UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel CERVANTES-SANTANA, Defendant-Appellant, 259 F. App'x 992

MEMORANDUM Jose Angel Cervantes-Santana appeals from the 30-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand. Cervantes-Santana contends that the district court erred by assessing one criminal history point for his 1993 conviction for driving with a suspended license which resulted in a wholly suspended sentence. In light of recent clarifying law, we agree. See United States v. Gonzales, 506 F.3d 940, 943-45 (9th Cir.2007) (en banc).

We further conclude that this error was not harmless. See United States v. Alvarez-Hernandez, 478 F.3d 1060, 1067-68 (9th Cir.2007). Accordingly, we vacate the sentence and remand for re-sentencing consistent with Gonzales. See Gonzales, 506 F.3d at 943-45. Cervantes-Santana next contends that the district court erred by increasing his sentence pursuant to 8 U.S.C. § 1326(b)(2) based on a prior conviction that he did not admit, and a jury did not find beyond a reasonable doubt. As he concedes, this contention is foreclosed. See United States v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir.2006).

VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.