U.S. Court of Appeals for the Ninth Circuit, 2006

United States v. Mendoza-Mendoza

United States v. Mendoza-Mendoza
U.S. Court of Appeals for the Ninth Circuit · Decided October 30, 2006 · Fletcher, Leavy, Rawlinson
203 F. App'x 847

United States v. Mendoza-Mendoza

Opinion of the Court

MEMORANDUM **

Hessler Mendoza-Mendoza appeals from the 77-month sentence imposed following his conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm and remand.

Appellant contends his sentence is unreasonable because the sentencing judge “misapprehended” the amount of time he had previously served in prison for a prior state conviction. After reviewing the record, we conclude that the sentence is not unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, - U.S. -, 126 S.Ct. 2314, 164 L.Ed.2d 832 (2006).

Appellant also contends that 8 U.S.C. § 1326(b)(2) is unconstitutional. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir . 2005).

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 *848Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

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