USA v. Omar Carballo-Delgado, No. 09-10425 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 29 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-10425 D.C. No. 5:08-cr-00512-JF v. MEMORANDUM * OMAR CARBALLO-DELGADO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding Submitted September 13, 2010** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Omar Carballo-Delgado appeals his jury-trial conviction for illegal re-entry following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Carballo-Delgado contends that we must vacate his conviction because the penalty sheet accompanying his superseding indictment misstated the applicable statutory maximum, and the district court did not advise Carballo-Delgado of the correct statutory maximum when Carballo-Delgado was re-arraigned on this indictment. Even assuming, without deciding, that error occurred, Carballo-Delgado cannot establish that substantial rights were affected. See United States v. Olano, 507 U.S. 725, 731-34 (1993) (describing plain error standard). The record does not support Carballo-Delgado s contention that, at the time he elected to proceed to trial, he believed he faced a statutory maximum of ten years rather then twenty years. Both the original information to which Carballo-Delgado pled not guilty and the pre-plea investigative report requested and considered by the parties prior to Carballo-Delgado s re-arraignment included the correct statutory maximum. Carballo-Delgado therefore fails to establish a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different. United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (citation omitted). AFFIRMED. 2 09-10425
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