                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2010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. 08-50471

               Plaintiff - Appellee,             D.C. No. 5:08-cr-00106-VAP

  v.
                                                 MEMORANDUM *
ANTONIO FREDY CEA-RODRIGUEZ,

               Defendant - Appellant.



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

                              Submitted May 25, 2010 **

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

       Antonio Fredy Cea-Rodriguez appeals from the 37-month sentence imposed

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




          *
             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).
States, 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.

         Cea-Rodriguez contends that the district court erred by considering his

conviction for violating California Penal Code § 245(a)(1) to be a categorical crime

of violence under U.S.S.G. § 2L1.2. The valid appeal waiver precludes our review

of this contention. See United States v. Bibler, 495 F.3d 621, 623-24 (9th Cir.

2007).

         Cea-Rodriguez contends that the district court erred by considering his

January 2008 conviction to be a “prior sentence” for purposes of calculating his

criminal history under the Sentencing Guidelines. This contention is foreclosed by

United States v. Cruz-Gramajo, 570 F.3d 1162, 1167-74 (9th Cir. 2009).

         Cea-Rodriguez also contends that the district court erred by assigning him

criminal history points under U.S.S.G. § 4A1.1(d) and (e) for committing part of

the offense while under a criminal justice sentence and while in imprisonment. He

argues that his section 1326 offense was complete when he was arrested by local

authorities, which was before he was convicted of the new state offenses and

imprisoned for them. Cea-Rodriguez is incorrect. His section 1326 offense was

not complete until immigration officials found him. See United States v.

Hernandez, 189 F.3d 785, 791 (9th Cir. 1999) (recognizing that for purposes of the


                                            2                                      08-50471
Sentencing Guidelines, the “offense of being found in the United States ends when

an alien is discovered and identified by the immigration authorities”). Cea-

Rodriguez also is incorrect when he asserts that, because he could not leave the

country while imprisoned, he was not continuing to violate section 1326 while he

was imprisoned by local authorities for the new state offenses. See United States v.

Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir. 1995) (“We also reject Ortiz-Villegas’

argument that he did not have the required intent to be ‘found in’ the United States

because he was involuntarily incarcerated within United States’ borders at the time

he was located.”). Cea-Rodriguez’ “inability to depart this country was of his own

making.” See id. at 1437 n.2.

      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)). On remand, the court also shall correct

the judgment to reflect that Cea-Rodriguez was convicted of being an illegal alien

found in the United States after deportation, not for illegal re-entry.

      AFFIRMED; REMANDED to correct judgment.




                                           3                                     08-50471
