                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 25 2011

                                                                       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. 09-50201

              Plaintiff-Appellee,                     D.C. No. 2:08-CR-1400-DDP

      v.

 ABEL YUDICO LAZCANO, etc.
                                                      MEMORANDUM *
              Defendant-Appellant.




                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, presiding

                      Argued and Submitted, August 2, 2010
                              Pasadena, California

Before:      KOZINSKI, Chief Judge, REINHARDT, Circuit Judge, and
             WHYTE,** District Judge.




                                          I


  *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  **
      The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
      Defendant Abel Yudico Lazcano contends that he failed to register as a sex

offender in an attempt to avoid detection as an illegal alien, and, therefore, his

conviction for failing to register should have been considered relevant conduct to

his current immigration offense and not part of his criminal history.

      We have recently held that conduct which occurred “in the course of

attempting to avoid detection or responsibility” for the crime of conviction

constitutes relevant conduct under § 1B1.3(a)(1)(A) of the Sentencing Guidelines.

United States v. Rivera-Gomez, --- F.3d ----, 2011 WL 310345, at *6 (9th Cir. Feb.

2, 2011). The district court did not have the benefit of that decision when it

sentenced Lazcano. Therefore, we must vacate Lazcano’s sentence and remand so

that the district court can make a factual finding as to Lazcano’s motivation for

failing to register and re-sentence Lazcano as appropriate. The district court at the

time of sentencing made no express finding on the question of whether defendant

failed to register “in the course of attempting to avoid detection or responsibility

for [his current immigration offense.]” U.S.S.G. § 1B1.3(a)(1)(A).

                                           II

      Lazcano correctly asserts that the judgment erroneously recites that he was

convicted of “the offense of 8 U.S.C. § 1326(a), (b)(2).” Section 1326(b)(2) is a

sentencing factor, however, and not a separate criminal offense. See United States



                                           2
v. Gomez-Mendez, 486 F.3d 599, 605-06 (9th Cir. 2007), cert. denied, 128 S. Ct.

545 (2007). Therefore, on remand, the district court is instructed to delete from the

judgment the reference to a conviction under 8 U.S.C. § 1326(b)(2).

                                         III

      The parties agree that the district court erred in issuing a written judgment

that was inconsistent with the oral pronouncement of the sentence. When there is a

conflict between an unambiguous oral pronouncement of sentence and a written

judgment and commitment order, the oral pronouncement controls. United States

v. Napier, 463 F.3d 1040, 1043-44 (9th Cir. 2006). On remand, the district court

can ensure that the written judgment is consistent with the oral pronouncement of

Lazcano’s new sentence.

      VACATED AND REMANDED.




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