United States of America v. Cesar Dorado-Avila, a.k.a. Cesar Avila

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NOT FOR PUBLICATION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.
CESAR DORADO-AVILA, a.k.a. Cesar
Avila,
Defendant - Appellant.
No. 09-50535
D.C. No. 5:07-cr-00118-SGL
MEMORANDUM*
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
FILED
JAN 05 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-50535 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.

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