United States v. Nicanor Zarate-Zenaido ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
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. 12-30144
Plaintiff - Appellee, D.C. No. 1:11-cr-00215-BLW
v.
MEMORANDUM *
NICANOR ZARATE-ZENAIDO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
David O. Carter, District Judge, Presiding **
Submitted May 14, 2013 ***
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Nicanor Zarate-Zenaido appeals from the district court’s judgment and
challenges the 30-month sentence imposed following his guilty-plea conviction for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David O. Carter, United States District Judge for the
Central District of California, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
illegal reentry, 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.
Zarate-Zenaido contends that his sentence is substantively unreasonable
under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), in light of
the staleness of his prior conviction and lack of intervening criminal conduct. The
district court did not abuse its discretion in imposing Zarate-Zenaido’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The record reflects that the
district court varied downward to reflect its belief that Zarate-Zenaido’s criminal
history was overstated. In light of the totality of the circumstances and the 18
U.S.C. § 3553(a) sentencing factors, the below-Guidelines sentence is
substantively reasonable. See id.
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 Cir. 2000) (remanding
sua sponte to delete the reference to section 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
2 12-30144