The opinion
FILED
NOT FOR PUBLICATION OCT 12 2010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. 09-50462
Plaintiff - Appellee, D.C. No. 3:08-cr-04204-JM
v.
MEMORANDUM *
PEDRO SANCHEZ-ZARATE, AKA
Antonio Sanchez-Garcia,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Pedro Sanchez-Zarate appeals from the 60-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291, and we affirm.
Sanchez-Zarate contends that the district court erred in finding that his prior
conviction under California Health and Safety Code § 11351 categorically qualifies
as a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i). He contends that
California Health and Safety Code § 11351 is categorically overbroad because it
prohibits the possession or purchase for sale of a wider range of controlled
substances than does federal law. Because this court has previously noted that
“California law regulates the possession and sale of numerous substances that are
not similarly regulated by the [Controlled Substances Act]”, Ruiz-Vidal v.
Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007), we look to whether
“documentation or judicially noticeable facts”, United States v. Benitez-Perez, 367
F.3d 1200, 1203 (9th Cir. 2004) (internal quotation marks and citations omitted),
clearly establish that Sanchez-Zarate’s prior conviction qualifies as a drug
trafficking offense.
The amended felony complaint and the nolo contendere order show that
Sanchez-Zarate admitted to possessing or purchasing for sale cocaine. Cf. United
States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) (holding that a
complaint and “written plea and waiver of rights” form failed to establish the
factual predicate for appellant’s plea of guilty pursuant to People v. West, 3 Cal. 3d
2 09-50462
595 (1970), because the documents failed to establish that appellant admitted to the
factual allegations in the complaint). Hence, even if California Health and Safety
Code § 11351 can be construed as overbroad, the record establishes that Sanchez-
Zarate was convicted of the generically defined crime.
AFFIRMED.
3 09-50462