United States v. Orosco-Cortez

U.S. Court of Appeals for the Ninth Circuit
United States v. Orosco-Cortez, 264 F. App'x 589 (9th Cir. 2008)

United States v. Orosco-Cortez

Opinion of the Court

MEMORANDUM **

Juan Manuel Orosco-Cortez appeals from the 95-month sentence imposed following his guilty-plea conviction for illegal reentry following 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.

Orosco-Cortez contends that the district court erred by failing to recognize that it had authority to depart downwards under U.S.S.G. § 5K2.11, or based upon the totality of the circumstances. However, we have stated that the district court need not “calculate what departure[s] would be allowable under the old mandatory [Guidelines] scheme.” See United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). The record reflects that the district court properly considered Orosco-Cortez’s departure-related contentions within the context of its analysis of the factors set forth in 18 U.S.C. § 3553(a). See id. at 986-87.

We remand to the district court with instructions to correct the reference in the judgment to “8 U.S.C. § 1326(a), (b)(2).” See United States v. Herrero-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

AFFIRMED; REMANDED to correct judgment.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Reference

Full Case Name
UNITED STATES of America, Plaintiff—Appellee v. Juan Manuel OROSCO-CORTEZ, Defendant—Appellant
Status
Published