FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIO MODESTO GONZALEZ-CORN,

AKA Mario M. Gonzalez, AKA

Mario Modesto Gonzalez,

Defendant-Appellant.

No. 13-50480

D.C. No.

2:13-cr-00120-

GW-1

OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

May 5, 2015—Pasadena, California

Filed July 17, 2015

Before: Raymond C. Fisher, Carlos T. Bea

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Fisher
2 UNITED STATES V. GONZALEZ-CORN

SUMMARY*

Criminal Law

The panel affirmed a conviction for illegally reentering

the United States after having been deported, in violation of

8 U.S.C. § 1326(a). 

The panel held that the defendant’s prior conviction under

the federal Controlled Substances Act (CSA), for possessing

marijuana with the intent to distribute, resulting in a sentence

exceeding one year, was for an aggravated felony under the

Immigration and Nationality Act (INA). The panel held that

because the INA incorporates felony violations of the CSA

into its definition of “aggravated felony,” and because the

defendant was convicted of a felony violation of the CSA, his

conviction qualifies as an aggravated felony on its face. The

panel concluded that there is, accordingly, no need to

compare the elements of his conviction to the elements of a

generic federal offense of possession with intent to distribute

marijuana to determine if his conviction was for an

aggravated felony, as set forth in Taylor v. United States, 495

U.S. 575 (1990), and Moncrieffe v. Holder, 133 S. Ct. 1678

(2013). The panel explained that in the aggravated felony

context, the Taylor approach is intended for cases in which

the defendant (or petitioner, in the immigration context) was

convicted under a statutory scheme that is not directly

incorporated into the INA, such as a conviction under state

law. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ-CORN 3

The panel held that the district court did not err when it

instructed the jury that it could infer the defendant’s alienage

from his prior deportation order in combination with his

admissions regarding his alienage.

COUNSEL

Kurt Mayer and Kathryn A. Young (argued), Deputy Federal

Public Defenders; Sean K. Kennedy, Federal Public

Defender; Hilary Potashner, Acting Federal Public Defender,

Los Angeles, California, for Defendant-Appellant.

Allison L. Westfahl Kong (argued) and Jamie A. Lang,

Assistant United States Attorneys; Robert E. Dugdale,

Assistant United States Attorney, Chief, Criminal Division;

Stephanie Yonekura, Acting United States Attorney, Los

Angeles, California, for Plaintiff-Appellee.

OPINION

FISHER, Circuit Judge:

Mario Modesto Gonzalez-Corn was convicted by a

federal jury of illegally reentering the United States after

having been deported, in violation of 8 U.S.C. § 1326(a). He

appeals his conviction, arguing his deportation violated due

process because the immigration judge (IJ) incorrectly

determined he had previously been convicted of an

aggravated felony, as defined by the Immigration and

Nationality Act (INA), 8 U.S.C. § 1101(a)(43). He also

contends the district court improperly instructed the jury
4 UNITED STATES V. GONZALEZ-CORN

about the evidence it could consider in determining his

alienage.

We hold Gonzalez’s prior conviction under the federal

Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq.,

for possessing marijuana with the intent to distribute,

resulting in a sentence exceeding one year, was for an

aggravated felony under the INA. Because the INA

incorporates felony violations of the CSA into its definition

of “aggravated felony,” and because Gonzalez was convicted

of a felony violation of the CSA, his conviction qualifies as

an aggravated felony on its face. Accordingly, there is no

need to compare the elements of his conviction to the

elements of a generic federal offense of possession with

intent to distribute marijuana to determine if his conviction

was for an aggravated felony, as set forth in Taylor v. United

States, 495 U.S. 575 (1990), and Moncrieffe v. Holder, 133 S.

Ct. 1678 (2013). In the aggravated felony context, the Taylor

approach is intended for cases in which the defendant (or

petitioner, in the immigration context) was convicted under

a statutory scheme that is not directly incorporated into the

INA, such as a conviction under state law.

We also hold the district court did not err when it

instructed the jury on the evidence it could consider to

determine alienage. We therefore affirm.

