United States v. Javier Francisco Fierro-Avalos

113 F.3d 1243

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Javier Francisco FIERRO-AVALOS, Defendant-Appellant.

No. 95-50210.

United States Court of Appeals, Ninth Circuit.

Submitted April 21, 1997.*
Decided April 29, 1997.

Before: BROWNING, THOMPSON, and HAWKINS, Circuit Judges.

1

MEMORANDUM**

2

Javier Francisco Fierro-Avalos appeals his guilty plea conviction and sentence under the Sentencing Guidelines for illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326(a), (b)(1), (b)(2). Fierro-Avalos' attorney submitted a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw as counsel of record.

3

In light of United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir.1996) (en banc), we vacate Fierro-Avalos' conviction under § 1326(b)(2) for illegal reentry following deportation that was subsequent to a conviction of an aggravated felony. In supplemental briefing ordered by this court, the government concedes that vacation of the § 1326(b)(2) conviction is required in light of Gomez-Rodriguez. On remand, the district court shall resentence Fierro-Avalos on his conviction of the lesser-included offense of § 1326(b)(1): reentry following a deportation which was subsequent to a conviction of a felony. See generally United States v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir.1992) (section 1326(a) is a lesser-included offense of section 1326(b)(1)); cf. United States v. Vasquez-Chan, 978 F.2d 546, 554, citing with approval United States v. Franklin, 728 F.2d 994, 1000-01 (8th Cir.1984) (entering judgment of conviction of lesser-included offense where district court necessarily found elements present in convicting defendant of greater offense).

4

Fierro-Avalos' counsel's motion to withdraw is DENIED. The judgment is VACATED and the case is REMANDED for proceedings consistent with this disposition.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3