                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 22 2012

                                                                        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. 10-10508

              Plaintiff - Appellee,              D.C. No. 4:09-cr-02542-FRZ-
                                                 CRP-1
  v.

CATALINO PINEDA,                                 MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                  Frank R. Zapata, Senior District Judge, Presiding

                      Argued and Submitted December 8, 2011
                             San Francisco, California

Before: TROTT and BEA, Circuit Judges, and GEORGE, Senior District Judge.**

       Catalino Pineda appeals his sentence for his criminal conviction for illegal

reentry after removal under 8 U.S.C. § 1326(a), with an enhancement under 8

U.S.C. § 1326(b) for having previously been convicted of an aggravated felony.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lloyd D. George, Senior District Judge for the U.S.
District Court for Nevada, sitting by designation.
Pineda had previously been convicted of arson in violation of California Penal

Code § 451(c).

      Pineda’s conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a),

carries a statutory maximum sentence of 2 years, but that maximum goes up to 10

years if he was previously convicted of a felony, and up to 20 years if he was

previously convicted of an aggravated felony. 8 U.S.C. § 1326(b).

      Pineda concedes that his conviction qualifies as a felony under 8 U.S.C.

§ 1326(b)(1), whether or not it is an aggravated felony under 8 U.S.C.

§ 1326(b)(2).1 Thus, the district court could have sentenced Pineda up to 10 years.

We therefore affirm the sentence of forty-eight months imposed by the district

court, and remand for the district court to correct the judgment to cite 8 U.S.C.

§ 1326(b)(1) instead of 8 U.S.C. § 1326(b)(2).

      AFFIRMED and REMANDED.




      1
         We do not opine on any tension between United States v. Velasquez-Reyes,
427 F.3d 1227, 1230 (9th Cir. 2005) (interpreting U.S.S.G. § 2L1.2 cmt. 1(B)(iii)
(2001)), and Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007)
(interpreting 8 U.S.C. § 1101(a)(43)), in the method to be used to determine
whether a prior conviction qualifies as an aggravated felony because any such
decision is not necessary in this case.

                                          2
