                                                                           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                            NOT FOR PUBLICATION                             JUL 26 2010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
