Smith v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 24, 2006

Charles R. Fulbruge III
Clerk
No. 06-60020

CARVILL ARTHUR SMITH,

Petitioner,

VERSUS

ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of a Final Order of the Board of
Immigration Appeals
A42 161 728

Before JOLLY, DAVIS and BENAVIDES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

In this appeal, Smith challenges a Board of Immigration

Appeals (“BIA”) order dismissing his appeal from an Immigration

Judge (“IJ”) order denying Smith’s application for the

discretionary relief of cancellation of removal. The BIA concluded

that Smith was ineligible for this discretionary relief because he

had been convicted of an “aggravated felony” under the Immigration

and Nationalization Act (“INA”). Because we disagree that the
conviction qualifies as an “aggravated felony,” we vacate the BIA

order and remand this case to the BIA for further proceedings.

I.

Smith entered the United States in 1990 and lived in the New

York area until October 2004. In 2004, Smith was convicted of two

misdemeanor marijuana offenses under New York State law, one in

March (“March 2004 conviction”) and the other in October (“October

2004 conviction”). The offenses are classified under New York law

as class A misdemeanors with a maximum sentence of one year. See

N.Y. Penal Law §§ 221.40 and 70.15. The Department of Homeland

Security (“DHS”) initiated removal proceedings against Smith on the

basis of the March 2004 conviction. The IJ found Smith removable

as an alien convicted of a controlled substance violation and an

“aggravated felony” as defined in the INA. The BIA then vacated

and remanded the case to the IJ with instructions to determine

whether Smith’s conviction constitutes “illicit trafficking” or a

“drug trafficking crime” as defined in 18 U.S.C. § 924(c).1

In the remanded proceedings, Smith submitted an application

for cancellation of removal for permanent resident aliens.

However, this discretionary relief is not available if the

1
An “aggravated felony” is defined under 8 U.S.C. §
1101(a)(43)(B) as “illicit trafficking,” including a “drug
trafficking crime.”

2
individual is found to have been convicted of an “aggravated

felony” (which includes a drug trafficking crime as defined in 18

U.S.C. § 924(c)). See 8 U.S.C. §§ 1229b(a)(3) and 1101(a)(43)(B).

After determining that Smith’s conviction did not constitute

“illicit trafficking” within the meaning of 8 U.S.C. §

1101(a)(43)(B), the IJ performed a cancellation of removal

analysis. The IJ concluded that “unusual and outstanding equities”

weighed in favor of cancellation of removal.

However, this did not end the matter. In his application for

cancellation of removal, Smith admitted that, in addition to his

March 2004 conviction, he was convicted in October 2004 for the

criminal sale of marijuana in the fourth degree. On the basis of

this admission, DHS sought to block the cancellation by arguing

that, although Smith’s first conviction constituted only a

misdemeanor under federal law, his October 2004 conviction, even if

only a state misdemeanor, was punishable under Section 844(a) of

the Controlled Substances Act (“CSA”) as a felony. See 21 U.S.C.

§ 844(a). According to the government, since the offense would be

considered a felony had he been prosecuted under federal law, the

conviction constituted a “drug trafficking crime” under § 924(c)

and an “aggravated felony” under the INA. The IJ agreed with this

argument and concluded that the October 2004 conviction rendered

Smith ineligible for the discretionary relief of cancellation of

removal. The BIA dismissed the appeal from the order of the IJ and

this appeal followed.

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 II.

Removability is conceded in this case and the only issue

presented in this appeal is whether the BIA correctly concluded

that Smith, a lawful permanent resident, is ineligible for the

discretionary relief of cancellation of removal. The answer to

this question in turn depends on the correctness of the BIA’s

conclusion that Smith had been convicted of an “aggravated felony”

as defined in 8 U.S.C. § 1101. “Aggravated felony” is defined as

including “a drug trafficking crime (as defined in section 924(c)

of Title 18).” 8 U.S.C. § 1101(a)(43)(B). “Drug trafficking

crime” is defined in 18 U.S.C. § 924(c)(2) as “any felony

punishable under the Controlled Substances Act,” 21 U.S.C. § 901 et

seq, (or one of the other two enumerated statutes). The CSA

defines a “felony” as “any federal or state offense classified by

applicable federal or state law as a felony.” 21 U.S.C. § 802(13).

