                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2010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. 09-50016

               Plaintiff - Appellee,             D.C. No. 2:08-cr-01244-DSF

   v.
                                                 MEMORANDUM *
 JORGE AGUILAR-HERNANDEZ,

               Defendant - Appellant.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Jorge Aguilar-Hernandez appeals from the 37-month sentence imposed

following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.




          *
             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).

AH/Research
§ 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate

Aguilar-Hernandez’s sentence and remand for resentencing.

       Aguilar-Hernandez contends that the district court erred by assigning him

two criminal history points, pursuant to U.S.S.G. § 4A1.1(d), because there was

insufficient evidence that he was on parole at the time he committed the instant

offense. We cannot resolve the issue on this record.

       Accordingly, we vacate Aguilar-Hernandez’s sentence and remand to the

district court for further consideration.

       VACATED and REMANDED.




AH/Research                                                                 09-50016
