
    UNITED STATES of America, Plaintiff—Appellee, v. Apolinar GARCIA-MUNOZ, Defendant—Appellant.
    No. 08-50568.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 14, 2009.
    
    Filed Sept. 30, 2009.
    Rebecca Suzanne Kanter, Southern District of California, Christopher A. Ott, Esquire, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Erick L. Guzman, Esquire, Doug Keller, Federal Public Defenders, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
    Before: SILVERMAN, RAWLINSON, and CLIFTON, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Apolinar Garcia-Munoz appeals from the 54-month sentence imposed following his jury-trial conviction for being a deported alien found in the United States, 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.

Garcia-Munoz contends that the district court erred at sentencing by failing to properly apply the parsimony principle embodied in 18 U.S.C. § 3553(a). The record reflects that district court did not procedurally err, and that Garcia-Munoz’s sentence is not unreasonable. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also United States v. Nichols, 464 F.3d 1117, 1124-26 (9th Cir.2006).

As Garcia-Munoz concedes, his argument that United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.2008), should be overruled may not be considered by a three judge panel. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001).

Next, as Garcia-Munoz concedes, his contention that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be overruled is foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir.2007) (en banc).

Finally, we remand the case to the district court with instructions that it delete from the judgment the reference to 8 U.S.C. § 1326(b). See United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000); see also United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)(2)).

AFFIRMED; REMANDED to correct the judgment. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     