United States Court of Appeals
For the First Circuit
No. 19-1372
MANUEL A. SOTO-VITTINI,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, Kayatta,
Circuit Judges.
Todd C. Pomerleau, with whom Jeffrey B. Rubin and Rubin
Pomerleau PC were on brief, for petitioner.
Rodolfo D. Saenz, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, with whom Joseph
H. Hunt, Assistant Attorney General, Civil Division, and Bernard
A. Joseph, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.
August 24, 2020
BOUDIN, Circuit Judge. Manuel Soto-Vittini ("Soto-
Vittini"), a native and citizen of the Dominican Republic, seeks
review of a Board of Immigration Appeals ("BIA") decision ordering
his removal.
Soto-Vittini entered the United States in 2001 as a
lawful permanent resident. In May 2018, he pled guilty to drug
possession with the intent to distribute. Mass. Gen. Laws ch.
94C, § 32A(a). The Department of Homeland Security ("DHS") then
sought to remove him because his drug conviction constituted an
"aggravated felony" under the Immigration and Nationality Act
("INA"). 8 U.S.C. §§ 1101(a)(43); 1227(a)(2)(A)(iii).
In a written decision, the immigration judge ("IJ")
ruled that, based on his drug conviction, Soto-Vittini was
removable and ineligible for cancellation of removal. Soto-
Vittini sought review by the BIA, which affirmed the IJ's decision.
This appeal followed.
Soto-Vittini first argues that the IJ never obtained
jurisdiction over his removal proceedings because his first
"Notice to Appear" failed to provide the date and time of his
removal hearing. We have repeatedly rejected the same
jurisdictional claim. See Goncalves Pontes v. Barr, 938 F.3d 1,
7 (1st Cir. 2019); see also United States v. Mendoza-Sánchez, 963
F.3d 158, 161 (1st Cir. 2020) (collecting cases).
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Soto-Vittini also contests the BIA's determination that
his drug conviction under section 32A(a) of Massachusetts General
Laws Chapter 94C ("section 32A(a)") is an "aggravated felony" under
the INA. This legal conclusion is reviewed de novo. Campbell v.
Holder, 698 F.3d 29, 32 (1st Cir. 2012).
A permanent resident convicted of an "aggravated felony"
after admission is not only removable under the INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii), but also ineligible for cancellation of
removal, id. § 1229b(a). "[I]llicit trafficking in a controlled
substance"--which includes "any felony punishable under the
Controlled Substances Act"--is an "aggravated felony." Id.
§ 1101(a)(43)(B); 18 U.S.C. § 924(c)(2).
Moncrieffe v. Holder dictates a "categorical approach"
when deciding whether a state drug conviction qualifies as an
"illicit trafficking in a controlled substance" offense under the
INA. 569 U.S. 184, 192 (2013). A conviction qualifies if there
is a realistic probability that the minimum conduct criminalized
by the state drug statute is necessarily conduct that would be
punishable as a felony under the Controlled Substances Act ("CSA").
See De Lima v. Sessions, 867 F.3d 260, 263 (1st Cir. 2017) (citing
Moncrieffe, 569 U.S. at 190).
On appeal, Soto-Vittini argues that section 32A(a) is
categorically overbroad because the differing mens rea
requirements for accomplice liability under state and federal law
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make it such that a defendant could be held liable under section
32A(a), but not the CSA. We do not agree, even assuming the scope
of accomplice liability is relevant to the categorical inquiry
here, see United States v. Capelton, 966 F.3d 1, 6 (1st Cir. 2020).
Massachusetts law requires that an accomplice
"intentionally assist[] the principal in the commission of the
crime . . . , sharing with the principal the mental state required
for that crime." Commonwealth v. Hanright, 994 N.E.2d 363, 368
(Mass. 2013) (quoting Commonwealth v. Richards, 293 N.E.2d 854,
860 (Mass. 1973)), abrogated on other grounds by Commonwealth v.
Brown, 81 N.E.2d 1173, 1182 (Mass. 2017). Under section 32A(a),
the requisite mental state is an intent to distribute. Mass. Gen.
Laws ch. 94C, § 32A(a). Federal law requires that an accomplice
"intend[] to facilitate th[e] offense's commission." Rosemond v.
United States, 572 U.S. 65, 76 (2014). Comparing these two mens
rea requirements, there is no "realistic probability," Moncrieffe,
569 U.S. at 191, that a defendant could satisfy the Massachusetts
standard, but not the federal one.
In short, because the mens rea to convict an accomplice
under section 32A(a) is no broader than under the CSA, Soto-
Vittini's state drug conviction amounts to "illicit trafficking in
a controlled substance," and, thus, an "aggravated felony" under
the INA. 8 U.S.C. § 1101(a)(43)(B). This conclusion makes it
unnecessary to reach Soto-Vittini's remaining argument that
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section 32A(a) is not an "illicit trafficking" offense because it
lacks a trafficking element. See Berhe v. Gonzales, 464 F.3d 74,
80 (1st Cir. 2006).
Affirmed.
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