United States v. Serratos-Marentes

MEMORANDUM ** Jose Antonio Serratos-Marentes appeals from the 18-month sentence imposed fol *558 lowing his guilty plea to illegal reentry of a deported alien in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand. Serratos-Marentes contends that, in light of the Supreme Court’s recent decision in Lopez v. Gonzales, — U.S.-, 127 S.Ct. 625, 633 , 166 L.Ed.2d 462 (2006), the district court improperly imposed an eight-level increase under U.S.S.G. § 2L1.2(b)(l)(C) for his prior state felony drug possession conviction under California Health & Safety Code § 11350(a), because his crime was only a misdemeanor under the federal Controlled Substances Act. The government agrees that this case should be remanded for re-sentencing in light of Lopez . We vacate the sentence and remand for re-sentencing. In accordance with United States v. Riveroir-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we additionally instruct the district court on remand to delete from the judgment the incorrect reference to 8 U.S.C. § 1326 (b)(1). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)). The mandate shall issue forthwith. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provid *558 ed by 9th Cir. R. 36-3.