Julce v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-2362

JULVIO JULCE,

Petitioner,

v.

MICHAEL MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Eduardo Masferrer and Masferrer & Associates, P.C. on brief
for petitioner.
Russell J.E. Verby, Senior Litigation Counsel, Jeffrey S.
Bucholtz, Acting Assistant Attorney General, and Barry J.
Pettinato, Assistant Director, Office of Immigration Litigation,
U.S. Department of Justice, on brief for respondent.

June 20, 2008
 LYNCH, Chief Judge. Julvio Julce, a native and citizen

of Haiti, petitions for review of a decision by the Board of

Immigration Appeals ("BIA") denying his application for

cancellation of removal. The BIA concluded he was not eligible for

this relief from removal because he had been convicted of an

aggravated felony.

The petitioner raises a new question for this court

involving the interplay between the immigration law's definition of

aggravated felons, who are ineligible for cancellation of removal,

and the federal criminal statutory exception in 21 U.S.C.

§ 841(b)(4) for reducing certain felony marijuana offenses from

felonies to misdemeanor status.

We deny the petition. Our resolution of this issue is

different from that of the only other circuit which, to our

knowledge, has addressed the issue under the immigration law. See

Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003). But our

resolution is more consistent with the approach taken by every

circuit which has addressed a related issue under the federal

criminal law, to which the immigration law looks.

I.

Julce entered the United States as a lawful permanent

resident on August 23, 1993. On May 14, 2003, Julce pled guilty to

one count of possession with intent to distribute a Class D

substance (in his case, marijuana) under Massachusetts law. See

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Mass. Gen. Laws ch. 94C, § 32C(a). He also pled guilty to a count

of possession of this marijuana in a school zone.1 Julce received

a two-year sentence for his convictions.

The Immigration and Naturalization Service initiated

removal proceedings against Julce on May 25, 2004. The agency

charged Julce as removable both because he had been convicted of an

"aggravated felony," see 8 U.S.C. § 1227(a)(2)(A)(iii), and because

he had been convicted of violating a law "relating to a controlled

substance," see id. § 1227(a)(2)(B)(i). The agency based both

charges on Julce's conviction under Mass. Gen. Laws ch. 94C,

§ 32C(a) for possession with intent to distribute marijuana.2

Julce conceded his removability under the "controlled

substances" charge. He nevertheless argued that he was eligible

for the discretionary relief of cancellation of removal. See 8

U.S.C. § 1229b(a). Aliens who have been convicted of an aggravated

felony are not eligible for this relief, id. § 1229b(a)(3), but

Julce argued that the state-law conviction did not qualify as an

"aggravated felony" as defined in the Immigration and Nationality

Act ("INA").

1
Julce withdrew his original pleas, but re-entered guilty
pleas to the same offenses on August 12, 2004.
2
On April 15, 2004, Julce was again convicted in
Massachusetts for possession of marijuana with intent to distribute
and possession in a school zone, this time by jury verdict. That
conviction was pending appeal during the agency proceedings.

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 An Immigration Judge ("IJ") issued an oral decision on

January 30, 2007. The IJ relied on Berhe v. Gonzales, 464 F.3d 74,

84-85 (1st Cir. 2006), which held that a conviction under Mass.

Gen. Laws ch. 94C, § 32C(a) qualifies as an "aggravated felony" for

purposes of the INA. The IJ pretermitted Julce's application for

cancellation of removal and ordered him deported to Haiti.

The BIA affirmed on August 2, 2007. The only issue

before the BIA was Julce's eligibility for cancellation of removal.

Citing the Supreme Court's decision in Lopez v. Gonzales, 127 S.

Ct. 625, 630-31 (2006), the BIA concluded that Julce's conviction

under the Massachusetts statute qualified as an "aggravated felony"

because the federal Controlled Substances Act ("CSA") treats

possession of marijuana with intent to distribute as a felony.

Julce timely petitioned for review of the BIA's decision.

II.

Julce's petition raises a single legal issue: whether the

BIA erred in denying him eligibility for cancellation of removal by

treating a conviction under Mass. Gen. Laws ch. 94C, § 32C(a) as an

"aggravated felony" conviction for purposes of the INA. Because

this petition presents only a pure question of law, we review the

issue de novo. Berhe, 464 F.3d at 80; Conteh v. Gonzales, 461 F.3d

45, 52 (1st Cir. 2006).3 Indeed, our review here is restricted

3
We ordinarily defer to the BIA's reasonable
interpretations of silent or ambiguous provisions of the
immigration statutes. However, this court has noted that because

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under the REAL ID Act to the purely legal issues presented. See 8

U.S.C. § 1252(a)(2)(C)-(D).

"An aggravated felony on a criminal record has worse

collateral effects than a felony conviction simple." Lopez, 127 S.

