NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JUAN CARLOS VEGA-CUEVAS, No. 12-70887
Petitioner, Agency No. A057-867-393
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2015**
Portland, Oregon
Before: FISHER, PAEZ, and IKUTA, Circuit Judges.
Juan Carlos Vega-Cuevas petitions for review of the Board of Immigration
Appeals’s dismissal of his appeal, in which it concluded that Vega-Cuevas’s
conviction for manufacture of marijuana under Or. Rev. Stat. § 475.856 is
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
categorically an aggravated felony drug trafficking crime because the same
conduct constitutes a felony under the federal Controlled Substances Act.
A state conviction will constitute a drug-trafficking aggravated felony if it
either (1) includes an element of illicit trafficking, or (2) is a crime punishable as a
felony under the federal Controlled Substances Act, 21 U.S.C. § 801 et. seq.
Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008). Vega-Cuevas argues that
his conviction is not an aggravated felony under the second prong, because §
475.856 is not a categorical match to the federal statute. Vega-Cuevas argues that §
475.856 is broader, because Oregon’s definition of “manufacture” includes the
term “conversion,” while the federal statute does not, though the two definitions
are otherwise substantially identical. Or. Rev. Stat. § 475.005(15); compare 21
U.S.C. § 802(15). Vega-Cuevas likewise argues that Oregon’s definition of
marijuana is broader than the federal definition because the federal definition of
marijuana refers to “all parts of the plant Cannabis sativa L.,” 21 U.S.C. § 802(16),
whereas the Oregon statutory definition refers to “all parts of the plant Cannabis
family Moraceae.” Or. Rev. Stat. § 475.005(16).
“[T]o find that a state statute creates a crime outside the generic definition of
a listed crime in a federal statute . . . requires a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls
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outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007); see Moncrieffe v. Holder, 133 S. Ct. 1678, 1685 (2013). The
petitioner bears the burden of showing that the state statute criminalizes more
conduct than does the federal. See Moncrieffe, 133 S. Ct. at 1693; Duenas-Alvarez,
549 U.S. at 193.
Showing that the text of the statutes at issue are not identical, as Vega-
Cuevas does here, is not alone sufficient to meet this burden. See United States v.
Reveles-Espinoza, 522 F.3d 1044, 1047-48 (9th Cir. 2008) (holding that a
conviction under California state law for felony marijuana cultivation was an
aggravated felony, notwithstanding that the California statute prohibited “drying,”
while the federal statute did not). Instead, Vega-Cuevas must show a realistic
probability that Oregon would prosecute a crime of “conversion,” where the
conduct encompassed by that term did not fall within the federal definition. Or,
Vega-Cuevas must show a realistic probability that Oregon would prosecute a
person under § 475.856 for manufacturing a form of marijuana that did not fall
within the federal definition. See United States v. Kelly, 527 F.2d 961, 963-64 (9th
Cir. 1976) (holding that the federal definition of marijuana proscribed by 21 U.S.C.
§ 841 encompasses all plants that contain tetrahydrocannabinol, or THC).
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Because Vega-Cuevas has not shown a realistic probability that Oregon
would prosecute conduct that falls outside the scope of the Controlled Substances
Act, we deny the petition. Having concluded that Vega-Cuevas’s conviction under
§ 475.856 fell within the second prong of the drug-trafficking aggravated felony
definition, we do not reach his other argument, that it does not include an element
of illicit trafficking or that the BIA violated his due process rights in its analysis.
DENIED.
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