United States v. Castaneda Maderos , 384 F. App'x 558 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 15 2010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. 09-50110
Plaintiff - Appellee, D.C. No. 2:08-cr-01465-RGK
v.
MEMORANDUM *
PATRICIA CASTANEDA MADEROS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Patricia Castaneda Maderos appeals from the 46-month sentence imposed
following her guilty-plea conviction for being an illegal alien found in the United
States following deportation, in violation of 8 U.S.C. § 1326(a). We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand to correct the
judgment.
Maderos contends that the district court miscalculated her Sentencing
Guidelines range because it counted prior sentences towards her criminal history
score pursuant to U.S.S.G. § 4A1.2, rather than as relevant conduct pursuant to
U.S.S.G. § 1B1.3. As Maderos acknowledges, this contention is foreclosed. See
United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009).
Maderos also contends that the district court erred by applying two criminal
history points pursuant to U.S.S.G. § 4A1.1(d) because she was not on probation
when she illegally reentered the United States. The district court did not err
because Maderos was sentenced on a new state conviction before she was found in
the United States for purposes of 8 U.S.C. § 1326(a). See id. at 1174-75.
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)(1). 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 with instructions to correct the judgment.
2 09-50110