                                                                             FILED
                     UNITED STATES COURT OF APPEALS                          JUL 21 2015

                                                                       MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                      U.S. COURT OF APPEALS




MILTON LOMELI-CAPETILLO,                           No. 10-70944

               Petitioner,                         Agency No. A037-429-761

 v.
                                                   ORDER
LORETTA E. LYNCH, Attorney General,

               Respondent.


Before:      CANBY, GOULD, and N.R. SMITH, Circuit Judges.

      Lomeli-Capetillo's petition for panel rehearing is granted.

      The memorandum disposition filed on January 29, 2015, is withdrawn. A

replacement memorandum disposition is being filed concurrently with this order.

      Lomeli-Capetillo's petition for rehearing en banc is denied as moot.

      Any petition for rehearing of the replacement memorandum disposition must

be filed within 45 days of the filing date of this order.
                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 21 2015

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



                             FOR THE NINTH CIRCUIT


MILTON LOMELI-CAPETILLO,                         No. 10-70944

               Petitioner,                       Agency No. A037-429-761

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                                 January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Milton Lomeli-Capetillo, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals' order dismissing his appeal from an

immigration judge's removal order. We have jurisdiction under 8 U.S.C. y 1252.




          *
             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).
We review de novo questions of law. Medina-Lara v. Holder, 771 F.3d 1106,

1111 (9th Cir. 2014).

      Under the modified categorical approach, the government has not met its

burden of proving by clear and convincing evidence that Lomeli-Capetillo was

convicted of transportation of methamphetamine. See id. at 1113. The complaint

charged Lomeli-Capetillo with six counts of misconduct. Reviewing the abstract

of judgment, it seems that Lomeli-Capetillo pleaded guilty to only two of those

counts. However, reviewing the record, it is unclear whether the counts of the

complaint match the counts in the abstract of judgment. It is further unclear to

which counts Lomeli-Capetillo pleaded guilty. See id. at 1114-15.

      We therefore grant the petition for review and remand for further

proceedings.

      PETITION FOR REVIEW GRANTED; REMANDED.




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