I. BACKGROUND

Gonzalez immigrated to the United States as a teenager

and later became a legal permanent resident. In 2003 he pled

guilty to possession with intent to distribute less than 50

kilograms of marijuana, in violation of 21 U.S.C. § 841(a),

(b)(1)(D). He received a sentence of 15 months in prison.
UNITED STATES V. GONZALEZ-CORN 5

After his conviction, the government initiated removal

proceedings under a provision of the INA authorizing the

removal of noncitizens who have been “convicted of an

aggravated felony at any time after admission.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). The government alleged Gonzalez had

been convicted of “illicit trafficking in a controlled

substance,” which is an aggravated felony under the INA. 

See id. § 1101(a)(43)(B). During removal proceedings before

the IJ, Gonzalez admitted he was not a U.S. citizen, his

mother and father were not U.S. citizens, and he was a native

and citizen of Mexico. The immigration judge found he was

convicted of an aggravated felony and ordered him removed

from the United States. He was deported in 2009.

Gonzalez then returned to the United States without

inspection and was discovered by immigration agents in

January 2013. He was charged in federal district court with

illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). He

moved to dismiss the information under § 1326(d), alleging

the illegal reentry charge was based on a deportation order

that was fundamentally unfair, in violation of his right to due

process under the Fifth Amendment. See 8 U.S.C. § 1326(d). 

Specifically, he argued the immigration judge erred in

determining his marijuana conviction was for an aggravated

felony. The district court denied the motion. Gonzalez

appeals that ruling.

In the ensuing trial, the government was required to prove

Gonzalez was an alien at the time of the offense. See United

States v. Ruiz-Lopez, 749 F.3d 1138, 1141 (9th Cir. 2014). 

The government’s evidence of alienage included Gonzalez’s

prior deportation order, his prior statements that he was a

native and citizen of Mexico and not of the United States, and

his Mexican photo identification and voter registration cards. 
6 UNITED STATES V. GONZALEZ-CORN

The parties disputed how the jury should be instructed in

considering this evidence.

Gonzalez proposed three jury instructions on the subject:

(1) the jury may not rely on an IJ’s order of deportation to

determine whether Gonzalez was an alien, because he was not

entitled to counsel in immigration court and the government

had a lower burden of proof there; (2) an IJ’s order of

deportation, by itself, is insufficient to establish alienage; and

(3) Gonzalez’s prior admissions of Mexican citizenship were

not sufficient, without more, to prove alienage. The district

court rejected the first instruction but said the second and

third might be appropriate if combined. At the court’s

request, the parties submitted a joint instruction combining

the second and third instructions, and included an additional

statement that a defendant’s admissions of foreign citizenship

in combination with a deportation order or other

corroborating evidence may establish alienage.

The district court ultimately gave the jury a slightly

modified version of the jointly proposed instruction, without

objection from the defense. The instruction stated:

The Government has presented evidence that

Defendant was ordered removed by an

immigration judge in a deportation

proceeding. An immigration judge’s order of

deportation alone is insufficient as a matter of

law to establish defendant’s status as an alien. 

Similarly, a defendant’s statement about his

citizenship is not sufficient, without

independent corroborating evidence, to prove

that he is an alien. However, a defendant’s

admissions in combination with a prior
UNITED STATES V. GONZALEZ-CORN 7

deportation order or other corroborating

evidence may establish alienage.

During deliberations, the jury submitted a note to the

court asking two questions about the alienage instruction:

(1) Is it enough that the government

considered [Gonzalez-]Corn an alien at the

time he entered the country for [Gonzalez-

]Corn to be determined to be an alien?

(2) Does the word may in the [alienage

instruction] mean it does establish alienage[?]

The court responded to the first question by referring the

jury to the language in the instruction: “an immigration

judge’s order of deportation alone is insufficient as a matter

of law to establish a defendant’s status as an alien.” The

court further explained that if the only evidence the

government offered on alienage was the deportation order,

that would not be enough. In response to the second

question, the court said “the word ‘may’ . . . means that it

can establish or it cannot establish. In other words, there’s a

possibility. It’s up to the jury to weigh the evidence and

decide whether or not the defendant’s admissions in

combination with a prior deportation order or other

corroborating evidence may establish alienage.”

The next day the jury found Gonzalez guilty. We have

jurisdiction over this appeal under 28 U.S.C. § 1291, and we

affirm.
8 UNITED STATES V. GONZALEZ-CORN

II. STANDARD OF REVIEW

We review de novo the denial of a motion to dismiss a

charge for illegal reentry based on a deportation order that is

alleged to be fundamentally unfair. See United States v.

