                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010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. 07-50130

               Plaintiff - Appellee,             D.C. No. CR-06-01359-BTM

  v.
                                                 MEMORANDUM *
RAMON ALBERTO ARANA-
ESQUIVEL,

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Southern District of California
                    Barry T. Moskowitz, District Judge, Presiding

                              Submitted June 29, 2010 **

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

       Ramon Alberto Arana-Esquivel appeals from the 57-month sentence

imposed following his guilty-plea conviction for being a deported alien found in

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


          *
             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).
U.S.C. § 1291. We affirm, but remand to correct the judgment.

      Arana-Esquivel contends that the district court erred by determining that his

prior conviction for assault with a semiautomatic firearm, in violation of California

Penal Code § 245(b), constituted a crime of violence under U.S.S.G. § 2L1.2,

because section 245(b) prohibits merely negligent or reckless conduct and does not

require specific intent. This contention is foreclosed. See United States v.

Grajeda, 581 F.3d 1186, 1192-97 (9th Cir. 2009).

      Arana-Esquivel also contends that a conviction under section 245(b) is not a

categorical crime of violence because it can be based on California’s theory of

aiding and abetting, which is broader than the federal generic definition. This

contention is unpersuasive. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-

94 (2007).

      Finally, Arana-Esquivel contends that the district court erred by imposing a

sentence in excess of the two-year statutory maximum under 8 U.S.C. § 1326. He

contends that the avoidance of constitutional doubt doctrine limits the holding of

Almendarez-Torres v. United States, 523 U.S. 224 (1998), that Almendarez-Torres

has been overruled, and that section 1326(b) is unconstitutional. These contentions

are foreclosed. See United States v. Grisel, 488 F.3d 844, 846-47 (9th Cir. 2007)

(en banc). Arana-Esquivel further contends that the district court improperly


                                          2                                     07-50130
determined the date of his prior conviction, the date of his prior deportation, and

the temporal relationship between the two. These contentions are unpersuasive.

See id. at 847.

      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 section 1326(b). See United

States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte

to delete the reference to section 1326(b)).

      AFFIRMED; REMANDED to correct judgment.




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