United States of America v. Elias Gomez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELIAS GOMEZ,
Defendant - Appellant.
No. 08-50210
D.C. No. 3:07-cr-01369-RTB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Elias Gomez appeals from the 70-month sentence imposed following his
jury-trial conviction for being a deported alien found in the United States, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm, but remand to correct the judgment.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-50210 2
Gomez contends that the district court erred by determining that his prior
conviction for assault with a deadly weapon on a peace officer, in violation of
California Penal Code § 245(c), constituted a crime of violence under U.S.S.G.
§ 2L1.2, because it does not contain the requisite intent. This contention is
foreclosed. See United States v. Grajeda, 581 F.3d 1186, 1196-97 (9th Cir. 2009).
Gomez also contends that the district court erred when it imposed a sentence
in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He contends
that the avoidance of constitutional doubt doctrine limits the holding of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Almendarez-
Torres has been overruled. These contentions are foreclosed. See United States v.
Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007) (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). 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)). We also instruct the district court to
correct the judgment so that it reflects the fact that Gomez was found guilty on
Count One of the indictment after a plea of not guilty.
AFFIRMED; REMANDED to correct judgment.

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