                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 08 2011

                                                                        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. 10-10560

               Plaintiff - Appellee,             D.C. No. 4:10-cr-00066-SBA

  v.
                                                 MEMORANDUM *
MIGUEL MARTINEZ-ALEJANDREZ,
a.k.a. Miguel Martinez Alejandrez, a.k.a.
Miguel Martinez, a.k.a. Miguel A.
Martinez, a.k.a. Miguel Alejandrez
Martinez, a.k.a. Miguel Alejandro
Martinez,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                           Submitted November 8, 2011 **

Before:        O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.

       Miguel Martinez-Alejandrez appeals from his guilty-plea conviction and


          *
             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).
30-month sentence imposed for being a deported alien found in the United States,

in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We

dismiss in light of the valid appeal waiver, but we remand to the district court to

correct the judgment.

      Martinez-Alejandrez contends that his trial counsel provided ineffective

assistance by failing to pursue a statute of limitation defense or to contest the

16-level enhancement. He further contends that the appeal waiver in his plea

agreement does not bar these claims because the waiver was not knowingly and

voluntarily made.

      Although the appeal waiver allows Martinez-Alejandrez to raise an

ineffective assistance of counsel claim in a 28 U.S.C. § 2255 motion, it expressly

bars the instant appeal. See United States v. Nunez, 223 F.3d 956, 959 (9th Cir.

2000) (waiver of right to appeal conviction or sentence applies to ineffective

assistance of counsel claims, though such claims may be raised in a collateral

proceedings). Furthermore, the record reflects that Martinez-Alejandrez’s waiver

was knowingly and voluntarily made. To the extent Martinez-Alejandrez argues

that his waiver was not knowing and voluntary because of his counsel’s ineffective

assistance, we decline to consider that contention on direct appeal. See United

States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011).


                                           2                                        10-10560
      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 reference to section 1326(b). See United States v.

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

delete the reference to section 1326(b)).

      DISMISSED; REMANDED to correct judgment.




                                            3                                    10-10560
