Roberto Garcia v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 07 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROBERTO JESUS GARCIA, No. 08-72351

Petitioner, BIA No. A092-451-179

v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submission Withdrawn November 12, 2009
Argued August 10, 2010
Resubmitted March 7, 2011
San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

Roberto Jesus Garcia, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order affirming the decision of the

immigration judge (“IJ”) finding him removable as an alien convicted of an

aggravated felony. We have jurisdiction under 8 U.S.C. § 1252. We review de

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
novo whether Garcia has been convicted of a removable offense. See Sandoval-

Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir. 2007).

The BIA found that Garcia had been convicted of possession of

methamphetamine with intent to sell, in violation of section 11378 of the

California Health and Safety Code. This finding relied on two documents, a

charging Information and an abstract of judgment. The Information alleged that

Garcia “did unlawfully possess for purposes of sale a controlled substance, to wit,

methamphetamine,” in violation of California Health & Safety Code section

11378. The abstract states that Garcia pled guilty to “Possession for sale of a

controlled substance-to wit, Methamphetamine.”

A violation of section 11378 is not categorically an aggravated felony

because “California law regulates the possession and sale of many substances that

are not regulated by the [Controlled Substances Act].” Cheuk Fung S-Yong v.

Holder, 600 F.3d 1028, 1034 (9th Cir. 2010). As a result, the BIA had to apply the

modified categorical approach and “look beyond the language of the statute to a

narrow, specified set of documents that are part of the record of conviction” to

determine whether Garcia had been convicted of a removable offense. Tokatly v.

Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004). On the basis of the charging

Information and abstract of judgment, the BIA concluded that Garcia had been

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convicted of possession of methamphetamine, an aggravated felony. See 8 U.S.C.

§ 1101(a)(43)(B); 21 U.S.C. § 812(c), sched. III(a)(3). Accordingly, the BIA

ordered Garcia removed. 8 U.S.C. § 1227(a)(2)(A)(iii).

Petitioner argues that abstracts of judgment are unreliable and do not fall

into the “narrow, specified set of documents” that are reliable enough to be used in

the modified categorical approach, Tokatly, 371 F.3d at 620, and thus the

documents in the record do not support a finding that he was convicted of an

aggravated felony. Petitioner further argues that the en banc decision in United

States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), cert. denied, 130

S. Ct. 1048 (2010), did not overrule prior decisions holding that abstracts of

judgment cannot be used in the modified categorical approach.

It is true that, prior to Snellenberger, an abstract of judgment alone was not

considered sufficiently reliable to prove a prior conviction for an aggravated

felony. See Sandoval-Lua, 499 F.3d at 1130 n.8; United States v. Narvaez-Gomez,

489 F.3d 970, 977 (9th Cir. 2007); United States v. Navidad-Marcos, 367 F.3d

903, 908 (9th Cir. 2004). This rule, however, did not survive Snellenberger, which

held that a California minute order was sufficiently reliable to prove an aggravated

felony conviction. See United States v. Strickland, 601 F.3d 963, 968–71 (9th Cir.)

(en banc) (relying on Snellenberger to hold that docket sheet alone was sufficient

3
to prove prior conviction where it specified conduct that constitutes a predicate sex

offense under 18 U.S.C. § 2252A(b)), cert. denied, 131 S. Ct. 505 (2010). Minute

orders and abstracts of judgment are quite similar. See Snellenberger, 548 F.3d at

701–02 (describing minute orders); People v. Delgado, 183 P.3d 1226, 1234 (Cal.

2008) (describing abstracts of judgment).

Furthermore, this court held even before Snellenberger that an abstract of

judgment can be used in conjunction with a charging document to prove a prior

conviction for an aggravated felony, provided that the documents together specify

conduct that constitutes an aggravated felony. See United States v. Velasco-

Medina, 305 F.3d 839, 852–53 (9th Cir. 2002). Both Garcia’s abstract of judgment

and his charging Information specify that he was convicted of possessing

methamphetamine with intent to sell, an aggravated felony. See 8 U.S.C. §

1101(a)(43)(B); 21 U.S.C. § 812(c), sched. III(a)(3). Petitioner is removable on

that ground.

Petitioner also argues that his plea agreement, which indicates that he pled

no contest to California Health and Safety Code section 11378 but does not state

what controlled substance he possessed, casts doubt on his abstract of judgment.

This argument was not raised before the BIA and thus this panel does not have

jurisdiction to hear it. See 8 U.S.C. § 1252(d)(1); see also Zara v. Ashcroft, 383

4
F.3d 927, 930 (9th Cir. 2004); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004).

The petition is DENIED.