USA v. Jose Rocha-Encarnacion, No. 09-50435 (9th Cir. 2011)

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FILED JAN 05 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50435 D.C. No. 8:09-cr-00054-CJC v. MEMORANDUM * JOSE ROCHA-ENCARNACION, a.k.a. Esteban Rocha-Encarnacion, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted December 14, 2010 ** Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges. Jose Rocha-Encarnacion appeals from his guilty-plea conviction and 51month sentence for being an illegal alien found in the United States, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738 (1967), Rocha- * 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). Encarnacion 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 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 09-50435

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