                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 03 2011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. 10-50319

               Plaintiff - Appellee,             D.C. No. 2:09-cr-00595-AG

  v.
                                                 MEMORANDUM *
JOSE ANGEL GALAVIZ, a.k.a. Jose
Galaviz,

               Defendant - Appellant.



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

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Jose Angel Galaviz appeals from his guilty-plea conviction and 37-month

sentence for being an illegal alien found in the United States following deportation,

in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738


          *
             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).
(1967), Galaviz’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.

      Galaviz waived his right to appeal his sentence with the exception of the

court’s calculation of his criminal history category. Our independent review of the

record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81 (1988), discloses no

arguable grounds for relief as to the defendant’s conviction and indicates that the

appeal waiver is operative. Accordingly, we dismiss the appeal of the sentence in

part. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). With

regard to the court’s calculation of the criminal history category, our independent

review of the record discloses no arguable grounds for relief on direct appeal, and

we affirm.

      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                                     10-50319
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.

      AFFIRMED in part; DISMISSED in part; REMANDED to correct the

judgment.




                                         3                                 10-50319
