dissenting.
The majority’s opinion turns on its view that “Medina has been ordered removed from this country because he personally used a small amount of marijuana.” Maj. op. at 71. The problem is, this is not at all why Medina was ordered removed. He was ordered removed based on his controlled substance conviction for the offense of attempting to be under the influence of THC-carboxylic acid in violation of Nev. Rev.Stat. §§ 193.330 and 453.411. THC is listed as a controlled substance on both the Nevada schedule of controlled substances and the federal schedule — and it is listed separately from marijuana. See 21 U.S.C. §§ 802, 812; compare § 812(c) Sch. I(c)(10) with § 812(c) Sch. I(c)(17); see also Nev. Admin. Code § 453.510. The definition of THC in these schedules encompasses THC-carboxylic acid.1 In my view, this satisfies the government’s burden of proving that Medina was convicted of a controlled substance violation other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.
Medina’s argument that THC-carboxylic acid is a metabolite in the body and can be caused by marijuana ingestion does nothing to undercut this; at best it amounts to an argument that he was charged with the wrong offense. However, it is too late for this. Medina was represented by counsel and chose to plead guilty to a THC violation. He did not plead guilty to possessing 30 grams or less of marijuana intended for personal use. Nor did he argue that the factual basis for his plea was insufficient on the ground that what he actually attempted to be under was the influence of marijuana rather than THC. Further, Medina pled guilty to a THC use offense, not to a marijuana possession offense. Because the two substances are separately listed, and Medina admitted that he attempted to be under the influence of THC, the government has shown that he was ordered removed based on a controlled substance offense other than a violation for possession of 30 grams or less of marijuana intended for personal use. We therefore lack jurisdiction under 8 U.S.C. §§ 1252(a)(2)(C) and 1227(a)(2)(B)®, and should dismiss the case.
. 21 U.S.C. § 812 provides: "Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of ... Tetrahydricannabinols" falls under Schedule I.