                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 11 2009

                                                                        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. 08-50292

               Plaintiff - Appellant,            D.C. No. 3:08-cr-00401-H

   v.
                                                 MEMORANDUM *
 LUIS ENRIQUE CRUZ-VALLES,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Southern District of California
                      Marilyn L. Huff, District Judge, Presiding

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        The government appeals from the district court’s judgment dismissing an

indictment that charged Luis Enrique Cruz-Valles with being a deported alien



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

EF/Research
found in the United States, in violation of 8 U.S.C. § 1326(a). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see United States v.

Gonzalez-Valerio, 342 F.3d 1051, 1053 (9th Cir. 2003), and we vacate and

remand.

       The government contends that the judgment must be reversed in light of our

intervening decisions in United States v. Marguet-Pillado, 560 F.3d 1078 (9th

Cir.), cert. denied, 2009 WL 2947085 (2009), and Martinez-Madera v. Holder, 559

F.3d 937 (9th Cir. 2009). We agree.

       We decline to address Cruz-Valles’ argument that Marguet-Pillado and

Martinez-Madera should be overruled. See United States v. Lynch, 367 F.3d 1148,

1158 (9th Cir. 2004) (per curiam).

       We therefore vacate and remand for proceedings consistent with this

disposition.

       VACATED and REMANDED.




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