                                                                             FILED
                             NOT FOR PUBLICATION                              APR 22 2010

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-50067

               Plaintiff - Appellee,              D.C. No. 2:08-cr-01193-GW

  v.
                                                  MEMORANDUM *
RODOLFO RIVAS PEREZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Central District of California
                      George H. Wu, District Judge, Presiding

                               Submitted April 5, 2010 **


Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       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



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.




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