
    UNITED STATES of America, Plaintiff-Appellee, v. Gerardo CARRILLO-ZATARAIN, Defendant-Appellant.
    No. 99-10624.
    D.C. No. CR-99-00039-HDM.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 14, 2001.
    
    Decided May 25, 2001.
    
      Before PREGERSON, FERNANDEZ, and WARDLAW, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Federal prisoner Gerardo Carrillo-Zatarain appeals the forty-six month sentence imposed following his guilty plea to one count of being found in the United States after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.

Carrillo-Zatarain contends the district court erred by failing to grant his requests for downward departures for prejudicial delay, sentencing disparities among the judicial districts, and cultural assimilation. For each request for a downward departure, the district court determined, under Carrillo-Zatarain’s circumstances, such departures were not warranted. The district court’s discretionary decision not to depart downward from the sentencing guidelines is not subject to appellate review. See United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998); see also United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991) (per curiam) (holding district court’s silence regarding its authority to depart does not indicate it believed it lacked the ability to depart).

Carrillo-Zatarain was convicted of violating § 1326(a) and (b)(1). We sua sponte remand to the district court with instructions to enter a corrected judgment that does not refer to 8 U.S.C. § 1326(b)(1). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (citing United States v. Rivera-Sanchez, 222 F.3d 1057, 1061-64 (9th Cir.2000)).

DISMISSED in part; and REMANDED in part. 
      
       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.
     