United States of America v. Adrian Toledo-Martinez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ADRIAN TOLEDO-MARTINEZ,
Defendant - Appellant.
No. 14-50230
D.C. No. 3:13-cr-02616-BEN-1
MEMORANDUM*
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.
FILED
APR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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

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