                                                                           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                            NOT FOR PUBLICATION                             OCT 12 2010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
