Contreras

MEMORANDUM **

Jose Luis Contreras appeals from the 70-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States following deportation, in 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.

Contreras contends that the district court violated Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve his objection to the Probation Office’s failure to include mitigating evidence regarding the reason he returned to the United States in the Presentence Report (“PSR”). Because the district court made clear that the Probation Office’s failure to include the mitigating evidence in the PSR would not affect its sentencing decision, the district court did not violate Rule 32. See United States v. Ingham, 486 F.3d 1068, 1077 (9th Cir.2007).

Contreras also contends that the district court erred when it applied the preponderance of the evidence standard to the mitigating evidence presented. The district court did not err in this regard. See United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.2006). Moreover, the district court did not clearly…