                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010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. 08-50511

               Plaintiff - Appellee,             D.C. No. 2:08-cr-01109-RGK

   v.
                                                 MEMORANDUM *
 ULISSES MONTES-GUTIERREZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                     R. Gary Klausner, District Judge, Presiding

                            Submitted February 16, 2010 **

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

        Ulisses Montes-Gutierrez appeals from the 46-month sentence imposed

following his guilty-plea conviction for being an illegal alien found in the United

States following deportation, in violation of 8 U.S.C. § 1326(a). We have

          *
             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).

AK/Research
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the

judgment.

       Montes-Gutierrez contends that the district court violated Fed. R. Crim. P.

32 by (1) denying him his right of allocution; and (2) failing to verify whether he

had read and reviewed the presentence investigation report with his attorney. The

record indicates that any error was harmless because the district court imposed the

sentence to which the parties stipulated in Montes-Gutierrez’s Fed. R. Crim. P.

11(c)(1)(C) plea agreement. See United States v. Ortega-Lopez, 988 F.2d 70, 72-

73 (1993); see also United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per

curiam).

       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). See United States v.

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

delete the reference to § 1326(b)).

       AFFIRMED; REMANDED to correct the judgment.




AK/Research                                2                                     08-50511
