FILED
NOT FOR PUBLICATION JUL 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10293
Plaintiff - Appellee, D.C. No. 3:08-cr-00125-BES
v.
MEMORANDUM *
JOSE FRANCISCO RIVAS-
CHAVARRIA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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
2 09-10293
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).
AFFIRMED.
3 09-10293