United States v. Anibal Diaz-rodriguez

FILED

NOT FOR PUBLICATION APR 21 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-50391

Plaintiff - Appellee, D.C. No. 3:08-cr-01001-LAB

v.

MEMORANDUM *

ANIBAL DIAZ-RODRIGUEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

Anibal Diaz-Rodriguez appeals from the 40-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

* 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). States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to

U.S.C. § 1291. We affirm, but remand to correct the judgment.

Diaz-Rodriguez contends that the district court procedurally erred…