United States v. Aviles-Padilla

FILED
NOT FOR PUBLICATION JUN 04 2010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. 09-50278
Plaintiff - Appellee, D.C. No. 2:08-cr-00910-GAF-1
v.
MEMORANDUM *
DAVID AVILES-PADILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
David Aviles-Padilla appeals from his guilty-plea conviction and 51-month
sentence imposed for being an illegal alien found in the United States following
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).
Pursuant to Anders v. California, 386 U.S. 738 (1967), Aviles-Padilla’s
counsel has filed a brief stating there are no grounds for relief, along with a motion
to withdraw as counsel of record. We have provided the appellant the opportunity
to file a pro se supplemental brief. No pro se supplemental brief or answering brief
has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
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 § 1326(b). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
Accordingly, counsel’s motion to withdraw is GRANTED, all pending
motions are DENIED, the district court’s judgment is AFFIRMED, and the case
is REMANDED.
2 09-50278