FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VENTURA LOPEZ-JACUINDE, a.k.a.
Ventura Jacuinde Lopez,
No. 07-72046
Petitioner,
v. Agency No.
A041-118-057
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2010*
San Francisco, California
Filed April 12, 2010
Before: Betty B. Fletcher, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge B. Fletcher
*The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. Proc. 34(a)(2).
5441
LOPEZ-JACUINDE v. HOLDER 5443
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner.
Ari Nazarov, U.S. Department of Justice, Civil Division,
Washington, D.C., for the respondent.
5444 LOPEZ-JACUINDE v. HOLDER
OPINION
B. FLETCHER, Circuit Judge:
Petitioner Ventura Lopez-Jacuinde seeks review of a deci-
sion by the Board of Immigration Appeals (“BIA”) that held
that his state felony conviction for possession of pseudoephe-
drine with intent to manufacture methamphetamine was a
“drug trafficking crime” which constitutes an “aggravated fel-
ony” under federal law, rendering him statutorily ineligible
for cancellation of removal. Lopez-Jacuinde argues that “drug
trafficking crime,” as defined by the relevant federal statute,
requires the use of a firearm and thus the state criminal stat-
ute, which has no such element, is broader than the federal
statute. He argues further that the state criminal statute is
broader than the corresponding federal crime because the fed-
eral crime imposes a requirement, not found in the state stat-
ute, as to the minimum amount of pseudoephedrine possessed
by the defendant. We disagree and deny the petition for
review.
I. Facts and Procedural History
On February 10, 2005, Lopez-Jacuinde, a citizen of Mex-
ico, was convicted of the offense of possession of pseu-
doephedrine with intent to manufacture methamphetamine or
any of its analogs in violation of California Health and Safety
Code § 11383(c)(1).1 He was served with a notice to appear
for removal proceedings that alleged he had committed an
aggravated felony.2 He filed an application for cancellation of
1
Section 11383 was amended after Lopez-Jacuinde’s conviction in
2005. Likewise, 21 U.S.C. §§ 802, 830(b)(3), also relevant to this appeal,
were amended during this period. Citations to these statutes are to the ver-
sions effective in 2005.
2
Conviction of an aggravated felony renders an alien removable and
ineligible for cancellation of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii);
8 U.S.C. § 1229b(a)(3).
LOPEZ-JACUINDE v. HOLDER 5445
removal and a motion to strike the aggravated felony charge.
The Immigration Judge (“IJ”) denied Lopez-Jacuinde’s
motion to strike and ordered him removed from the United
States. The BIA dismissed Lopez-Jacuinde’s petition for
review and agreed with the IJ that Lopez-Jacuinde had been
convicted of an aggravated felony. The BIA held that a “drug
trafficking crime” does not require the use of a firearm, and
that because Lopez-Jacuinde was convicted of possession of
pseudoephedrine with intent to manufacture methamphet-
amine, any federal requirement as to the amount of pseu-
doephedrine possessed was inapplicable.
II. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252 to review final
removal orders issued by the BIA. However, we lack jurisdic-
tion to review an order of removal against an alien removable
for having committed an aggravated felony. See 8 U.S.C.
§ 1252(a)(2)(C); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905,
909 (9th Cir. 2004). “Nonetheless, this Court retains jurisdic-
tion to determine its jurisdiction, which includes determining
whether a particular offense constitutes an offense governed
by the jurisdiction-stripping provisions.” Cazarez-Gutierrez,
382 F.3d at 909. We may thus review whether Lopez-
Jacuinde’s conviction constituted an aggravated felony. This
court reviews de novo the question of whether a particular
offense constitutes an aggravated felony for which an alien is
subject to removal. Id.
III. Discussion
[1] We determine whether a state law conviction is an
aggravated felony using either the categorical or modified cat-
egorical approach set forth in Taylor v. United States, 495
U.S. 575, 600-02 (1990) and Shepard v. United States, 544
U.S. 13, 20-21 (2005). Pelayo-Garcia v. Holder, 589 F.3d
1010, 1012 (9th Cir. 2009). “Under the categorical approach,
we compare the elements of the statute of conviction with a
5446 LOPEZ-JACUINDE v. HOLDER
federal definition of the crime to determine whether the con-
duct proscribed by the statute is broader than the generic fed-
eral definition.” Id. (quotation marks omitted).
A. Use of a Firearm Is Not Required for a State Con-
viction to Constitute an Aggravated Felony as a
“Drug Trafficking Crime”
[2] An “aggravated felony” includes “illicit trafficking in
a controlled substance (as defined in section 102 of the Con-
trolled Substances Act), including a drug trafficking crime (as
defined in section 924(c) of title 18, United States Code).” 8
U.S.C. § 1101(a)(43)(B). The Ninth Circuit has interpreted
this text as providing two analytic routes through which a
state drug felony may be classified as an aggravated felony:
(1) if the state crime contains a “trafficking element,” it is an
aggravated felony under the “illicit trafficking in a controlled
substance” prong of § 1101(a)(43)(B); or (2) if the state
offense would be punishable as a felony under federal drug
laws, it is an aggravated felony under the “including a drug
trafficking crime” prong of that section. See Rendon v.
Mukasey, 520 F.3d 967, 974 (9th Cir. 2008). It is this second
route, specifically the reference to 18 U.S.C. § 924(c) as con-
taining the definition of “drug trafficking crime,” that is at
issue in this appeal.
