Olano,

507 U.S. 725, 731-34 (1993) (describing plain error standard). The record does not

support Carballo-Delgado’s contention that, at the time he elected to proceed to

trial, he believed he faced a statutory maximum of ten years rather then twenty

years. Both the original information to which Carballo-Delgado pled not guilty

and the pre-plea investigative report requested and considered by the parties prior

to Carballo-Delgado’s re-arraignment included the correct statutory maximum.

Carballo-Delgado therefore fails to establish “a reasonable probability that, but for

[the error claimed], the result of the proceeding would have been different.”

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (citation omitted).

      AFFIRMED.




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