IMG-125 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 05-2536 and 05-3062
___________
WAYNE WRIGHT,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A43 401 505)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges.
(Filed: April 16, 2010)
___________
OPINION
___________
PER CURIAM
Wayne Wright, a citizen of Jamaica, petitions for review of an order of the Board
of Immigration Appeals (“BIA”). We will grant the petition and remand for further
proceedings because, as the Government concedes, the BIA erred when it relied on a
police officer’s “affidavit of probable cause” to conclude that Wright had been convicted
of an aggravated felony.
Wright was admitted to the United States as a lawful permanent resident in
September 1992. Thereafter, he was convicted of two crimes in New York state courts.
In 1999, he was convicted of third-degree criminal possession of marijuana. See N.Y.
Penal Law 221.20. In 2000, he pleaded guilty to fourth-degree criminal sale of
marijuana. See N.Y. Penal Law § 221.40.
In October 2002, Wright was charged with removability for having been convicted
of an aggravated felony as defined in Immigration and Nationality Act § 101(a)(43)(B) [8
U.S.C. § 1101(a)(43)(B)] (illicit trafficking in controlled substance), see INA
§ 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and for having been convicted of a
controlled substance offense, see INA § 237(a)(2)(B)(i) [8 U.S.C. § 1227(a)(2)(B)(i)].
The Immigration Judge (“IJ”) concluded that Wright was removable because his
convictions related to a controlled substance, but granted his application for cancellation
of removal, finding, inter alia, that neither of his convictions constituted aggravated
felonies. See INA § 240A(a) [8 U.S.C. § 1229b(a)] (“The Attorney General may cancel
removal . . . if the alien . . . has not been convicted of any aggravated felony.”).
Ultimately, however, the Board of Immigration Appeals (“BIA”) sustained the
Government’s appeal, determining that Wright’s conviction under § 221.40 constituted an
aggravated felony because it was punishable as a felony under the federal Controlled
2
Substances Act (“CSA”). See Gerbier v. Holmes, 280 F.3d 297, 306 (3d Cir. 2002). In
making this determination the Board looked to what it described as “an affidavit of
probable cause – the accusatory instrument prepared by the arresting officer in connection
with the filing of a criminal complaint.” In that document, the officer stated that he
observed an individual “hand defendant (Wright) a sum of United States currency and in
exchange defendant (Wright) did then hand [the individual] a quantity of marijuana.”
Such an offense, the BIA concluded, would be punishable under 21 U.S.C. §§ 841(a)(1)
& (b)(1)(D), which make it a felony to knowingly or intentionally “manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance.” 1 Consequently, the Board ordered Wright’s removal.
We have jurisdiction over Wright’s petition for review pursuant to INA
§ 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)]. See Garcia v. Att’y Gen., 462 F.3d 287,
290-91 (3d Cir. 2006). We exercise plenary review over Wright’s legal argument that he
1
In October 2006, the Government moved to stay the briefing schedule pending the
United States Supreme Court’s decision in Lopez v. Gonzales, 547 U.S. 1054 (2006)
(order granting certiorari). After Lopez was decided, 549 U.S. 47 (2006), the
Government filed a motion to remand, arguing that Lopez “provides an authoritative
interpretation of when a state drug offense can constitute an aggravated felony that the
Board did not have the benefit of when it made its decision.” Wright opposes the motion,
asserting that “the issue decided in Lopez is neither before the BIA nor before this
Court.” The Court in Lopez held that a state felony conviction for a drug offense that is
treated as a misdemeanor under the federal CSA does not constitute an “aggravated
felony” under the INA. Id. at 59. Notably, Lopez did not alter Gerbier, under which the
BIA found that Wright’s state misdemeanor conviction constituted an aggravated felony
because it would be punishable as a federal felony. Because Lopez would not alter the
BIA’s decision in this case, we will deny the government’s motion to remand.