[3] “Drug trafficking crime” is expressly defined in 18
U.S.C. § 924(c)(2) as “any felony punishable under the Con-
trolled Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46.”3 18 U.S.C. § 924(c)(1), however, pro-
vides for an enhanced punishment for the use or possession of
a firearm in relation to a drug trafficking crime. Lopez-
Jacuinde maintains that despite the explicit definition of “drug
3
Lopez-Jacuinde’s state offense is punishable as a federal crime under
21 U.S.C. § 841(c), possession of a listed chemical with intent to manufac-
ture a controlled substance.
LOPEZ-JACUINDE v. HOLDER 5447
trafficking crime” in § 924(c)(2), the relevant definition of
“aggravated felony” found in 8 U.S.C. § 1101(a)(43)(B)
includes the firearm element of § 924(c)(1) in its reference to
the definition of “drug trafficking crime” in § 924(c). There-
fore, he argues, Congress must have intended that to consti-
tute an “aggravated felony” a “drug trafficking crime” must
also involve use or possession of a firearm.
[4] This argument is unpersuasive. The text of 8 U.S.C.
§ 1101(a)(43)(B) refers unambiguously to the definition of
drug trafficking crime found in § 924(c), despite containing a
reference to § 924(c) as a whole. Paragraph 924(c)(2) in turn
provides the definition of “drug trafficking crime” for all of
subsection (c), with no reference to a firearm element. This
definition is set off in a separate paragraph from § 924(c)(1),
which by its terms is only an enhanced punishment provision.
Thus, regardless of whether a defendant’s conduct involves
the use of a firearm, it is by reference to § 924(c)(2) that a
court will determine whether the conduct constitutes a drug
trafficking crime. In fact, because § 924(c)(1) itself applies to
drug trafficking crimes, a definition of “drug trafficking
crime” that required the use of a firearm would render that
paragraph strangely self-referential and confusingly circular.4
[5] We note that although § 1101(a)(43)(B) was amended
in 1994—and that prior to these amendments
§ 1101(a)(43)(B) referred with more precision to paragraph
(2) of § 924(c)—this does not change our conclusion. As
cogently explained by the Tenth Circuit in United States v.
Valenzuela-Escalante, 130 F.3d 944, 946-47 (10th Cir. 1997),
the amendment to § 1101(a)(43)(B) was not intended to
4
Along similar lines, we observe that § 924(c) paragraphs (3) and (4)
contain definitions of “crime of violence” and “brandish,” neither of
which can sensibly be incorporated into the definition of “drug trafficking
crime.” This reinforces our conclusion that the general reference to
§ 924(c) was not intended to distract our attention from the definition
found in paragraph (2)—a definition that applies by its own terms for all
of § 924(c).
5448 LOPEZ-JACUINDE v. HOLDER
restrict the crimes that constitute aggravated felonies. We are
further persuaded by the reasoning of Valenzuela-Escalante,
which held that a drug trafficking crime need not involve the
use of a firearm to constitute an aggravated felony. See id. We
hold that the use of a firearm is not a necessary element of a
“drug trafficking crime” for the purpose of determining
whether an alien has been convicted of an “aggravated felo-
ny.”
B. The Federal Crime Corresponding to § 11383(c)(1)
Does Not Require Possession of a Minimum
Amount of Pseudoephedrine
[6] Lopez-Jacuinde also contends that his conviction for
violating California Health and Safety Code § 11383(c)(1) is
not a categorical aggravated felony because the state statute
proscribes possession of any amount of pseudoephedrine with
intent to manufacture methamphetamine, and the correspond-
ing federal crime requires proof that the defendant possessed
more than a certain amount of pseudoephedrine. This argu-
ment is without merit because the federal offense correspond-
ing to Lopez-Jacuinde’s state conviction has no such
requirement as to amount.
[7] Lopez-Jacuinde’s argument relies on an attempt to
incorporate federal regulatory provisions requiring that retail
distributors keep records of high-quantity pseudoephedrine
transactions into separate federal provisions criminalizing
possession of pseudoephedrine with intent to manufacture
methamphetamine. Our opinion in United States v. Kim, 449
F.3d 933, 937-38 (9th Cir. 2006), describes the federal
scheme in some detail. As Kim explains, the “upshot [of the
record-keeping provisions] is that over-the-counter sales of
pseudoephedrine had to be recorded if the items purchased
totaled [nine] grams or more and (1) were not in blister packs
or (2) were in packages of more than three grams per package.”5
5
The threshold for triggering the reporting requirements was lowered in
the year 2000 from twenty-four grams to nine grams.
LOPEZ-JACUINDE v. HOLDER 5449
Id. at 938. In contrast to the record-keeping scheme, 21
U.S.C. § 841(c)(1) independently criminalizes possession of a
listed chemical with intent to manufacture a controlled sub-
stance. Lopez-Jacuinde contends that the court must read the
quantity requirements in the record-keeping provisions appli-
cable to retail distributors into elements of the crime of pos-
session with unlawful intent.
[8] We have already rejected this argument in a similar
context. See id. at 938-41. The defendant in Kim argued that
the quantity requirements in the record-keeping scheme
should apply to federal criminal provisions punishing the sale
of pseudoephedrine by a person knowing or having reason-
able cause to believe it would be used to manufacture a con-
trolled substance. See id. at 939. We held that the thresholds
as to amount set by the record-keeping requirements were not
relevant to the criminal provisions. See id. at 939-40. The
same reasoning is controlling here.
IV. Conclusion
[9] We find no error in the BIA’s determination that
Lopez-Jacuinde was convicted of an aggravated felony.
Because the BIA correctly applied the relevant statutes, there
was no due process violation.
PETITION DENIED.