                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 05 2011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. 09-50435

               Plaintiff - Appellee,             D.C. No. 8:09-cr-00054-CJC

  v.
                                                 MEMORANDUM *
JOSE ROCHA-ENCARNACION, a.k.a.
Esteban Rocha-Encarnacion,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Jose Rocha-Encarnacion appeals from his guilty-plea conviction and 51-

month sentence for being an illegal alien found in the United States, in violation of

8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Rocha-


          *
             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).
Encarnacion’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

with 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)(2). See United States

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

delete the reference to § 1326(b)).

      Counsel’s motion to withdraw is GRANTED, the district court’s judgment

is AFFIRMED, and the case is REMANDED with instructions to correct the

judgment.




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