                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 24 2010

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

EDGAR MOSQUERA GAMBOA,                           No. 09-55431

              Petitioner - Appellant,            D.C. No. 2:09-cv-00656-DSF-RC

  v.
                                                 MEMORANDUM*
JOSEPH NORWOOD, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted May 6, 2010
                              Pasadena, California

Before: B. FLETCHER and PAEZ, Circuit Judges, and EZRA, District Judge.**

       Edgar Mosquera Gamboa appeals the district court’s dismissal of his habeas

corpus petition under 28 U.S.C. § 2241 for lack of jurisdiction. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      In 1993, a jury in the Southern District of Texas convicted Gamboa and his

co-defendants of various crimes related to their involvement in a cocaine

trafficking operation. Among the charges of which the jury found Gamboa guilty

was money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). In 2001,

Gamboa filed a habeas corpus petition under 28 U.S.C. § 2255 in the Southern

District of Texas, which was denied. On January 28, 2009, Gamboa filed the

instant habeas corpus petition under 28 U.S.C. § 2241 in the Central District of

California, the district in which Gamboa is serving his life sentence.

      We review de novo whether the district court had jurisdiction over

Gamboa’s 28 U.S.C. § 2241 petition. Stephens v. Herrera, 464 F.3d 895, 897 (9th

Cir. 2006). Jurisdiction over Gamboa’s petition is appropriate if he (1) makes a

claim of actual innocence and (2) shows he has not had an unobstructed procedural

shot at presenting that claim. Id. at 898. Gamboa argues that he is “actually and

factually innocent” of the money laundering charge because of a change in the law

under United States v. Santos, 553 U.S. 507, 128 S. Ct. 2020 (2008). He claims he

did not use the illegal profits from the cocaine operation for anything except

operating expenses and that, therefore, under Santos, the profits are not “proceeds.”




                                    Page 2 of 4
      The Santos case involved an interpretation of the federal money laundering

statute in the context of an illegal lottery. Santos, 128 S. Ct. at 2022-23. The

Court considered “whether the term ‘proceeds’ in the federal money-laundering

statute, 18 U.S.C. § 1956(a)(1), means ‘receipts’ or ‘profits.’” Id. at 2022. No

opinion in Santos, however, garnered a majority of votes. Id.

      We interpreted Santos in United States v. Van Alstyne, 584 F.3d 803 (9th

Cir. 2009), concluding that “[o]nly the desire to avoid a ‘merger problem’ united

the five justices who held that Santos’ payments to winners and runners did not

constitute money laundering.” Van Alstyne, 584 F.3d at 814. Thus, “the holding

that commanded five votes in Santos [was] that ‘proceeds’ means ‘profits’ where

viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that

troubled the plurality and concurrence in Santos.” Id.

      Our interpretation of Santos in Van Alstyne precludes Gamboa’s argument of

factual innocence. Gamboa was convicted of conspiracy to possess with intent to

distribute cocaine and aiding and abetting possession with intent to distribute

cocaine along with the money laundering conviction. These crimes do not merge

and thus the narrow definition of “proceeds” as “profits” does not apply. See

United States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010) (“[T]he predicate offense

of conspiracy to distribute cocaine does not fall within the category of offenses for


                                     Page 3 of 4
which ‘proceeds’ means ‘profits.’”); see also Santos, 128 S. Ct. at 2032 (Stevens,

J., concurring) (“[T]he legislative history of § 1956 makes it clear that Congress

intended the term ‘proceeds’ to include gross revenues from the sale of

contraband.”).

      Because Gamboa cannot make a claim of actual innocence, the district court

correctly dismissed the petition for lack of jurisdiction. See Harrison v. Ollison,

519 F.3d 952, 961 (9th Cir. 2008).

      AFFIRMED.




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