USA v. Alejandro Vanuelos-Fregoso, No. 09-50329 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 07 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 09-50329 D.C. No. 5:09-cr-00032-VAP v. ALEJANDRO VANUELOS-FREGOSO, aka Francisco Javier Leon-Calderon, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Submitted August 23, 2010 ** Before: LEAVY, HAWKINS, and THOMAS, Circuit Judges. Alejandro Vanuelos-Fregoso appeals from his guilty-plea conviction and 30month sentence for illegal reentry by an alien following deportation, in violation of 8 U.S.C. § 1326. * 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). Pursuant to Anders v. California, 386 U.S. 738 (1967), Vanuelos-Fregoso s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Vanuelos-Fregoso the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81 (1988), discloses no arguable grounds for relief as to VanuelosFregoso s conviction. We dismiss the appeal of the sentence in light of the valid appeal waiver. See United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir. 2000). 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)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)). Counsel s motion to withdraw is GRANTED. The conviction is AFFIRMED, the appeal of the sentence is DISMISSED, and the case is REMANDED with instructions to correct the judgment. 2 09-50329

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