United States v. Rodolfo Perez

377 F. App'x 637

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2010
• Docket: 09-50067
• Status: Unpublished

Opinion

MEMORANDUM **

Rodolfo Rivas Perez appeals from the 30-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. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.

Rivas Perez contends that the district court erred when it applied a 16-level enhancement pursuant to U.S.S.G. § 2L1.2 because his prior conviction for lewd acts with a child under 14 years of age, in violation of California Penal Code § 288(a), does not qualify as a crime of violence. This contention is foreclosed by United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir.2009).

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)(2). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).

Rivas Perez’s petition for initial hearing en banc is denied.

AFFIRMED; REMANDED to correct judgment.

** This disposition is not appropriate for publication and is not precedent except as pi'ovid-ed by 9th Cir. R. 36-3.