Ct. at 628. These collateral effects are significant in the

immigration context, because a conviction of an aggravated felony

can render a resident alien deportable, 8 U.S.C.

§ 1227(a)(2)(A)(iii), ineligible for asylum, id.

§ 1158(b)(2)(A)(ii), (B)(i), and place him outside of the

discretion of the Attorney General to cancel removal, id.

§ 1229b(a)(3).

The INA defines an "aggravated felony" in part as

"illicit trafficking in a controlled substance . . . including a

drug trafficking crime." Id. § 1101(a)(43)(B). Importantly, the

term "drug trafficking crime" includes offenses punishable as

felonies under the federal CSA. Id.; 18 U.S.C. § 924(c)(2).

Because Julce was convicted under state rather than

federal law, this court applies the "hypothetical federal felony"

approach and asks "whether the underlying offense would have been

punishable as a felony under federal law." Berhe, 464 F.3d at 84;

accord Lopez, 127 S. Ct. at 633.

the BIA resolves "aggravated felony" cases by applying the law of
the circuit in which the case arises, we apply de novo review.
Conteh, 461 F.3d at 52 n.3. Whether under de novo or deferential
review, we would reach the same result.

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 The Massachusetts statute under which Julce pled guilty

to possession with intent to distribute punishes "[a]ny person who

knowingly or intentionally manufactures, distributes, dispenses or

cultivates, or possesses with intent to manufacture, distribute,

dispense or cultivate [marijuana]." Mass. Gen. Laws ch. 94C,

§ 32C(a). An analogous provision in the federal CSA forbids "any

person knowingly or intentionally . . . to manufacture, distribute,

or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance." 21 U.S.C. § 841(a)(1). When

less than fifty kilograms of marijuana is involved, the CSA

authorizes up to five years' imprisonment for a violation. See id.

§ 841(b)(1)(D). A federal offense that carries such a potential

punishment qualifies as a federal felony. See 18 U.S.C. § 3559(a).

Based on the congruence between these state and federal offenses,

we concluded in Berhe that a Massachusetts conviction for

possession with intent to distribute marijuana is punishable as a

felony under federal law, and so it is an aggravated felony for

purposes of the INA. 464 F.3d at 84-85.

In an innovative argument not addressed by this court in

Berhe, Julce says all is not lost for his position because the

state marijuana statute encompasses conduct that would not be

punishable as a felony under the CSA, but would instead be treated

as a misdemeanor under the CSA. Julce relies on a provision in the

CSA, contained within the section that describes the felony offense

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of possession with intent to distribute marijuana, 21 U.S.C.

§ 841(b), that punishes distribution of "a small amount of

marihuana for no remuneration" as a misdemeanor. See 21 U.S.C.

§§ 841(b)(4), 844.4

It is the nature of this subsection and who bears the

burden of proof which are called into question. As the narrow

statutory language suggests, Congress intended for this sentencing

carve-out to apply to defendants guilty of no more than social

sharing of marijuana. See United States v. Outen, 286 F.3d 622,

637-38 (2d Cir. 2002) (noting that § 841(b)(4) properly applies to

"the person who is only using the drug with his friends" (quoting

Cong. Rec. 35,555 (Oct. 7, 1970) (statement of Sen. Hughes))

(internal quotation marks omitted)). Julce argues from the fact

that Mass. Gen. Laws ch. 94C, § 32C(a) does not require proof of

remuneration or of any specific amount of marijuana. He argues

that a conviction under the state statute is not necessarily

equivalent to a conviction under the federal § 841 felony

provisions; after all, the conduct might fit into the misdemeanor

4
The relevant provision reads,

Notwithstanding [21 U.S.C. § 841(b)(1)(D)], any person
who violates [21 U.S.C. § 841(a)] of this section by
distributing a small amount of marihuana for no
remuneration shall be treated as provided in section 844
of this title and section 3607 of Title 18.

21 U.S.C. § 841(b)(4). Section 844 authorizes imprisonment of up
to one year for a first conviction for simple possession of a
controlled substance. Section 3607 is not relevant here.

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exception. Therefore, he argues, the conviction does not

categorically qualify as an aggravated felony under the INA.

When a state offense correlates with a federal crime that

the INA treats as an aggravated felony but the state statute is

written broadly enough to cover at least some non-felonious

conduct, the government can show that a conviction under the state

statute nonetheless qualifies as an aggravated felony where facts

in the record of conviction provide clear and convincing evidence

that the alien's offense "constitutes a crime designated as an

aggravated felony in the INA." Conteh, 461 F.3d at 55-56. Julce

argues that the government failed to put forth enough facts from

the record of conviction to prove that his conviction involved more

than a "small amount" of marijuana and that he intended to

distribute it for remuneration.5 Julce's argument is that because

there is at least the theoretical possibility that he pled guilty

to conduct that would fall within the scope of § 841(b)(4), and the

5
The charging documents in the underlying criminal
proceedings did not indicate an amount of marijuana or whether
Julce received payment. Neither does the administrative record
indicate whether Julce admitted to any specific facts in a plea
agreement or plea colloquy. During the proceedings before the IJ,
the government introduced a police report indicating that Julce was
found with multiple bags of marijuana, spare plastic bags, multiple
cell phones, and a sum of cash at the time of his arrest. A police
report would not seem to qualify as a part of the "record of
conviction," Conteh, 461 F.3d at 56, from which the government
could derive facts in support of an aggravated felony charge.
Because neither party to this petition argued whether the BIA could
legitimately consider facts from the police report, and because our
decision does not turn on those specific facts, we leave the issue
for another case.

