United States of America v. Alberto Perez-Nava

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERTO PEREZ-NAVA,
Defendant - Appellant.
No. 12-30093
D.C. No. 2:11-cr-02097-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted March 12, 2013**
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Alberto Perez-Nava appeals from the district court’s judgment and
challenges the 41-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.
FILED
MAR 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

12-30093 2
§ 1326. We have jurisdiction under 28 U.S.C. § 1291. We affirm, but remand to
correct the judgment.
Perez-Nava contends that his sentence is substantively unreasonable in light
of his family ties and responsibilities, and because the advisory Sentencing
Guidelines range overstated his criminal history. The district court did not abuse
its discretion in imposing Perez-Nava’s sentence. See Gall v. United States, 552
U.S. 38, 51 (2007). The record reflects that the district court varied downward to
reflect its belief that Perez-Nava’s criminal history was overstated. In light of the
totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the
below-Guidelines sentence is substantively reasonable. See id.
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)).
AFFIRMED; REMANDED to correct the judgment.

-- 2 of 2 --