                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 29 2010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. 08-50520

             Plaintiff - Appellee,               D.C. No. 3:08-cr-00718-W-1

  v.
                                                 MEMORANDUM *
ADAN GUERRERO-FLORES,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-50581

             Plaintiff - Appellant,              D.C. No. 3:08-cr-00718-W-1

  v.

ADAN GUERRERO-FLORES,

             Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                      Argued and Submitted January 15, 2010
                               Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOODWIN, SCHROEDER and FISHER, Circuit Judges.

      Adan Guerrero-Flores appeals from his 27-month sentence, which the

district court imposed after making an eight-level aggravated felony enhancement

for his prior North Carolina conviction for taking indecent liberties with a child in

violation of North Carolina General Statute § 14-202.1. Guerrero-Flores contends

the enhancement should have been only four levels because the record did not

support the aggravated felony enhancement. The government cross appeals,

claiming that the district court should have imposed a sixteen-level enhancement

for a “crime of violence.”

      The government commendably acknowledged in oral argument that the

eight-level enhancement was fair under the circumstances. Were we to vacate the

sentence and remand for resentencing, Guerrero-Flores would face the risk of a

sixteen-level enhancement, even though the prison term of the existing sentence

has almost expired.

      We have carefully reviewed the record below and the arguments presented

to us on appeal. We conclude there is no sound reason to vacate the sentence and

remand for resentencing or to grant the government’s motion that this court take

judicial notice of matters outside this record.




                                           2
      The motion for judicial notice is DENIED and the judgment and sentence of

the district court is AFFIRMED.




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