Santiago Robles-Gaytan v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTIAGO ROBLES-GAYTAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71994
Agency No. A091-994-171
MEMORANDUM*
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
FILED
AUG 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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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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