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government's evidence did not exclude this possibility, his

conviction under Mass. Gen. Laws ch. 94C, § 32C(a) cannot be

considered an aggravated felony.

Julce's argument fails because it mistakes the nature of

§ 841(b)(4), the federal misdemeanor sentencing exception. That

section does not create a stand-alone misdemeanor offense. Rather,

it is best understood as a mitigating sentencing provision. See

United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir. 2008).

When the issue of interpretation of § 841(b)(4) arises in

the federal criminal context, every court that has considered the

question has held that § 841(b)(1)(D), not § 841(b)(4), sets forth

the statutory maximum. See, e.g., United States v. Hamlin, 319

F.3d 666, 668 (4th Cir. 2003) ("[S]ection 841(b)(1)(D) provides the

applicable statutory maximum sentence for offenses involving an

indeterminate amount of marijuana."); United States v. Walker, 302

F.3d 322, 324 (5th Cir. 2002); Outen, 286 F.3d at 625-26 ("[T]he

'default' provision for marijuana is the five-year term of

§ 841(b)(1)(D)."); accord Eddy, 523 F.3d at 1271.

The statutory maximum here is the five years set forth by

§ 841(b)(1)(D), and under the law construing § 841(b)(4), the

defendant bears the burden of producing mitigating evidence in

order to obtain misdemeanor treatment under § 841(b)(4). See,

e.g., Hamlin, 319 F.3d at 671 ("[T]he possibility that the

defendant can 'escape the statutory maximum' by showing that he

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distributed a 'small amount of marijuana for no remuneration' does

not affect the five-year statutory maximum set by

§ 841(b)(1)(D)."); Outen, 286 F.3d at 638-39 (government need not

prove the absence of mitigating facts under § 841(b)(4)). We agree

with those courts on both the default and on the placement of the

burden under § 841(b)(4). Thus, in the absence of defendant

meeting his burden to show his conduct fits within § 841(b)(4),

possession of any amount of marijuana up to fifty kilograms with

intent to distribute it is punishable as a felony under the CSA.

To put it differently, the same elements required under

Massachusetts law to establish the offense of possession with

intent to distribute marijuana, see Mass. Gen. Laws ch. 94C,

§ 32C(a), if proven in a federal prosecution under § 841, would

establish a felony offense. Consistent with Berhe, a conviction

for possession with intent to distribute under Mass. Gen. Laws ch.

94C, § 32C(a) qualifies as an aggravated felony for purposes of the

INA.6 Under federal criminal law, it is the defendant's burden to

6
The Third Circuit has reached a different conclusion in
the context of other state statutes that do not require proof of
remuneration as an element of possession with intent to distribute.
See Wilson, 350 F.3d at 381; Steele v. Blackman, 236 F.3d 130, 137
(3d Cir. 2001). The Third Circuit reasoned that because of
§ 841(b)(4), the distribution of a small amount of marijuana
"without remuneration is not inherently a felony under federal
law." Steele, 236 F.3d at 137. This conclusion, in our view, does
not take appropriate account of the role that § 841(b)(4) plays as
an exception to the sentencing scheme under § 841(b)(1)(D).

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show the offense should be reduced to a misdemeanor under § 841(b)(4).

We see no reason to adopt a different rule for purposes

of defining an "aggravated felony" under immigration law and do see

reasons not to do so. It would be both anomalous and create a

disparity in the law's use of the analogy to federal criminal

statutes if we were to shift the burden to the government in an

immigration case to show that § 841(b)(4) does not apply when there

is the requisite state drug conviction. Here, Julce did not even

attempt to meet the burden, which is his to bear, that his conduct

of conviction fell within § 841(b)(4).

The BIA assumed that an alien could meet that burden in

some cases, but did not explain how that would be done under

§ 841(b)(4), as Julce made no effort to do so. Perhaps the record

of conviction in state court would contain facts permitting the

alien to make such an argument. We note that an alien, not

considering the immigration context, may have had no incentive to

produce such evidence in the state court proceeding. Whether the

alien would be permitted to introduce other evidence outside of the

record of conviction before the IJ is an issue the BIA may wish to

address.

The petition is denied.

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