                                                                              FILED
                             NOT FOR PUBLICATION                                 MAR 04 2010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. 07-50568

               Plaintiff - Appellee,              D.C. No. CR-07-00751-PSG-1

   v.
                                                  MEMORANDUM *
 FEDERICO FRANCO-VASQUEZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                         for the Central District of California
                     Philip S. Gutierrez, District Judge, Presiding

                            Submitted February 16, 2010 **


Before: FERNANDEZ, GOULD and M. SMITH, Circuit Judges.

        Federico Franco-Vasquez appeals the sentence imposed following his guilty

plea to being an illegal alien found in the United States after deportation in



         *
             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).

HL/Inventory
violation of 8 U.S.C. § 1326. Franco-Vasquez contends that the district court

should not have counted his 2007 conviction for driving under the influence as part

of his criminal history because the offense occurred during the commission of the

instant offense of illegal reentry after deportation. This argument is foreclosed by

United States v. Cruz-Gramajo, 570 F.3d 1162 (9th Cir. 2009).

       AFFIRMED.




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