3
was not convicted of an aggravated felony. See Ng v. Att’y Gen., 436 F.3d 392, 395 (3d
Cir. 2006).
“We apply two independent tests for determining whether a state drug offense
constitutes an aggravated felony: the ‘illicit trafficking element’ route and the
‘hypothetical federal felony’ route.” Evanson v. Att’y Gen., 550 F.3d 284, 288-89 (3d
Cir. 2008). Under the “illicit trafficking in any controlled substance” route, the drug
offense must (1) be a felony under the state law and (2) contain a “‘trafficking element’--
i.e., it must involve ‘the unlawful trading or dealing of a controlled substance.’” 2 Gerbier,
280 F.3d at 305. The “hypothetical felony route” requires that the offense, however
characterized by the state, be punishable as a felony under the CSA. Id. at 306. Thus, we
must compare the elements of the state drug offense to the elements of a federal drug
provision referenced in 18 U.S.C. § 924(c)(2). See Steele v. Blackman, 236 F.3d 130,
136 (3d Cir. 2001) (citing Davis, 20 I. & N. Dec. at 544).
Under the CSA, it is a felony to knowingly or intentionally “manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” less
than 50 kilograms of marijuana. See 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(D). But
2
Neither of Wright’s convictions constitute an aggravated felony under the “illicit
trafficking” route. The § 221.40 conviction is a state misdemeanor, see N.Y Penal Law
221.40 (“Criminal sale of marihuana in the fourth degree is a class A misdemeanor”), and
the criminal possession conviction under § 221.20 does not contain a trafficking element
because it does not “involve ‘the unlawful trading or dealing of a controlled substance.’”
See Gerbier, 280 F.3d at 305 (quoting Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA
1992)).
4
“distributing a small amount of marijuana for no remuneration” is treated as simple
possession, and is punishable as a federal misdemeanor.3 See 21 U.S.C. § 841(b)(4). “A
state marijuana conviction is therefore only equivalent to a federal drug felony if the
offense involved payment or more than a small amount of marijuana.” Evanson, 550 F.3d
at 289.
In evaluating whether an alien’s conviction constitutes an aggravated felony, we
presumptively apply a “formal categorical approach,” which precludes us from reviewing
the factual basis for the underlying conviction. See Singh v. Ashcroft, 383 F.3d 144,
147-48 (3d Cir. 2004); see also Taylor v. United States, 495 U.S. 575, 600-02 (1990).
There are, however, exceptions to this approach that permit a court to look beyond the
face of the statute. See Singh, 383 F.3d at 162-63; see also Garcia v. Att’y Gen., 462
F.3d 287, 291-92 (3d Cir. 2006). For instance, a federal statute that enumerates particular
categories of offenses that constitute aggravated felonies may invite inquiry into the facts
underlying the conviction. See, e.g., Nijhawan v. Holder, 129 S. Ct. 2294, 2300 (2009)
3
Under 21 U.S.C. § 844(a), a defendant’s possible sentence may be enhanced to
two years if he “commits such offense after a . . . prior conviction for any drug, narcotic,
or chemical offense chargeable under the law of any State, has become final.” It appears
that Wright committed his § 221.40 offense after his conviction under § 221.20 had
become final. We have held, however, that a prior conviction cannot be used to enhance
a sentence for purposes of determining whether an alien has been convicted of an
“aggravated felony” when his prior conviction was never litigated as part of the criminal
proceeding in the crime for which the alien is being removed. See Steele, 236 F.3d 130,
137-38 (3d Cir. 2001); cf. Shepard v. U.S., 544 U.S. 13, 25-26 (2005) (suggesting that
there are good constitutional reasons for requiring that the prior conviction must have
been charged as an element in the new “enhanced” offense).
