Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in a jury trial in the United States District Court for the District of Arizona, Roger G. Strand, J., of reentry after deportation. Defendant appealed. The Court of Appeals held that: (1) record was inadequate to entertain ineffective assistance of counsel claim, and (2) statutory subsection governing criminal penalties for reentry of certain removed aliens does not define a separate crime.
Affirmed and remanded with directions.
Page 821.
Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-99-00108-RGS.
Before BEEZER, O'SCANNLAIN and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Pedro Perez-Vega appeals his jury conviction and sentence for a single count of reentry after deportation in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Perez-Vega's counsel has filed a brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he finds no meritorious issues for review, and a motion to withdraw as counsel of record.
Defendant has filed a supplemental pro se brief, contending that he received ineffective assistance from his trial and appellate counsel. Because the record on appeal is inadequate, we decline to entertain Perez-Vega's ineffective assistance of counsel claim at this time. United States v. Rivera-Sanchez, 222 F.3d 1057, 1060 (9th Cir.2000) (generally, ineffective assistance of counsel claims "are inappropriate on direct appeal and should be raised, instead, in habeas corpus proceedings").
We note that, in addition to § 1326(a), the district court's judgment references 8 U.S.C. § 1326(b), which does not define a separate crime. Almendarez-Torres v. United States, 523 U.S. 224, 226, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir.1998). We therefore, AFFIRM the judgment, but REMAND with directions to correct the written judgment by striking the reference to § 1326(b) so that the judgment will unambiguously reflect that Perez-Vega was convicted of only one punishable offense pursuant to § 1326(a). See 28 U.S.C. § 2106; United States v. Rivera-Sanchez, 222 F.3d at 1063 (9th Cir.2000).
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no further issues for review.
Counsel's motion to withdraw as counsel of record is GRANTED.
AFFIRMED. REMANDED with instructions.