United States v. Noe Enriquez , 368 F. App'x 815 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 02 2010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. 08-50137
Plaintiff - Appellee, D.C. No. 3:07-cr-02436-BTM
v.
MEMORANDUM *
NOE ANTONIO ENRIQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Noe Antonio Enriquez appeals from the 57-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C.
*
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).
AK/Research
§ 1291. We affirm, but remand to correct the judgment.
Enriquez contends that the district court erred at sentencing by: (1)
presuming the Guidelines range to be reasonable; and (2) placing an undue
emphasis on the Guidelines. He also contends that his sentence is unreasonable in
light of the factors set forth in 18 U.S.C. § 3553(a), and due to the harsh nature of
the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). The record reflects
that the district court did not procedurally err, and that the sentence imposed is
substantively reasonable under the totality of the circumstances. See Gall v. United
States, 552 U.S. 38, 49-50 (2007); see also United States v. Carty, 520 F.3d 984,
992-93 (9th Cir. 2008) (en banc).
Enriquez also contends that the use of his prior drug and carjacking
convictions to both enhance his sentence under U.S.S.G. § 2L1.2(b)(1)(A) and
increase his criminal history category constitutes impermissible double counting in
violation of the Double Jeopardy Clause and the Due Process Clause. This
contention lacks merit. See United States v. Garcia-Cardenas, 555 F.3d 1049,
1050 (9th Cir. 2009) (per curiam).
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). See United States v.
AK/Research 2 08-50137
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.
AK/Research 3 08-50137