United States v. Cesar Dorado-Avila , 407 F. App'x 240 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 05 2011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. 09-50535
Plaintiff - Appellee, D.C. No. 5:07-cr-00118-SGL
v.
MEMORANDUM *
CESAR DORADO-AVILA, a.k.a. Cesar
Avila,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Cesar Dorado-Avila appeals from the 60-month sentence imposed following
his guilty-plea conviction for being an illegal alien found in the United States
following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Dorado-Avila contends the district court plainly erred by imposing
conditions of supervised release concerning drugs and alcohol. It was not plain
error for the district court to impose a mandatory condition of supervised release
requiring Dorado-Avila to refrain from unlawful use of a controlled substance and
submit to drug testing, see 18 U.S.C. § 3563(a)(5); United States v. Carter, 159
F.3d 397, 399-400 (9th Cir. 1998), or to impose a standard discretionary condition
requiring Dorado-Avila to refrain from excessive use of alcohol or the use,
possession, distribution or administration of controlled substances without a
prescription, see 18 U.S.C. § 3563(b)(7). Any error regarding these conditions
“did not seriously affect the fairness, integrity, or public reputation of the judicial
proceedings.” See United States v. Maciel-Vasquez, 458 F.3d 994, 996 (9th Cir.
2006).
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 section 1326(b). 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.
2 09-50535