                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS                             FILED
                          FOR THE NINTH CIRCUIT                               NOV 03 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 08-50466

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00503-GAF-1

  v.
                                                 MEMORANDUM*
ANTONIO TRUJILLO, AKA Lil
Wicked,

              Defendant - Appellant.


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

                       Argued and Submitted June 10, 2010
                              Pasadena, California

Before:       KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge and
              BENNETT, District Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Mark W. Bennett, U.S. District Judge for the Northern
District of Iowa, sitting by designation.
                                                                                   page 2
      The district court gave three alternative grounds for imposing two additional

criminal history points under U.S.S.G. § 4A1.1(d). The defendant challenged only

one ground in his opening brief, and so challenges to the others are waived. See

Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010) (“[F]ailure of a party

in its opening brief to challenge an alternate ground for a district court’s ruling

given by the district court waives that challenge.” (emphasis omitted)); see also

Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) (en banc). Even

if the government’s mention of these alternate grounds in its response brief could

be considered a “waiver of waiver,” which would give us the discretion to review

these claims, see Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004), we

wouldn’t do so because the defendant never challenged the district court’s third

independent basis.

      Additionally, the district court did not err in requiring the defendant to

undergo at least two drug tests in its written judgment because it didn’t directly

conflict with its oral sentence requiring “periodic drug testing . . . not to exceed

eight tests per month.” Cf. United States v. Hicks, 997 F.2d 594, 597 (9th Cir.

1993) (remanding to conform the written judgment to the oral sentence where

“there [was] a direct conflict”).
                                                                              page 3
      We remand 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 to delete erroneous

reference to section 1326(b)); see also United States v. Rivera-Sanchez, 222 F.3d

1057, 1062 (9th Cir. 2000).


      AFFIRMED; REMANDED TO CORRECT JUDGMENT
