United States of America, Plaintiff-appellee, v. Javier Francisco Fierro-avalos, Defendant-appellant, 113 F.3d 1243 (9th Cir. 1997)

MEMORANDUM^** 

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.

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).

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