UNITED STATES of America, Plaintiff-Appellee, v. Elias GOMEZ, Defendant-Appellant, 390 F. App'x 715

MEMORANDUM Elias Gomez appeals from the 70-month sentence imposed following his jury-trial conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment. Gomez contends that the district court erred by determining that his prior conviction for assault with a deadly weapon on a peace officer, in violation of California Penal Code § 245(c), constituted a crime of violence under U.S.S.G. § 2L1.2, because it does not contain the requisite intent. This contention is foreclosed.

See United States v. Grajeda, 581 F.3d 1186, 1196-97 (9th Cir.2009). Gomez also contends that the district court erred when it imposed a sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He contends that the avoidance of constitutional doubt doctrine limits the holding of Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and that Almendarez-Tofres has been overruled. These contentions are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (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). 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)). We also instruct the district court to correct the judgment so that it reflects the fact that Gomez was found guilty on Count One of the indictment after a plea of not guilty. AFFIRMED; REMANDED to correct judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.