United States v. Serratos-Marentes

221 F. App'x 557

Opinion

MEMORANDUM

**

Jose Antonio Serratos-Marentes appeals from the 18-month sentence imposed following his guilty plea to illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.

Serratos-Marentes contends that, in light of the Supreme Court’s recent decision in Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 633, 166 L.Ed.2d 462 (2006), the district court improperly imposed an eight-level increase under U.S.S.G. § 2L1.2(b)(l)(C) for his prior state felony drug possession conviction under California Health & Safety Code § 11350(a), because his crime was only a misdemeanor under the federal Controlled Substances Act. The government agrees that this case should be remanded for re-sentencing in light of Lopez. We vacate the sentence and remand for re-sentencing.

In accordance with United States v. Riveroir-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we additionally instruct the district court on remand to delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b)(1). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).

The mandate shall issue forthwith.

VACATED and REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.