                                                                             FILED
                            NOT FOR PUBLICATION                                  OCT 28 2011

                                                                          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. 07-10552

               Plaintiff - Appellee,              D.C. No. CR-07-00642-RCC

  v.
                                                  MEMORANDUM *
JOSE ORTIZ-MONTANO,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Jose Ortiz-Montano appeals from the 51-month sentence imposed following

his conviction for illegal reentry after deportation, in violation of 8 U.S.C.

§ 1326(a), enhanced by 8 U.S.C. § 1326(b)(2). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

          *
             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).
      Ortiz-Montano contends that the district court committed plain error when it

imposed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based

on his 1985 guilty-plea conviction for burglary under California Penal Code § 459.

He argues that the government did not present sufficient evidence from appropriate

judicial records to prove that his prior conviction qualified as a crime of violence.

The district court did not apply the modified categorical approach to analyze

whether Ortiz-Montano’s prior conviction qualified for the 16-level sentencing

increase. See United States v. Aguila-Montes De Oca, _ F.3d _, 2011 WL 3506442

at *25-26 (9th Cir. Aug. 11, 2011) (en banc).

      Since Ortiz-Montano has been deported, he cannot be resentenced unless he

returns to the United States. Thus, we affirm the sentence without prejudice to an

application by Ortiz-Montano to the district court to vacate his sentence and

resentence him consistent with our en banc decision in Aguila-Montes De Oca at

such time, if ever, that he is in this country and available for resentencing. See

United States v. Plancarte-Alvarez, 366 F.3d 1058, 1065 (9th Cir. 2004), amended

by 449 F.3d 1059 (9th Cir. 2006).

      Ortiz-Montano also contends that the 16-level enhancement violates the Ex

Post Facto Clause because the Sentencing Guidelines did not take effect until after

the date of the conviction used as the basis for the enhancement. The contention is


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without merit. See United States v. Kienenberger, 13 F.3d 1354, 1356-57 (9th Cir.

1994).

         The Government’s motion for judicial notice filed on December 12, 2008 is

denied as moot.

         AFFIRMED.




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