United States v. Juan Osorio-Funez , 382 F. App'x 573 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 07 2010
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. 09-10297
Plaintiff - Appellee, D.C. No. 4:09-cr-00037-SBA
v.
MEMORANDUM *
JUAN ANGEL OSORIO-FUNEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Juan Angel Osorio-Funez appeals from the 70-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
*
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).
States, 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.
Osorio-Funez contends that the district court procedurally erred by failing to
consider the 18 U.S.C. § 3553(a) sentencing factors. The record indicates that the
district court considered Osorio-Funez’s arguments and the sentencing factors. See
Rita v. United States, 551 U.S. 338, 356-59 (2007); United States v. Carty, 520
F.3d 984, 991-92, 995 (9th Cir. 2008) (en banc).
Osorio-Funez also contends that his sentence is substantively unreasonable.
In light of the totality of the circumstances, the district court’s sentence at the low
end of the Guidelines is substantively reasonable. See Carty, 520 F.3d at 993.
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. § (a) and (b)” and
replace it with “8 U.S.C. § 1326(a).” See United States v. Herrera-Blanco, 232
F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to
§ 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
2 09-10297