The recently amended 8 U.S.C. § 1252(a)(2)(D) makes it clear

that this court has jurisdiction to review BIA determinations of

questions of law. The determination of whether an offense is an

“aggravated felony” within the INA as well as the interpretation of

“drug trafficking crime” as defined in 18 U.S.C. § 924 are issues

of law that we review de novo.

The government argues that the October 2004 conviction, is a

drug trafficking crime because it is a felony punishable under the

CSA. Petitioner does not dispute that his offense is punishable

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under the CSA but contends that it is not a felony under that Act

because it is not a “federal or state offense classified by

applicable federal or state law as a felony.” 21 U.S.C. § 802(13).

Since the October 2004 conviction was obtained under New York law,

the petitioner argues that the “applicable” law is the convicting

jurisdiction of New York and under New York law this conviction is

not classified as a felony. The government argues that the

“applicable” law is federal law and that if petitioner had been

convicted of the October 2004 offense under 21 U.S.C. § 844(a), he

would have faced a possible sentence of more than one year.2

Therefore, according to the government, the conviction under the

analogous federal statute would constitute a “felony” and a “drug

trafficking crime.”

The government points out that the issue presented in this

appeal has just been argued before the United States Supreme Court

in the consolidated cases of Lopez v. Gonzales, 417 F.3d 934 (8th

Cir. 2005), cert. granted 126 S. Ct. 1651, 164 L.Ed.2d 395 (U.S.

Apr. 3, 2006); and U.S. v. Toledo Flores, 149 Fed.Appx. 241 (5th

Cir. 2005), cert. granted 126 S. Ct. 1652, 164 L.Ed.2d 395 (U.S.

Apr. 3, 2006), and we should defer our ruling pending a decision in

that case. In Lopez and Toledo-Flores, the government argued that

2
The government relies on the recidivist sentencing enhancement
provision in 21 U.S.C. § 844(a) in support of this argument. The
government argues that Smith could have been sentenced to a maximum
of two years for his October 2004 offense because of his prior
conviction for a drug offense in March 2004.

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a state drug conviction for an offense encompassing conduct within

the CSA is only a drug trafficking crime if the law of the

convicting jurisdiction authorizes punishment as a felony as

defined by 18 U.S.C. § 3559 (imprisonment in excess of one year).

Contrary to its argument in Lopez and Toledo-Flores, the government

in this case argues that Smith must be regarded as an alien

convicted of a felony based on his October 2004 conviction even

though that conviction would not carry a punishment in excess of

one year under New York law. The government argues that the New

York conviction is a felony because if it had been prosecuted under

federal law, the punishment would have exceeded one year,

constituting a felony under the CSA. See Gerbier v. Holmes, 280

F.3d 297, 308 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir.

1996); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004).

The government contends that our recent decision in U.S. v.

Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005), supports this

argument.3

3
It is far from certain that this is a correct interpretation
of this opinion. In several opinions that preceded Sanchez-
Villalobos, we arrived at our ultimate conclusion based on the law
of the convicting jurisdiction, implying that the characterization
of the conviction under the law of the convicting court controlled.
See U.S. v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001); U.S. v.
Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

The effect of Part B in Sanchez-Villalobos is uncertain. The
conclusion of the panel in Sanchez-Villalobos that the state
conviction was a felony is fully explainable by the conclusion
reached in Part A of the decision that the conviction qualified as
a felony because under state law the punishment for the offense
exceeded one year.

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 We need not accept the government’s invitation to await the

Supreme Court’s ruling in Lopez and Toledo-Flores because, even

assuming that the government’s approach is correct, we conclude

that Smith’s October 2004 conviction does not qualify as a felony

under federal law.

