United States v. Mendoza-Mendoza

MEMORANDUM ** Hessler Mendoza-Mendoza appeals from the 77-month sentence imposed following his conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 . We affirm and remand. Appellant contends his sentence is unreasonable because the sentencing judge “misapprehended” the amount of time he had previously served in prison for a prior state conviction. After reviewing the record, we conclude that the sentence is not unreasonable. See United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, - U.S. -, 126 S.Ct. 2314 , 164 L.Ed.2d 832 (2006). Appellant also contends that 8 U.S.C. § 1326 (b)(2) is unconstitutional. This contention is foreclosed by United States v. Weiland, 420 F.3d 1062 , 1079 n. 16 (9th Cir .2005). 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 8 U.S.C. § 1326 (b)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th *848 Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)). AFFIRMED; REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.