                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 22 2010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. 08-50090

              Plaintiff - Appellee,              D.C. No. 5:07-cr-00130-VAP-1

  v.
                                                 MEMORANDUM *
JOSE REFUGIO RAMIREZ LOPEZ, aka
Jose Refugio Lopez, aka Refugio Ramirez
Lopez,

              Defendant - Appellant.



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

                             Submitted July 13, 2010 **
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior District
Judge.***



        *
             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).
        ***
              The Honorable Jack J. Camp, Senior United States District Judge for
the District of Northern Georgia, sitting by designation.
      Jose Refugio Ramirez-Lopez appeals the sentence imposed for his illegal re-

entry into the United States following deportation, in violation of 8 U.S.C.

§ 1326(a). He argues that the district court erred in calculating his guidelines range

under the Sentencing Guidelines, and in stating on its judgment form that he was

convicted of an offense under 8 U.S.C. § 1326(b)(2). We affirm his sentence and

remand for correction of the judgment.

      Ramirez-Lopez argues first that the district court erred in relying on the

Modified Presentence Report to find that he re-entered the United States in October

2005, which resulted in the court adding one criminal history point pursuant to

U.S.S.G. § 4A1.1(e). He points out that the information charged him with being

found in the United States on or about July 24, 2007, and did not mention any date

in October 2005. He also notes that the plea agreement references only the July

24, 2007 date when Ramirez-Lopez was found in California, not his re-entry date.

He does not, however, contest the fact that he re-entered in October 2005.

      “We review the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Sentencing Guidelines to the facts of

this case for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009)

(quotation marks and citation omitted). As Ramirez-Lopez did not object to this


                                            2
alleged error in the district court, however, we review for plain error. See United

States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008).

      The district court did not err in relying on the MPSR to conclude that

Ramirez-Lopez re-entered the United States unlawfully in October 2005. This case

is nearly identical to United States v. Reyes-Pacheco, 248 F.3d 942 (9th Cir. 2001).

Reyes-Pacheco was charged under § 1326(a) just like Ramirez-Lopez was, and

specifically “with being an alien ‘found in the United States’” following

deportation. Reyes-Pacheco, 248 F.3d at 944. In both defendants’ cases, the PSR

applied U.S.S.G. § 4A1.1 in the same manner to add criminal history points due to

a re-entry that the PSR determined had occurred within two years after the

defendant’s release from prison. Id. at 944. There, as here, the defendant did not

object to the facts in the PSR or that his re-entry date could serve as the date of his

offense. Id. at 945. Reyes-Pacheco argued on appeal that it was incorrect to

sentence him for “entering” the country in 1996 when he was charged with and

pled guilty to being “found in” the United States in 2000. Id. We held, however,

that the PSR’s undisputed finding, adopted by the district court, of a re-entry

within two years after release from prison was sufficient to support the additional

criminal history point. Id. Here, as in Reyes-Pacheco, the district court did not err

in its calculation of the criminal history category.


                                           3
      Ramirez-Lopez also argues that the rule of lenity should help reduce his

criminal history score, but the application of the penal statutes and Sentencing

Guidelines involved no ambiguities. See United States v. Fuentes-Barahona, 111

F.3d 651, 653 (9th Cir. 1997).

      Ramirez-Lopez’s final argument is that the judgment form incorrectly states

that he was convicted of the offenses of “8 U.S.C. § 1326(a) and (b)(2).” We

agree. Eight U.S.C. § 1326(b)(2) is merely a penalty provision and does not

constitute a separate crime. United States v. Rivera-Sanchez, 222 F.3d 1057, 1061

(9th Cir. 2000). In these circumstances, we “direct the district court to enter a

corrected judgment striking the reference to § 1326(b)(2) so that the judgment will

unambiguously reflect that the defendant was convicted of only one punishable

offense pursuant to § 1326(a).” Id. at 1062.

      We thus affirm the judgment of conviction under 8 U.S.C. § 1326(a) and

remand with instructions to the district court to enter a corrected judgment of

conviction which does not refer to § 1326(b)(2).

      AFFIRMED and REMANDED.




                                           4
