                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 17 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ARMANDO FLORES-HERNA,                            No. 11-72135

              Petitioner,                        Agency No. A076-625-266

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted October 7, 2014**
                               Pasadena, California

Before: TALLMAN, BEA, and FRIEDLAND, Circuit Judges.

       Armando Flores-Herna petitions for review of the Board of Immigration

Appeals’ decision denying Flores-Herna adjustment of status on account of his

2005 conviction for possessing a controlled substance “while armed with a loaded,

operable firearm.” See Cal. Health & Safety Code § 11370.1 (1996). Flores-Herna

        *
             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).
argues his conviction is eligible for relief under the safe-harbor provision of the

Federal First Offender Act, which requires that a petitioner’s conviction be for

“possession of drugs, or an equivalent or lesser charge such as possession of drug

paraphernalia.” Ramirez-Altamirano v. Holder, 563 F.3d 800, 812 (9th Cir. 2009),

overruled on other grounds by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.

2011) (en banc); see also Lopez-Vasquez v. Holder, 706 F.3d 1072, 1074–75 (9th

Cir. 2013). On its face, Flores-Herna’s 2005 conviction requires more conduct

than mere possession of drugs; the conviction requires possession of drugs while

armed with a loaded and operable firearm. The conviction therefore cannot qualify

as “possession of drugs, or an equivalent or lesser charge.” Ramirez-Altamirano,

563 F.3d at 812.

      DENIED.




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