Opinion
No. 14-50230
04-10-2015
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ADRIAN TOLEDO-MARTINEZ, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:13-cr-02616-BEN-1 MEMORANDUM Appeal from the United States District Court for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted April 8, 2015 Pasadena California Before: SILVERMAN and BEA, Circuit Judges and DONATO, District Judge.
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).
The Honorable James Donato, District Judge for the U.S. District Court for the Northern District of California, sitting by designation.
Defendant Adrian Toledo-Martinez appeals his conviction and sentence for being found in the United States after removal in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.
The defendant argues that his Washington Revised Code § 69.50.401 convictions for delivery of cocaine and heroin are not categorical drug trafficking offenses. However, we recently rejected the same argument advanced by the defendant, that § 69.50.401(a) is categorically overbroad because it fails to exempt acts of "administering" drugs. See United States v. Burgos-Ortega, 777 F.3d 1047, 1052-55 (9th Cir. 2015). The district court did not err when it denied the motion to dismiss the indictment and applied a 12-level increase to the base offense level pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A).
United States Sentencing Commission, Guidelines Manual, § 2L1.2(b)(1)(A) (Nov. 2013).
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AFFIRMED.