United States v. Jose Crus-Hernandes , 412 F. App'x 33 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 24 2011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. 10-30217
Plaintiff - Appellee, D.C. No. 2:09-cr-00265-BLW
v.
MEMORANDUM *
JOSE LUIS CRUS-HERNANDES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
Jose Luis Crus-Hernandes appeals from the 11-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
deportation, in violation of 8 U.S.C. §1326. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm, but remand to correct the judgment.
*
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).
Crus-Hernandes contends that his within-Guidelines sentence is
substantively unreasonable because circumstances in his life had changed, he
presented little danger, and he would have been sufficiently deterred by a lesser
sentence. In light of the totality of the circumstances, including prior deportations
and convictions, the sentence is substantively reasonable. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
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)(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.
2 10-30217