USA v. Jose Crus-Hernande, No. 10-30217 (9th Cir. 2011)

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FILED JAN 24 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-30217 D.C. No. 2:09-cr-00265-BLW v. MEMORANDUM * JOSE LUIS CRUS-HERNANDES, Defendant - Appellant. Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. Jose Luis Crus-Hernandes appeals from the 11-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. §1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to correct the judgment. * 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). Crus-Hernandes contends that his within-Guidelines sentence is substantively unreasonable because circumstances in his life had changed, he presented little danger, and he would have been sufficiently deterred by a lesser sentence. In light of the totality of the circumstances, including prior deportations and convictions, the sentence is substantively reasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). 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 section 1326(b)(1). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to section 1326(b)). AFFIRMED; REMANDED to correct judgment. 2 10-30217

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