Sandoval-Orellana, 714 F.3d 1174, 1178 (9th Cir. 2013). We

also review de novo whether a district court’s jury

instructions stated the law correctly. See United States v.

Spentz, 653 F.3d 815, 818 (9th Cir. 2011).

III. DISCUSSION

A. Aggravated Felony Determination

“Because the underlying removal order serves as a

predicate element of [a § 1326 illegal reentry offense], a

defendant charged with that offense may collaterally attack

the removal order under the due process clause.” United

States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006)

(alteration in original) (quoting United States v.

Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)). To do

so, a defendant must show: (1) he exhausted any

administrative remedies to appeal the order, (2) the

deportation proceedings deprived him of the opportunity for

judicial review, and (3) the entry of the order was

fundamentally unfair. See 8 U.S.C. § 1326(d). At issue in

this appeal is the third element: whether Gonzalez’s

deportation was fundamentally unfair because the IJ

incorrectly determined Gonzalez’s prior conviction was for

an aggravated felony. See Camacho-Lopez, 450 F.3d at 930. 

We hold Gonzalez’s conviction was for an aggravated felony

and his deportation order was therefore valid and not

fundamentally unfair.
UNITED STATES V. GONZALEZ-CORN 9

The INA authorizes the removal of noncitizens who have

been “convicted of an aggravated felony at any time after

admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The term

“aggravated felony” includes “illicit trafficking in a

controlled substance (as defined in section 802 of Title 21),

including a drug trafficking crime (as defined in section

924(c) of Title 18).” Id. § 1101(a)(43)(B). Section 924(c), in

turn, defines “drug trafficking crime” to include “any felony

punishable under the Controlled Substances Act (21 U.S.C.

801 et seq.).” 18 U.S.C. § 924(c)(2). A “felony” is classified

as an offense for which the “maximum term of imprisonment

authorized” is “more than one year.” Id. § 3559(a)(5); see

also Moncrieffe v. Holder, 133 S. Ct. 1678, 1683 (2013). 

Accordingly, under the plain language of these provisions, a

conviction qualifies as an aggravated felony when it is for “an

offense that the Controlled Substances Act (CSA) makes

punishable by more than one year’s imprisonment.” 

Moncrieffe, 133 S. Ct. at 1683; see also Lopez v. Gonzales,

549 U.S. 47, 56 & n.7 (2006) (interpreting “felony punishable

under the [CSA]” as an offense which is “defined as a felony

by the CSA” (alteration in original)).

Gonzalez was convicted of a felony under the CSA. The

judgment of conviction lists his offense as “Possession With

Intent to Distribute Less Than 50 Kilograms of Marijuana,”

corresponding to subsection 841(b)(1)(D) of the CSA. See

21 U.S.C. § 841(b)(1)(D). Technically, the CSA defines the

offense of possession with intent to distribute a controlled

substance at subsection 841(a). Subsection (b)(1)(D) is a

corresponding penalty provision that authorizes up to five

years’ imprisonment when the controlled substance is

marijuana and the quantity is less than 50 kilograms. See id.

The authorization of up to five years’ imprisonment makes

the offense a felony. See 18 U.S.C. § 3559(a). However, the
10 UNITED STATES V. GONZALEZ-CORN

CSA contains a misdemeanor exception to this penalty

provision, listed in subsection 841(b)(4), that limits a

defendant’s punishment to one year in prison if his offense

involved a small amount of marijuana and no remuneration. 

See 21 U.S.C. § 841(b)(4).

1 The Supreme Court has held

subsections (b)(1)(D) and (b)(4) are “dovetailing provisions

[that] create two mutually exclusive categories of punishment

for CSA marijuana distribution offenses: one a felony, and

one not.” Moncrieffe, 133 S. Ct. at 1686.

Gonzalez’s judgment lists only subsection (b)(1)(D), not

(b)(4). This suggests he was convicted of a CSA felony. His

judgment also reveals he was sentenced to 15 months’

imprisonment, thus exceeding the one-year maximum

sentence allowed under the misdemeanor sentencing

provision. It is therefore clear he was convicted of a felony

under the CSA and the misdemeanor sentencing exception

did not apply. Because the INA incorporates felony

violations of the CSA into its definition of aggravated felony,

see id. at 1683; Lopez, 549 U.S. at 55–56 & n.7, Gonzalez’s

crime of conviction is, by definition, an aggravated felony

under the INA.

