                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 22 2010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. 08-50272

               Plaintiff - Appellee,             D.C. No. 5:08-cr-00011-VAP

  v.
                                                 MEMORANDUM *
PEDRO SOTO-MONTENEGRO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Pedro Soto-Montenegro appeals from the 51-month sentence imposed

following his guilty-plea conviction for illegal reentry by an alien following

deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm, but remand to correct the judgment.

          *
             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).
      Soto-Montenegro contends that the district court miscalculated his criminal

history score when it added a criminal history point for a 2007 conviction for

shoplifting because it involved conduct that occurred during the commission of his

illegal reentry offense. This argument is foreclosed by United States v. Cruz-

Gramajo, 570 F.3d 1162, 1164, 1167-73 (9th Cir. 2009).

      Soto-Montenegro also contends that the district court plainly erred when it

added two points to his criminal history score for a 180-day sentence that was

imposed more than ten years prior to the commencement of the instant offense.

The government concedes that this was an erroneous assignment of criminal

history points under the Guidelines. However, the error did not impact Soto-

Montenegro’s substantial rights because he remains a category VI offender even

after the deduction of these points from his criminal history score. See id. at 1174.

      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 reference to 8 U.S.C. § 1326(b)(2).

      AFFIRMED; REMANDED to correct the judgment.




                                           2                                     08-50272
