UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1640
YANNICK TOURE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 13, 2011 Decided: January 5, 2012
Before KING, WYNN, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jason L. Pope, BERLIN & ASSOCIATES, P.A., Baltimore, Maryland,
for Petitioner. Tony West, Assistant Attorney General, M.
Jocelyn Lopez Wright, Senior Litigation Counsel, Kelly J. Walls,
Trial Attorney, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yannick Toure, a native and citizen of France,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order finding Toure was removable for having committed
an aggravated felony and determining he was not eligible for
relief from removal. Toure contends that his Maryland
conviction for conspiracy to distribute marijuana is not an
aggravated felony because it is not a drug trafficking crime
under the Controlled Substances Act (“CSA”). We deny the
petition for review.
Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court
lacks jurisdiction to review any final order of removal against
an alien who is removable for having committed an aggravated
felony or a controlled substance violation. See 8 U.S.C.A.
§ 1227(a)(2)(A)(iii), (B)(i) (West 2005 & Supp. 2011). However,
the court retains jurisdiction to ascertain whether in fact the
petitioner is an alien and that he has been convicted of a
relevant offense. See Argaw v. Ashcroft, 395 F.3d 521, 524 (4th
Cir. 2005). In addition, the jurisdictional bar set forth above
does not apply to questions of law and constitutional claims.
See 8 U.S.C. § 1252(a)(2)(D). This court does not defer to the
Board’s determination that a particular state conviction
qualifies as an aggravated felony. See Argaw, 395 F.3d at 524.
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Toure’s claim that his marijuana conspiracy conviction is not an
aggravated felony is a question of law.
Under INA § 237(a)(2)(A)(iii), 8 U.S.C.A.
§ 1227(a)(2)(A)(iii), an alien is removable for having been
convicted of an aggravated felony at any time after admission.
Under INA § 101(a)(43)(B), 8 U.S.C.A. § 1101(a)(43)(B) (West
2005 & Supp. 2011), an aggravated felony includes “illicit
trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of Title 18)[.]”
In addition, a conviction for a conspiracy to commit a drug
trafficking crime is also an aggravated felony. See INA
§ 101(a)(43)(U); 8 U.S.C.A. § 1101(a)(43)(U).
A “[d]rug trafficking crime” means any felony
punishable under the CSA. See 18 U.S.C. § 924(c)(2) (2006);
Lopez v. Gonzales, 549 U.S. 47, 53 (2006). “[A] state offense
constitutes a ‘felony punishable under the Controlled Substances
Act’ only if it proscribes conduct punishable as a felony under
that federal law.” Lopez, 549 U.S. at 60. Thus, a misdemeanor
state drug offense may be considered a drug trafficking crime if
the same crime is a felony under the CSA. 21 U.S.C.A.
§ 841(a)(1) (West 1999 & Supp. 2011) of the CSA provides that it
is unlawful “knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance[.]” Under the
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federal statute, distribution or possession with intent to
distribute up to fifty kilograms of marijuana is punishable by
up to five years’ imprisonment, which renders the offense a
felony. See 21 U.S.C.A. § 841(b)(1)(D); Lopez, 549 U.S. at 56
n.7 (under the CSA, felonies are those crimes to which it
assigns a punishment exceeding one year imprisonment).
Likewise, a conspiracy to commit the same offense carries the
same penalties. See 21 U.S.C. § 846 (2006).
Toure’s arguments are without merit. His state
conviction for conspiracy to distribute marijuana clearly
constitutes a felony punishable under the CSA and is thus an
aggravated felony. See, e.g., Garcia v. Holder, 638 F.3d 511,
515-16 (6th Cir. 2011) Because Toure was properly found to
have been convicted of an aggravated felony, he is not eligible
for relief from removal. See 8 U.S.C. § 1229b(a)(2006).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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