FILED
NOT FOR PUBLICATION SEP 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALONSO RAMIREZ-CHAVEZ, No. 11-72297
Petitioner, Agency No. A039-812-513
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of
The Board of Immigration Appeals
Argued and Submitted September 11, 2013
San Francisco, California
Before: ALARCÓN and BERZON, Circuit Judges, and ZOUHARY, District Judge.**
Petitioner Alonso Ramirez-Chavez, a native and citizen of Mexico, challenges
the Board of Immigration Appeals (“BIA”) decision finding him ineligible for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
cancellation of removal due to a prior aggravated felony conviction. Because his
record of conviction clearly and convincingly establishes he was convicted of an
aggravated felony, his petition must be denied. See 8 U.S.C. § 1229b(a)(3).
Petitioner pled guilty in 2005 to Count I of a Nevada criminal Information,
which charged him with “trafficking in a controlled substance,” in violation of NRS
§ 453.3385(3), for “sell[ing], manufactur[ing], deliver[ing], or be[ing] in actual or
constructive possession of 28 grams or more of . . . methamphetamine.” Count I
specified that Ramirez-Chavez “sold the methamphetamine” to a confidential
informant.
Methamphetamine is a controlled substance, see 21 U.S.C. § 801 et seq., and
trafficking in a controlled substance is an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B). However, a conviction under NRS § 453.3385 is not categorically
an aggravated felony because the full range of conduct it criminalizes, including mere
possession, is broader than the relevant federal statute, 8 U.S.C. § 1101(a)(43)(B). See
United States v. Villa-Lara, 451 F.3d 963, 965 (9th Cir. 2006). As is the case here,
“when a statute lists multiple, alternative elements, and so effectively creates ‘several
different . . . crimes,’” we use the modified categorical approach to “identify, from
among several alternatives, the crime of conviction so that the court can compare it
to the generic offense.” Descamps v. United States, __ U.S. ___, 133 S. Ct. 2276,
2285 (2013) (citation omitted). We are permitted to look only to “the charging
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instrument, transcript of the plea colloquy, plea agreement, and comparable judicial
record” to determine whether Ramirez-Chavez “necessarily admitted elements of the
generic offense.” Young v. Holder, 697 F.3d 976, 983 (9th Cir. 2012) (en banc)
(emphasis in original, quotation marks omitted) (citing Shepard v. United States, 544
U.S. 13, 26 (2005)).
Here, the Information, plea memorandum and colloquy, sentencing transcript,
and judgment of conviction together demonstrate Ramirez-Chavez pled guilty to
Count I of the Information, which accused him of selling methamphetamine rather
than simply possessing it. He therefore pled guilty to trafficking in a controlled
substance, an aggravated felony.
Petitioner argues that a later amended judgment from 2007, which reduced his
maximum sentence to 6 years imprisonment, casts doubt on whether he pled guilty to
selling or simply possessing methamphetamine. This argument is unpersuasive for
several reasons, among them that the amendment affects only the sentence, not the
judgment of conviction, and, in any event, the amended sentence would appear to
reflect only a change in attributed quantity of controlled substance, not the underlying
conduct. Compare NRS § 453.3385(3), with NRS § 453.3385(1).
For these reasons, the BIA properly found Ramirez-Chavez ineligible for
cancellation of removal.
DENIED.
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