Opinion
No. 09-10293.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed July 26, 2010.
Elizabeth A. Olson, Esquire, Assistant U.S., U.S. Attorney, Reno, NV, for Plaintiff-Appellee.
Michael K. Powell, Esquire, Assistant Federal Public Defender, FPDNV-Federal Public Defender's Office, Reno, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, Brian E. Sandoval, District Judge, Presiding. D.C. No. 3:08-cr-00125-BES.
Before: ALARCON, LEAVY, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Francisco Rivas-Chavarria appeals from the 37-month sentence imposed following his guilty-plea conviction for unlawful reentry by a deported, removed or excluded alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rivas-Chavarria contends that his prior "possession for sale" convictions, in violation of California Health and Safety Code §§ 11351 and 11351.5, do not categorically qualify as drug trafficking offenses under U.S.S.G. § 2L1.2, because the statutes do not require the intent to sell the controlled substance. This argument is foreclosed by the plain language of the guideline which includes as a qualifying offense possession with intent to distribute or dispense. See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iv).
Rivas-Chavarria also contends that this court is not bound by its decision in United States v. Morales-Perez, 467 F.3d 1219 (9th Cir. 2006), because, although Morales-Perez ultimately concluded, that section 11351.5 qualifies as a drug trafficking offense under the guidelines, the decision construed only the "purchase for purposes of sale" portion of the statute and not the possession prong that is at issue here. This contention is unpersuasive because the reasoning in Morales-Perez supports the conclusion that the possession prong of the statute also categorically qualifies as a drug trafficking offense under U.S.S.G. § 2L1.2. See Morales-Perez, 467 F.3d at 1221-23; cf. United States v. Charles, 581 F.3d 927, 934-35 (9th Cir. 2009); United States v. Benitez-Perez, 367 F.3d 1200, 1204 (9th Cir. 2004).