                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 15 2010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. 09-50110

               Plaintiff - Appellee,             D.C. No. 2:08-cr-01465-RGK

  v.
                                                 MEMORANDUM *
PATRICIA CASTANEDA MADEROS,

               Defendant - Appellant.



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

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Patricia Castaneda Maderos appeals from the 46-month sentence imposed

following her guilty-plea conviction for being an illegal alien found in the United

States following deportation, in violation of 8 U.S.C. § 1326(a). We have

          *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand to correct the

judgment.

      Maderos contends that the district court miscalculated her Sentencing

Guidelines range because it counted prior sentences towards her criminal history

score pursuant to U.S.S.G. § 4A1.2, rather than as relevant conduct pursuant to

U.S.S.G. § 1B1.3. As Maderos acknowledges, this contention is foreclosed. See

United States v. Cruz-Gramajo, 570 F.3d 1162, 1167 (9th Cir. 2009).

      Maderos also contends that the district court erred by applying two criminal

history points pursuant to U.S.S.G. § 4A1.1(d) because she was not on probation

when she illegally reentered the United States. The district court did not err

because Maderos was sentenced on a new state conviction before she was found in

the United States for purposes of 8 U.S.C. § 1326(a). See id. at 1174-75.

      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 8 U.S.C. § 1326(b)(1). See

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

sua sponte to delete the reference to § 1326(b)).

      AFFIRMED; REMANDED with instructions to correct the judgment.




                                           2                                     09-50110