A violation of 21 U.S.C. § 844(a), the federal statute

analogous to Smith’s offense, is generally punishable only as a

misdemeanor under federal law. 21 U.S.C. § 844(a) provides in

pertinent part:

It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance unless
such substance was obtained directly, or pursuant to a
valid prescription or order, from a practitioner, while
acting in the course of his professional practice, or
except as otherwise authorized by this subchapter or
subchapter II of this chapter . . . . Any person who
violates this subsection may be sentenced to a term of
imprisonment of not more than 1 year, and shall be fined
a minimum of $1,000, or both, except that if he commits
such offense after a prior conviction under this
subchapter or subchapter II of this chapter, or a prior
conviction for any drug, narcotic, or chemical offense
chargeable under the law of any State, has become final,
he shall be sentenced to a term of imprisonment for not
less than 15 days but not more than 2 years.

Thus, it is only when a person violates § 844(a) after a prior

conviction for a controlled substance violation has become final

that the offender may be sentenced under the statute’s recidivist

sentencing enhancement provision for a period in excess of one

year, elevating the offense to that of a felony. The BIA reasoned

that following his March 2004 conviction, Smith’s October 2004

offense was punishable as a felony under the recidivist sentencing

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enhancement provision of 21 U.S.C. § 844(a). However, under §

844(a), the enhancement only applies if he “commits such offense

after a prior conviction . . . for any drug . . . offense,

chargeable under the law of any state, has become final.” 21

U.S.C. § 844(a) (emphasis added). For reasons stated below, we

conclude that the March 2004 conviction was not final at the time

the October 2004 offense was committed and therefore the recidivist

provision has no application.

Under New York law, Smith had 30 days from the March 2004

conviction to file a direct appeal. See N.Y. Crim. Proc. § 460.10.

Thereafter, Smith had a period of one year in which to seek

discretionary review of his March 2004 conviction. See N.Y. Crim.

Proc. § 460.30. Thus, when Smith committed the October 2004

offense, his time for filing a direct appeal had expired but he had

several months left within which to seek discretionary review.

We agree with the BIA that “because the meaning of the phrase

‘drug trafficking crime’ in 18 U.S.C. § 924(c)(2) is a matter of

federal criminal law,” we should defer to the interpretation given

that statute by the federal circuit courts of appeal that have

spoken on that issue. In re: Yanez-Garcia, 23 I. & N. Dec. 390,

396 (BIA 2002). This is consistent with our own case law. See

Hernandez-Avalos, 251 F.3d at 508 n.2.

Although we have not specifically determined the meaning of

the term “final” in § 844(a), we have defined the term in two

analogous provisions of the CSA. In U.S. v. Morales, 854 F.2d 65

8
(5th Cir. 1988), this court addressed the question of whether a

sentence imposed under federal law could be enhanced based on a

prior state conviction. This question in turn depended upon

whether the state conviction was final. We considered whether this

question was governed by state or federal law and concluded that

federal law controlled. Morales, 854 F.2d at 68. We further

concluded that the meaning of the term “final” as used in §

841(b)(1)(B) of the CSA was as follows: “[T]he final conviction

language of 841(b)(1)(B) applies to a conviction which is no longer

subject to examination on direct appeal, including an application

for certiorari to the United States Supreme Court, either because

of disposition on appeal and conclusion of the appellate process or

because of the passage, without action, of the time for seeking

appellate review.” Id. at 69 (emphasis added); see also U.S. v.

Vasquez, 298 F.3d 354, 359 (5th Cir. 2002).

Our cases make it clear that a judgment is not final within

the meaning of the CSA until the time for seeking discretionary

review of the conviction has elapsed. We see no basis to

distinguish the delay for seeking discretionary review to the New

York intermediate appellate court from the time required for

seeking discretionary review in a writ of certiorari to the United

States Supreme Court. Because Smith had approximately six months

remaining in which to seek review of the March 2004 conviction at

the time he committed the October 2004 offense, his March 2004

conviction was not final and therefore the sentence for the October

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2004 offense was not subject to enhancement based on a prior final

conviction.

In summary, neither the March 2004 offense nor the October

2004 offense could be punished as a felony under either state law

or federal law and neither offense qualified as a drug trafficking

crime. Smith’s convictions therefore do not constitute aggravated

felonies, making him eligible for consideration for the

discretionary relief of cancellation of removal. Accordingly, the

order of the BIA dismissing the petition for discretionary relief

is vacated and this case is remanded to the BIA for consideration

of Smith’s claim for discretionary relief.

VACATED and REMANDED.

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