Buelna-Cota

MEMORANDUM **

Jesus Buelna-Cota appeals his conviction and sentence on one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 . Although we affirm Buelna-Cota’s conviction, we vacate his sentence and remand for resentencing.

Buelna-Cota contends that the indictment which alleged in a single count that he “entered, attempted to enter, or was found in the United States”, was duplicitous. See United States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir.2001). Prior to the commencement of trial, however, the district court granted Buelna-Cota’s motion to strike the “entered or attempted to enter” allegations from the indictment. Thus, the indictment upon which Buelna-Cota was tried and convicted alleged only that he was “found in” the *976 United States, and was not duplicitous.

Buelna-Cota also contends the district court erroneously concluded that his prior conviction for possession of marijuana under Arizona Revised Statutes § 13-3405 was an aggravated felony. Our recent decision in United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir.2002), not available to the district court at the túne of…