United States of America v. Ulisses Montes-Gutierrez

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).
AK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ULISSES MONTES-GUTIERREZ,
Defendant - Appellant.
No. 08-50511
D.C. No. 2:08-cr-01109-RGK
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Ulisses Montes-Gutierrez appeals from the 46-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(a). We have
FILED
MAR 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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AK/Research 08-50511 2
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the
judgment.
Montes-Gutierrez contends that the district court violated Fed. R. Crim. P.
32 by (1) denying him his right of allocution; and (2) failing to verify whether he
had read and reviewed the presentence investigation report with his attorney. The
record indicates that any error was harmless because the district court imposed the
sentence to which the parties stipulated in Montes-Gutierrez’s Fed. R. Crim. P.
11(c)(1)(C) plea agreement. See United States v. Ortega-Lopez, 988 F.2d 70, 72-
73 (1993); see also United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per
curiam).
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)).
AFFIRMED; REMANDED to correct the judgment.

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