United States v. Vargas-Castaneda

MEMORANDUM ** Jose Liberado Vargas-Castañeda appeals from the district court’s denial of his motion to dismiss the indictment charging him with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm, but remand to correct the judgment. Vargas-Castaneda’s motion to file his untimely reply brief is granted. The Clerk shall file the reply brief received on April 9, 2008. Vargas-Castaneda contends that his underlying deportation proceeding was invalid because the immigration judge failed to advise him that he was eligible to apply for waiver of deportation, pursuant to 8 U.S.C. § 1182 (h). We conclude that Vargas-Castaneda was not prejudiced by any defect in his deportation proceeding. Vargas-Castaneda has not shown a plausible ground for relief from deportation because the evidence of extreme hardship to his United States citizen children is insufficient. See United States v. Muro-Inclan, 249 F.3d 1180, 1185-86 (9th Cir.2001). We remand to the district court with instructions to correct the reference in the judgment to “8 U.S.C. § 1326(a) and (b).” See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)). AFFIRMED; REMANDED to correct judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.