                                                                              FILED
                           NOT FOR PUBLICATION                                APR 10 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50230

              Plaintiff - Appellee,              D.C. No. 3:13-cr-02616-BEN-1

  v.
                                                 MEMORANDUM*
ADRIAN TOLEDO-MARTINEZ,

              Defendant - Appellant.


                   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).1

      AFFIRMED.




      1
      United States Sentencing Commission, Guidelines Manual, §
2L1.2(b)(1)(A) (Nov. 2013).
                                         2
