                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 17 2009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. 08-50580

               Plaintiff - Appellee,             D.C. No. 3:07-cr-03347-JTM

   v.
                                                 MEMORANDUM *
 JOSE RUBEN NIETO-RESENDIZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Jeffrey T. Miller, District Judge, Presiding

                           Submitted November 17, 2009 **


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

        Jose Ruben Nieto-Resendiz appeals from the 45-month sentence imposed

following his guilty-plea conviction for being a deported 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 finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

SZ/Research
States, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We affirm, but remand to correct the judgment.

       Nieto-Resendiz contends that the district court erred when it applied a 16-

level enhancement, pursuant to U.S.S.G. § 2L1.2, because his prior conviction for

lewd or lascivious acts with a child under 14 years of age, in violation of Cal. Penal

Code § 288(a), does not qualify as a crime of violence. He contends that Estrada-

Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), overruled United

States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), and United States v.

Medina-Maella, 351 F.3d 944 (9th Cir. 2003). This contention is foreclosed by

United States v. Medina-Villa, 567 F.3d 507, 511-16 (9th Cir. 2009).

       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 § 1326(b). 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 to correct the judgment.




SZ/Research                                2                                     08-50580
