                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 05 2011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. 09-50669

               Plaintiff - Appellee,             D.C. No. 3:09-cr-00866-JAH

  v.
                                                 MEMORANDUM *
ROBERTO OLIVER-GUZMAN,

               Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Roberto Oliver-Guzman appeals from the 65-month sentence imposed

following his guilty-plea conviction for being a deported alien found in the United

States, in violation of 8 U.S.C. §1326. We have jurisdiction under 28 U.S.C.

§ 1291, and we vacate and remand.

          *
             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).
      Oliver-Guzman contends that the district court procedurally erred when it

did not consider his policy arguments against the 16-level enhancement under

U.S.S.G. § 2L1.2. The record indicates that the district court mistakenly believed

that it did not have the authority to reject the 16-level enhancement on policy

grounds. See Spears v. United States, 129 S.Ct. 840, 843-44 (2009) (per curiam);

United States v. Williams, 624 F.3d 1023, 1028 (9th Cir. 2010) (“[D]istrict judges

are at liberty to reject any Guideline on policy grounds . . . .”). We vacate and

remand for resentencing. See Moore v. United States, 129 S.Ct. 4, 5 (2008) (per

curiam).

      VACATED and REMANDED.




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