5
(holding that INA § 101(a)(43)(M)(i), which refers to “an offense that . . . involves fraud
or deceit in which the loss to the victim or victims exceeds $10,000” “calls for a
‘circumstance-specific,’ not a ‘categorical,’ interpretation.”). But the enumerating
subsection at issue in this case, § 101(a)(43)(B), uses “language that must refer to [a]
generic crime[],” and therefore does not call for a “circumstance specific” interpretation.
Id.
Departure from the formal categorical approach also may be warranted where the
statute of conviction contains disjunctive elements, some of which are sufficient for
conviction of the federal offense and others which are not. See Singh, 383 F.3d at
162-63. Under such circumstances, we apply a “modified categorical approach” to
determine which of the alternative elements was the actual basis for the underlying
conviction. See Jean-Louis v. Att’y Gen., 582 F.3d 462, 466 (3d Cir. 2009); see also
Shepard, 544 U.S. at 19-20. This “modified categorical approach,” when applied to cases
resolved by guilty pleas, permits courts to consider the “statutory definition, charging
document, written plea agreement, transcript of the plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16,
20-23.
Wright pleaded guilty to violating N.Y Penal Law § 221.40, which provides that
“[a] person is guilty of criminal sale of [marijuana] in the fourth degree when he
knowingly and unlawfully sells [marijuana] . . . .” Importantly, although § 221.40 applies
6
to the “sale” of marijuana, the definition of “sale” encompasses “any form of transfer of a
controlled substance,” whether or not the transfer was for money. See N.Y. Penal Law
220.00; People v. Starling, 650 N.E.2d 387, 390 (N.Y. 1995); Steele, 236 F.3d at 131
(noting that “one may be convicted of ‘criminal sale’ [under § 221.40] without evidence
of a sale as commonly understood.”). Therefore, Wright’s conviction under § 221.40
could have been for a nonremunerative transfer of a small quantity of marijuana. See
Martinez v. Mukasey, 551 F.3d 113, 119 n.6, 120 (2d Cir. 2008) (stating that “while
section 221.40 may cover any quantity over two grams, it arguably covers only quantities
below 25 grams, with any larger quantity falling into” another section of the statute).
Because such an offense would be only a federal misdemeanor under 21 U.S.C.
§ 841(b)(4), Wright’s conviction does not constitute an aggravated felony under the
formal categorical approach. See Martinez, 551 F.3d at 120.
The BIA applied the “modified categorical approach” in this case and concluded
that Wright’s offense qualified as an aggravated felony. The scope of an alien’s guilty
plea can be ascertained by examining, inter alia, the “charging document.” Shepard, 544
U.S. at 20-23; Garcia, 462 F.3d at 293. Importantly, however, it is impermissible to look
to police reports or complaint applications to determine whether a guilty plea “conviction
was ‘necessarily’ for a particular crime defined by the [state] statute that meets the
aggravated felony criterion.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006).
In this case, the BIA relied on a two-page state court document in which the arresting
7
officer attests that he observed Wright receiving money in exchange for marijuana.
Under those facts, Wright’s conviction would be considered an aggravated felony. It is
not clear, though, that the officer’s affidavit is the instrument by which Wright was
charged, or if it is merely an affidavit offered to the state court in support of charges
against him. Notably, even if the affidavit was the charging document, it was not
referenced in the state court “sentence and commitment” order, which states only that
Wright was “convicted of a crime of 221.40.” See Evanson, 550 F.3d at 293 (stating that
“a court applying the modified categorical approach may only consider the charging
document to the extent that the petitioner was actually convicted of the charges.”). We
conclude, therefore, that the state court documents are insufficient to establish the facts to
which Wright actually pleaded guilty. Consequently, the BIA erred when it considered
the officer’s affidavit to determine whether Wright had been convicted of an aggravated
felony. See Shepard, 544 U.S. at 20-21; Taylor, 495 U.S. at 600-02.
For the foregoing reasons, we will grant the petition and remand for further
proceedings consistent with this opinion. The Government’s motion to remand is denied.
See footnote 1, supra.
8