                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 13 2012

                                                                        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. 11-30108

              Plaintiff - Appellee,              D.C. No. 2:03-cr-00142-RHW-1

  v.
                                                 MEMORANDUM *
GINO GONZAGA RODRIQUEZ,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                      Argued and Submitted February 8, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Gino Rodriquez appeals the sentence imposed at a third sentencing for his

2004 jury conviction of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). See United States v. Rodriquez, 553 U.S. 377 (2008). When

the case was most recently before us, the government argued for the first time on



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeal that Rodriquez’s 1986 California conviction for being under the influence

of cocaine and heroin qualified as a prior drug offense within the meaning of the

Washington State recidivist statute. The government said that Rodriquez’s

criminal record, therefore, subjected him to the fifteen-year minimum sentence

under the federal Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e). We

remanded for the district court to consider this argument in the first instance.

United States v. Rodriquez, 376 F. App’x 748 (9th Cir. 2010).

      Rodriquez now appeals from the district court’s ruling that his 1986

conviction falls under Washington’s recidivist statute and, therefore, all of his three

1995 Washington convictions for delivering a controlled substance were “serious

drug offenses” under ACCA. The district court sentenced Rodriquez to the fifteen-

year minimum required by that statute. See 18 U.S.C. § 924(e).

      The district court did not err. On its face, Washington’s recidivist statute

applies whenever the defendant has a prior conviction “under any statute of the

United States or of any state relating to narcotic drugs . . . .” Wash. Rev. Code

§ 69.50.408. Rodriquez primarily argues that his 1986 California conviction

should not count because it was only a misdemeanor involving conduct that would

not be criminal in Washington. Even if this is true, however, the California

conviction “relate[s] to narcotic drugs” and is included by the plain language of


                                           2
Washington’s recidivist statute. See id. Because of the prior California conviction,

each of Rodriquez’s three 1995 Washington convictions was subject to a maximum

term of imprisonment of ten years. See Wash. Rev. Code §§ 69.50.401, 69.50.408,

9A.20.021(1)(c). This means that they were “serious drug crimes” under ACCA

and triggered the fifteen-year minimum. 18 U.S.C. § 924(e).

      AFFIRMED.




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