Rosales-Hernandez

MEMORANDUM **

Ever Estid Rosales-Hernandez appeals his thirty-seven month sentence imposed for violating 8 U.S.C. § 1326 . He contends his prior conviction for attempted first-degree assault under Nebraska Revised Statutes § 28-308 was not a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A)(ii). We have jurisdiction pursuant to 18 U.S.C. § 3742 (a)(1), and we vacate and remand for resentencing.

Although the Guidelines are advisory, an incorrect Guideline calculation is procedural error. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). We review de novo whether a district court’s interpretation of the Guidelines was erroneous. United States v. Grissom, 525 F.3d 691 , 696 & n. 2 (9th Cir.2008).

The government no longer contends here (as the district court had reasoned) that § 28-308 falls within the “catch all” provision in § 2L1.2 cmt. n. l(B)(iii) (“application note l(B)(iii)”) for crimes having a “use of physical force” element. The government has therefore waived that argument. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105 , 1110 n. 1 (9th Cir.2000) (en banc) (“[Ijssues not raised in a party’s opening brief are waived.”), vacated on other…