United States of America v. Rodolfo Rivas Perez

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RODOLFO RIVAS PEREZ,
Defendant - Appellant.
No. 09-50067
D.C. No. 2:08-cr-01193-GW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted April 5, 2010**
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Rodolfo Rivas Perez appeals from the 30-month sentence imposed following
his guilty-plea conviction for being an illegal alien found in the United States
FILED
APR 22 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-50067 2
following deportation, 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.
Rivas Perez 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
acts with a child under 14 years of age, in violation of California Penal Code
§ 288(a), does not qualify as a crime of violence. 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)(2). See United States
v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to § 1326(b)).
Rivas Perez’s petition for initial hearing en banc is denied.
AFFIRMED; REMANDED to correct judgment.

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