Gonzalez rightly points out that, with respect to some

federal marijuana convictions, it may be impossible to tell

from the face of the judgment alone whether a defendant was

convicted of the CSA felony or the CSA misdemeanor. The

1 This provision reads in full: “Notwithstanding paragraph (1)(D) of this

subsection, any person who violates subsection (a) of this section by

distributing a small amount of marihuana for no remuneration shall be

treated as provided in section 844 of this title and section 3607 of Title

18.” 21 U.S.C. § 841(b)(4). Section 844, in turn, penalizes “simple

possession” with a term of imprisonment “not more than 1 year.” Id.

§ 844(a).
UNITED STATES V. GONZALEZ-CORN 11

practical application of subsections (b)(1)(D) and (b)(4)

explains why. Subsection (b)(1)(D) applies to possession

with intent to distribute any amount of marijuana less than 50

kilograms, no matter how small. See Moncrieffe, 133 S. Ct.

at 1688; United States v. Aguilera-Rios, 769 F.3d 626, 636

(9th Cir. 2014). The burden is on the defendant to prove he

qualifies for the misdemeanor sentencing exception under

subsection (b)(4) by showing his offense involved a small

amount and no remuneration. See Aguilera-Rios, 769 F.3d at

636. But even when subsection (b)(4) is applicable, some

courts treat it as a sentencing factor and not as the offense of

conviction, meaning it may not appear in the judgment. 

Consequently, a judgment might list either the allencompassing offense subsection (a) or the penalty

subsection (b)(1)(D), yet the sentence could have been for

less than one year. In such a case, the judgment of conviction

itself would not reveal whether the district court actually

applied the misdemeanor exception at sentencing.

We do not confront such uncertainty here, however, nor

do we opine on how a reviewing court or immigration judge

should resolve the ambiguity in such a case. Not only does

Gonzalez’s judgment identify subsection (b)(1)(D), without

any reference to the misdemeanor exception, it also reveals he

was sentenced to a term of imprisonment exceeding the

maximum allowable under the misdemeanor provision. It is

therefore clear the sentencing judge did not apply the

misdemeanor exception to Gonzalez.

Even though the INA incorporates Gonzalez’s offense of

conviction, he contends we must engage in the categorical

approach under Taylor v. United States, 495 U.S. 575,

600–02 (1990), and its progeny, by which we compare the

elements of his offense of conviction to the elements of a
12 UNITED STATES V. GONZALEZ-CORN

“generic” federal offense listed as an aggravated felony in the

INA.2 Under this analysis, “if the state statute of conviction

criminalizes more conduct than the federal generic offense,

then the state offense is not categorically included in the

definition of the federal generic offense.” 

Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir.

2013). In such a case, the conviction would not categorically

be for an aggravated felony. Gonzalez argues this is the

approach required by Moncrieffe.

In Moncrieffe, the Supreme Court ruled an immigration

petitioner’s conviction under a Georgia drug statute was not

for an aggravated felony under the INA. See 133 S. Ct. at

1683–84. To do so, the Court applied the categorical

approach to see whether the Georgia law “necessarily”

proscribed conduct punishable as a felony under the

Controlled Substances Act. See id. at 1685. Applying the

categorical approach, the Court first determined what

elements make up the generic federal offense of felony

marijuana possession with intent to distribute. After noting

subsections 841(b)(1)(D) and 841(b)(4) of the CSA create

felony and misdemeanor categories of punishment,

respectively, the Court held the generic federal felony

includes as an element the absence of the factors that mitigate

punishment to misdemeanor status in subsection (b)(4). See

2 Taylor dealt specifically with whether a prior state conviction

constituted a “violent felony” under the Armed Career Criminal Act,

18 U.S.C. § 924(e), applying the categorical matching approach. See

495 U.S. at 578, 602. But the same approach “generally” applies to the

question whether a prior state conviction constitutes an aggravated felony

under the INA, Moncrieffe, 133 S. Ct. at 1684; though not always, see

Nijhawan v. Holder, 557 U.S. 29, 40 (2009) (rejecting the categorical

approach for the monetary threshold for the aggravated felony listing for

fraud).
UNITED STATES V. GONZALEZ-CORN 13

id. at 1686–87. In other words, for a state marijuana

distribution offense to be an aggravated felony, the conviction

must establish “that the offense involved either remuneration

or more than a small amount of marijuana.” Id. at 1693–94. 

