                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

                                                                        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. 12-10269

               Plaintiff - Appellee,             D.C. No. 4:11-cr-00884-PJH

  v.
                                                 MEMORANDUM *
JUAN RAMON PRADO LOPEZ,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                            Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Juan Ramon Prado Lopez appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

being a deported alien found in the United States, 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).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm but remand to the

district court to correct a clerical error in the judgment.

      Prado Lopez contends that U.S.S.G. § 2L1.2(b)(1)(A)’s 16-level sentencing

enhancement is flawed because it is not based on empirical evidence and because it

uses prior convictions in establishing an offense level. This contention fails

because this court has recognized that the enhancement reflects Congress’s intent

to increase penalties for aliens with prior convictions. See United States v.

Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001).

      Prado Lopez also contends that his sentence is substantively unreasonable in

light of his employment history and community support. The district court did not

abuse its discretion in imposing Lopez’s sentence. See Gall v. United States, 552

U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including

Lopez’s criminal history and prior deportations. See id.

      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 8 U.S.C. § 1326(b). See United




                                            2                                    12-10269
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte

to delete reference § 1326(b)).

      AFFIRMED; REMANDED to correct the judgment.




                                        3                                  12-10269
