United States v. Hernandez-Garcia

No. 08-50040 | 9th Cir. | Jul 28, 2009

MEMORANDUM **

Agustín Hernandez-Garcia appeals from the 40-month sentence imposed following his guilty-plea conviction for attempted reentry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738" court="SCOTUS" date_filed="1967-05-08" href="https://app.midpage.ai/document/anders-v-california-107423?utm_source=webapp" opinion_id="107423">386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Hernandez-Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. He has provided a letter to the court. The government has filed an answering brief.

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75" court="SCOTUS" date_filed="1988-11-29" href="https://app.midpage.ai/document/penson-v-ohio-112157?utm_source=webapp" opinion_id="112157">488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for ' relief on direct appeal.

Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057" court="9th Cir." date_filed="2000-08-02" href="https://app.midpage.ai/document/united-states-v-pablo-rivera-sanchez-769927?utm_source=webapp" opinion_id="769927">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). See United States v. Herrera-Blanco, 232 F.3d 715" court="9th Cir." date_filed="2000-11-14" href="https://app.midpage.ai/document/united-states-v-juan-carlos-herrera-blanco-771149?utm_source=webapp" opinion_id="771149">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 9 th Cir. R. 36-3.