Because the Georgia statute at issue could possibly

criminalize possession with intent to distribute small amounts

for no remuneration, it was not a categorical match to the

generic federal offense. See id. at 1686–87.

Gonzalez’s reliance on Moncrieffe is misplaced. We are

not comparing a state drug offense to a federal CSA offense,

as in Moncrieffe. Gonzalez’s offense is a CSA offense. 

Taylor and Moncrieffe’s categorical matching analysis is

inapplicable here because there is nothing to match. See

Moncrieffe, 133 S. Ct. at 1696 (Alito, J., dissenting) (“Where

an alien has a prior federal conviction, it is a straightforward

matter to determine whether the conviction was for a ‘felony

punishable under the [CSA].’” (alteration in original)). All

we must determine is whether the CSA treats Gonzalez’s

offense as a felony. See Lopez, 549 U.S. at 56 n.7. We know

it does because his judgment listed his offense as a violation

of subsection 841(b)(1)(D), not 841(b)(4), and he was

sentenced to more than one year in prison. Because

Gonzalez’s conviction was for an aggravated felony, his

subsequent deportation was valid and did not violate his due

process rights.

B. Jury Instruction on Alienage

Gonzalez also challenges his illegal reentry conviction by

arguing the district court erred by instructing the jury it could

infer he was an alien from a prior deportation order. It is true

a deportation order, on its own, is insufficient to establish

alienage. See United States v. Ruiz-Lopez, 749 F.3d 1138,
14 UNITED STATES V. GONZALEZ-CORN

1141 (9th Cir. 2014) (“‘[N]either a deportation order, nor the

defendant’s own admissions, standing alone,’ is sufficient to

prove alienage.” (alteration in original) (quoting United

States v. Ramirez-Cortez, 213 F.3d 1149, 1158 (9th Cir.

2000))). But the district court did not instruct the jury to the

contrary. Instead, the court instructed the jury that a

deportation order is insufficient, by itself, to establish

alienage, but that Gonzalez’s prior deportation in combination

with his prior admissions “may establish alienage.” This was

a correct statement of the law. See United States v. GalindoGallegos, 244 F.3d 728, 732 (9th Cir. 2001) (“A defendant’s

admissions that he is an alien, together with a deportation

order, suffice to establish alienage.”), amended on other

grounds, 255 F.3d 1154 (9th Cir. 2001).

Gonzalez’s argument that the jury should have been

prohibited from relying on his prior deportation order at all

has no support in the law. He cites United States v. Medina,

236 F.3d 1028, 1030-31 (9th Cir. 2001), but that case merely

confirms a deportation order alone cannot establish alienage. 

See id.; see also United States v. Sandoval-Gonzalez,

642 F.3d 717, 722 n.4 (9th Cir. 2011) (interpreting Medina to

hold a deportation order “may be considered only as relevant,

but not conclusive, evidence” of alienage). The district court

therefore did not misstate the law in its jury instruction.3

3 The government argues Gonzalez waived this issue because he jointly

proposed a jury instruction that was materially indistinguishable from the

one given. See United States v. Hui Hsiung, 778 F.3d 738, 748 (9th Cir.

2015). Alternatively, the government contends we should review the jury

instruction for plain error because Gonzalez did not object to it in the

district court. See United States v. Armstrong, 909 F.2d 1238, 1243–44

(9thCir. 1990). We decline to address these arguments because, assuming

the issue was properly preserved for appeal, the district court’s jury

instruction clearly was not erroneous.
UNITED STATES V. GONZALEZ-CORN 15

IV. CONCLUSION

We hold a conviction for possession with intent to

distribute marijuana under 21 U.S.C. § 841(b)(1)(D) that

results in a sentence exceeding one year constitutes a “felony

punishable under the Controlled Substances Act.” 18 U.S.C.

§ 924(c)(2). As such, it is by definition an aggravated felony

under the Immigration and Nationality Act. Gonzalez’s

deportation order, therefore, did not violate his due process

rights and could properly serve as a predicate element of his

illegal reentry conviction under 8 U.S.C. § 1326(a). 

Additionally, the district court properly instructed the jury

that it could infer Gonzalez’s alienage from his prior

deportation order in combination with his admissions

regarding his alienage.

AFFIRMED.