#### UNITED STATES of America, Plaintiff—Appellee, v. Jaime PEREZ-AGUILAR, Defendant—Appellant.

No. 06-10198.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2007.

Filed June 9, 2008.

Elizabeth R. Berenguer, Esq., Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.

Greta Yietor, Esq., Federal Public Defender’s Office, Tucson, AZ, for Defen-' dant-Appellant.

Before: BYBEE and M. SMITH, Circuit Judges, and SEABRIGHT *, District Judge.

*

 The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation.

MEMORANDUM **

Jaime Perez-Aguilar appeals the sentence imposed following his guilty plea to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a). Because the parties are aware of the facts of the case, we do not recount them here. We vacate the sentence and remand for resentencing.

Perez-Aguilar argues that the panel should vacate his sentence because the district court erroneously applied a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A) based on Perez-Aguilar’s prior conviction under Cal.Penal Code § 286(b)(1). Because Perez-Aguilar never objected to the application of the 16-level enhancement in the district court, we review this issue for plain error. *See United States v. Olano,*507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

The district court erred in applying the 16-level enhancement because Perez-Aguilar’s prior conviction for “sodomy with another person who is under 18 years of age” in violation of Cal.Penal Code § 286(b)(1) does not categorically constitute statutory rape under the guidelines, thus qualifying as a crime of violence. *See*U.S.S.G. § 2L1.2(b)(l)(A) & app. n.l(B)(iii). After the district court sentenced Perez-Aguilar, we held that while California sets the age of consent at eighteen, “the term ‘minor’ in the context of a statutory rape law means a person under sixteen years of age.” *United States v. Rodriguez-Guzman,*506 F.3d 738, 745 (9th Cir.2007). CalPenal Code § 286(b)(1) is therefore broader than U.S.S.G. § 2L1.2(b)(l)(A), and so Perez-Aguilar’s prior conviction for its violation cannot categorically qualify as statutory rape and thus a crime of violence.

Although not available to the district court at the time of sentencing, in light of our subsequently decided precedent, the district court’s error was plain. *See Johnson v. United States,*520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that on plain error review “it is enough that an error be ‘plain’ at the time of *517appellate consideration”). Erroneous application of a sentencing enhancement affects the defendant’s substantial rights and “affeet[s] both the fairness and integrity of our judicial system.” *United States v. Portillo-MencLoza,*273 F.3d 1224, 1228 (9th Cir.2001) (vacating sentence rendered plainly erroneous by subsequent case law).

We therefore vacate the sentence with instructions for the district court to resentence Perez-Aguilar on an open record, analyzing his conviction under CalPenal Code § 286(b)(1) under the modified categorical approach.

VACATED and REMANDED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.