United States v. Enrique Huerta , 420 F. App'x 679 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 09 2011
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. 10-50182
Plaintiff - Appellee, D.C. No. 2:09-cr-00954-SVW
v.
MEMORANDUM *
ENRIQUE GONZALEZ HUERTA, a.k.a.
Enrique Sierra Gonzalez, a.k.a. Gustavo
Gonzalez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Enrique Gonzalez-Huerta appeals from the 72-month sentence imposed
following his conviction for re-entry after deportation, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to
*
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).
correct the judgment.
Gonzalez-Huerta contends that the district court procedurally erred by
failing adequately to discuss the 18 U.S.C. 3553(a) factors and to explain the
deviation from the Guidelines range. We disagree. See United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc).
Gonzalez-Huerta also contends that his sentence is substantively
unreasonable because the 18 U.S.C. § 3553(a) factors were not individually applied
to his case, and because it is unduly harsh and creates an unwarranted disparity
with similarly situated defendants. In light of the totality of the circumstances and
the 18 U.S.C. § 3553(a) factors, the sentence is substantively reasonable. See Gall
v. United States, 552 U.S. 38, 51 (2007).
Gonzalez-Huerta additionally contends that the district court failed to
provide notice under Federal Rule of Criminal Procedure 32(h). The record
reflects that the district court varied from the Guidelines under 18 U.S.C.
§ 3553(a), and it had no obligation to provide Gonzalez-Huerta notice. See
Irizarry v. United States, 553 U.S. 708, 714 (2008) (limiting the Rule 32(h) notice
requirement to departures under 18 U.S.C. § 3553(b)).
Contrary to Gonzalez-Huerta’s contention, he is not entitled to judicial
estoppel.
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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 reference to 8 U.S.C. § 1326(b)(1). 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 judgment.
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