USA v. Alvaro Zepeda-Arce, No. 09-50467 (9th Cir. 2010)

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FILED OCT 06 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50467 D.C. No. 5:09-cr-00086-VAP v. MEMORANDUM * ALVARO ZEPEDA-ARCE, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, N.R. SMITH, Circuit Judges. Alvaro Zepeda-Arce appeals from his guilty-plea conviction and 37-month sentence for illegal reentry by an alien following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), ZepedaArce s counsel has filed a brief stating there are no grounds for relief, along with a * 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). motion to withdraw as counsel of record. We have provided the appellant with 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 on direct appeal. 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 district court's judgment is AFFIRMED, and the case is REMANDED with instructions to correct the judgment. 2 09-50467

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