United States of America v. Jose Maria-Juarez

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NOT FOR PUBLICATION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.
JOSE MARIA-JUAREZ,
Defendant - Appellant.
No. 09-10235
D.C. No. 2:08-cr-00061-FCD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Submitted May 25, 2010**
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Jose Maria-Juarez appeals from the 70-month sentence imposed following
his guilty-plea conviction for being a deported alien found in the United States, in
FILED
JUN 10 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We
affirm, but remand to correct the judgment.
Maria-Juarez contends that the district court procedurally erred at sentencing
by (1) refusing to consider imposing a lower sentence in order to achieve parity
with fast-track defendants; (2) treating the Sentencing Guidelines as mandatory;
and (3) failing to adequately explain the sentence. The record indicates that the
district court did not procedurally err. See United States v. Carty, 520 F.3d 984,
994-96 (9th Cir. 2008) (en banc); see also United States v. Gonzalez-Zotelo, 556
F.3d 736, 739-41 (9th Cir. 2009).
Maria-Juarez also contends that his sentence is substantively unreasonable in
light of his mitigating personal circumstances and the age of the prior conviction
that was the basis for a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
The record reflects that the 70-month sentence is substantively reasonable in light
of the totality of the circumstances. See Gall v. United States, 552 U .S. 38, 51-52
(2007); cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir.
2009).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand with instructions that the district court delete from the
judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v.

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Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding to delete the
reference to § 1326(b) because it is a sentence enhancement and not a separate
punishable offense).
Maria-Juarez’s motion for judicial notice is denied.
AFFIRMED; REMANDED to correct the judgment.

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