                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 23 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SANTIAGO ROBLES-GAYTAN,                          No. 10-71994

              Petitioner,                        Agency No. A091-994-171

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

              Respondent.



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

                            Submitted August 9, 2011 **
                             San Francisco, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and BEA, Circuit Judges.

       Santiago Robles-Gaytan, a native and citizen of Mexico, petitions for review

of an order by the Board of Immigration Appeals (“BIA”) summarily affirming an

order of removal by the Immigration Judge (“IJ”). The IJ found him removable for




        *
             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).
having been convicted of possession of a controlled substance, methamphetamine,

for purposes of sale in violation of California Health & Safety Code § 11378. See

8 U.S.C. § 1227(a)(2)(B)(i); 21 U.S.C. § 802.

       We review de novo the legal question whether Robles-Gaytan was convicted

of possession of a controlled substance. Kwong v. Holder, 671 F.3d 872, 876 (9th

Cir. 2011).

       The minute order and information together show that Robles-Gaytan pleaded

nolo contendere to possessing methamphetamine, a controlled substance covered

by 21 U.S.C. § 802, for the following reasons. First, the minute order reflects that

he pleaded nolo contendere to count one of the information, for violating

California Health & Safety Code § 11378 and Penal Code § 1203.073(b)(2), the

latter of which specifically addresses possession of methamphetamine. Second,

count one of the information specifies that the drug involved was

methamphetamine. Finally, the minute order shows that Robles-Gaytan stipulated

to the factual basis for his plea.

        Robles-Gaytan contends that because he pleaded nolo contendere instead of

guilty, his conviction cannot be used to find him removable. But California Penal

Code § 1016(3) provides, “The legal effect of [a nolo contendere] plea, to a crime

punishable as a felony, shall be the same as that of a plea of guilty for all


                                            2
purposes.” A plea of nolo contendere “is the functional equivalent of a guilty

plea.” People v. Whitfield, 46 Cal. App. 4th 947, 959 (1996); see also United

States v. Anderson, 625 F.3d 1219, 1220 (9th Cir. 2010) (per curiam). Robles-

Gaytan does not contest that the crime to which he pleaded nolo contendere is

punishable as a felony.

         Robles-Gaytan also contends that there is some confusion between

California Penal Code § 1203.073(b)(1) and (b)(2), and that this confusion shows

that the government has not established that Robles-Gaytan pleaded to a

methamphetamine offense. The record is clear, however, that he did plead nolo

contendere to such an offense.

         As to all the other issues he raises, we deny the petition for the reasons

stated in our opinion in Cabantac v. Holder, Nos. 09-71336 and 12-71459, issued

today.

         PETITION DENIED.




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