                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 04 2010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. 09-50278

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00910-GAF-1

  v.
                                                 MEMORANDUM *
DAVID AVILES-PADILLA,

               Defendant - Appellant.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       David Aviles-Padilla appeals from his guilty-plea conviction and 51-month

sentence imposed for being an illegal alien found in the United States following

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

28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

          *
             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), Aviles-Padilla’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 the appellant 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 on direct appeal.

      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)).

      Accordingly, counsel’s motion to withdraw is GRANTED, all pending

motions are DENIED, the district court’s judgment is AFFIRMED, and the case

is REMANDED.




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