                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          AUG 11 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 10-50560

               Plaintiff - Appellee,             D.C. No. 3:10-cr-02273-H

  v.
                                                 MEMORANDUM *
ADRIAN AGUILAR-RIVERA,
a.k.a. Julio Cesar Castaneda,

               Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                             Submitted August 2, 2011 **

Before:        RYMER, IKUTA, and N.R. SMITH, Circuit Judges.

       Adrian Aguilar-Rivera appeals from the 30-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.


          *
             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).
§ 1291 and we affirm in part, vacate in part and remand for resentencing.

      Aguilar-Rivera first contends the district court erred in holding that his prior

conviction for grand theft, in violation of California Penal Code § 487(a), qualified

as an aggravated felony under the modified-categorical approach. Aguilar-Rivera

is correct; the record before the district court does not establish Aguilar-Rivera

admitted to all of the elements of generic theft. See United States v. Vidal, 504

F.3d 1072, 1086 (9th Cir. 2007) (en banc) (“A prior conviction based on an overly

inclusive criminal statute that resulted from a guilty plea rather than a jury verdict

will support a sentence enhancement only if the record confirms that the plea

necessarily rested on the fact identifying the [offense] as generic.”) (internal

quotation marks omitted) (quoting Shepard v. United States, 544 U.S. 13, 21

(2005)); Carrillo-Jaime v. Holder, 572 F.3d 747, 751 (9th Cir. 2009).

      Aguilar-Rivera’s contention concerning Almendarez-Torres is foreclosed.

See United States v. Valdovinos-Mendez, 641 F.3d 1031, 1036 (9th Cir. 2011).

      As the government has not met its burden of demonstrating that Aguilar-

Rivera’s § 487(a) conviction qualified as an aggravated felony, we vacate the

sentence and remand for resentencing. See United States v. Matthews, 278 F.3d

880, 885-86 (9th Cir. 2002) (en banc).

      AFFIRMED in part; VACATED in part; and REMANDED.


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