UNITED STATES of America, Plaintiff - Appellee, v. Jose Antonio GARCIA-GRACIAN, Defendant - Appellant, 329 F. App'x 145

MEMORANDUM Jose Antonio Garcia-Gracian appeals from the 63-month sentence imposed following his guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm but remand to correct the judgment. Garcia-Gracian contends that the district court erred when it failed to grant him a downward departure, pursuant to U.S.S.G. § 5K2.0, based on pre-indictment delay. He also contends that his sentence is unreasonable. We review both contentions for reasonableness. See United States v.

Dallman, 533 F.3d 755, 760-61 (9th Cir.2008); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). The district court did not procedurally err and the sentence is not substantively unreasonable. See Carty, 520 F.3d at 991-93. 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). AFFIRMED; REMANDED to correct the judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir.

R. 36-3.