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United States of America v. Jose Luis Crus-Hernandes

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


January 24, 2011

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
JOSE LUIS CRUS-HERNANDES, DEFENDANT - APPELLANT.

D.C. No. 2:09-cr-00265-BLW Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

FILED NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

MEMORANDUM*fn1

Submitted January 10,2011*fn2

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.

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.


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