                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 07 2010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. 09-50329

               Plaintiff - Appellee,             D.C. No. 5:09-cr-00032-VAP

  v.

ALEJANDRO VANUELOS-FREGOSO,                      MEMORANDUM *
aka Francisco Javier Leon-Calderon,

               Defendant - Appellant.



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

                            Submitted August 23, 2010 **

Before:        LEAVY, HAWKINS, and THOMAS, Circuit Judges.

       Alejandro Vanuelos-Fregoso appeals from his guilty-plea conviction and 30-

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

8 U.S.C. § 1326.


          *
             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).
      Pursuant to Anders v. California, 386 U.S. 738 (1967), Vanuelos-Fregoso’s

counsel has filed a brief stating there are no grounds for relief, along with a motion

to withdraw as counsel of record. We have provided Vanuelos-Fregoso 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 as to Vanuelos-

Fregoso’s conviction. We dismiss the appeal of the sentence 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 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.

      The conviction is AFFIRMED, the appeal of the sentence is DISMISSED,

and the case is REMANDED with instructions to correct the judgment.




                                           2                                     09-50329
