                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2013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. 12-30254

               Plaintiff - Appellee,             D.C. No. 2:12-cr-00121-JLR

  v.
                                                 MEMORANDUM *
SAUL SOTO-MELCHOR,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       Saul Soto-Melchor appeals from the district court’s judgment and challenges

the 40-month sentence imposed following his guilty-plea conviction for illegal

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

under 28 U.S.C. § 1291, and 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).
      Soto-Melchor first contends that the district court procedurally erred by

failing to consider his arguments regarding unwarranted sentencing disparities and

other mitigating factors, and by failing to explain why it rejected those arguments.

We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010), and find none. The district court listened to and addressed

Soto-Melchor’s arguments, and adequately explained the sentence imposed.

      Soto-Melchor next contends that his sentence is substantively unreasonable.

The district court did not abuse its discretion in imposing Soto-Melchor’s sentence.

See Gall v. United States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence

is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors

and the totality of the circumstances, including Soto-Melchor’s history of

immigration violations and the circumstances of his arrest. 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)(2). 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)).

      AFFIRMED; REMANDED to correct the judgment.




                                           2                                     12-30254
