FILED

NOT FOR PUBLICATION JAN 07 2010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. 09-50027

Plaintiff - Appellee, D.C. No. 3:07-CR-03475-IEG

v.

MEMORANDUM *

CARLOS SOTO-LOPEZ, AKA Carlos Soto, AKA Manuel Urias-Castro, AKA Carlos Mendoza-Camacho,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Chief District Judge, Presiding

Submitted December 15, 2009 **

Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.

Carlos Soto-Lopez appeals from the 77-month sentence imposed following

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

* 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).

EG/Research violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm, but remand to correct the judgment. We grant the parties’

requests to take judicial notice of certain documents outside the district court

record.

Soto-Lopez contends that the district court procedurally erred by failing to

address adequately his argument that he was entitled to the 48-month sentence he

would have received had his attorney not advised him to reject the government’s

“fast-track” offer. Our review of the record indicates that the judge adequately

addressed this argument. See Rita v. United States, 551 U.S. 338, 359 (2007);

United States v. Carty, 520 F.3d 984, 995 (9th Cir. 2008) (en banc).

Soto-Lopez also contends that the district court abused its discretion in

imposing the 77-month sentence at the bottom of the Guidelines range rather than

the 48-month sentence he would have received had he accepted the government’s

offer. Considering the totality of the circumstances, the district court’s sentence

was not substantively unreasonable. See United States v. Vasquez-Landaver, 527

F.3d 798, 804-05 (9th Cir. 2008) (district court did not abuse its discretion in

rejecting defendant’s request for 48-month “fast-track” sentence offered by

government and rejected).

Finally, as Soto-Lopez concedes, his contention that the sentencing judge

EG/Research 2 09-50027 violated the Fifth and Sixth Amendments by increasing his sentence pursuant to an

aggravated felony finding is foreclosed. See Almendarez-Torres v. United States,

523 U.S. 224 (1998).

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 § 1326(b). See United States v.

Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to

delete the reference to § 1326(b)).

AFFIRMED; REMANDED to correct the judgment.

EG/Research 3 09-50027