2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-19-2008

Evanson v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 07-2509

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-2509

___________

WISTER EVANSON

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

___________

Petition for Review of an Order 

of the Board of Immigration Appeals

(No. A 37-592-428)

___________

Argued September 11, 2008

Before: SLOVITER, FUENTES, and ALDISERT,

Circuit Judges

(Filed: December 19, 2008 )
2

Martin A. Kascavage, Esq. (Argued)

Schoener & Kascavage

400 Market Street, Suite 420

Philadelphia, PA 19106-0000

Attorney for Petitioner

Richard M. Evans, Esq.

Michelle G. Latour, Esq.

Virginia M. Lum, Esq.

Kohsei Ugumori, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044-0000

Attorneys for Respondent

 

OPINION OF THE COURT

 

FUENTES, Circuit Judge:

Wister Evanson, a native and citizen of Trinidad and

Tobago, pled guilty to possession of marijuana with intent to

deliver and criminal conspiracy in violation of Pennsylvania

law. After the state judge sentenced him to probation and

community service, the Department of Homeland Security

(“DHS”) commenced removal proceedings. The Immigration

Judge (“IJ”) found that Evanson’s offense did not constitute an

aggravated felony and granted cancellation of removal.

However, based on information found only in a sentencing

document, the Board of Immigration Appeals (“BIA”) found

that the offense constituted an aggravated felony and ordered

removal. For the reasons that follow, we conclude that the BIA

erred in failing to apply the modified categorical approach set

forth in Taylor v. United States, 495 U.S. 575 (1990), and

Shepard v. United States, 544 U.S. 13 (2005), and therefore

erred when it considered Evanson’s sentencing document to

determine whether he had been convicted of an aggravated

felony. We will thus grant the Petition and remand for further
 Ofori is the mother of Evanson’s youngest child. At the 1

time, Evanson was living with Starlette Sumpter, the mother of

his other children.

3

proceedings.

I.

Wister Evanson, 42, was admitted to the United States as

a permanent resident in December of 1981. In March 2005,

Evanson was a passenger in a car owned and driven by

Stephanie Ofori, his girlfriend, when they were hit by a drunk

driver. Police responding to the accident found marijuana in 1

the car and arrested Evanson. According to the Affidavit of

Probable Cause attached to the Police Criminal Complaint, the

marijuana was in a large black trash bag found on the back seat

of the car and was divided into one large zip-lock bag, two

medium-sized zip-lock bags, and one-hundred small zip-lock

bags. The Criminal Complaint also alleged that a marijuana

cigarette was found in Evanson’s pocket. 

Evanson pled guilty in Pennsylvania state court to a

criminal information charging him with committing a controlled

substance offense in violation of 35 Pa. Stat. Ann. § 780-

113(a)(30), and criminal conspiracy to commit that offense in

violation of 18 Pa. Stat. Ann. § 903. 35 Pa. Stat. Ann. § 780-

113 states:

(a) The following acts and the causing thereof

within the Commonwealth are hereby prohibited:

. . . .

(30) Except as authorized by this act, the

manufacture, delivery, or possession with intent to

manufacture or deliver, a controlled substance by

a person not registered under this act, or a

practitioner not registered or licensed by the

appropriate State board, or knowingly creating,

delivering or possessing with intent to deliver, a

counterfeit controlled substance.

Mirroring the language of the statute, the information alleged

that Evanson “did manufacture, deliver, or possess with an

intent to manufacture or deliver a controlled substance(s), to wit:

MARIJUANA.” (Administrative Record (A.R.) 238.) These

counts of the information did not contain any additional detail
4

about the offenses. 

Evanson was sentenced to thirty-six months’ probation

and community service. The judgment of sentence stated that

Evanson was charged with “intent to deliver or manufacture

marijuana .4841 lbs drug schedule I.” (A.R. 252.) 

Following his sentencing, DHS commenced removal

proceedings against Evanson. Specifically, DHS charged

Evanson with removability under 8 U.S.C. § 1227(a)(2)(A)(iii),

which provides that “[an] alien who is convicted of an

aggravated felony at any time after admission is deportable,”

and under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that an

alien who at any time after admission has been

convicted of a violation of (or a conspiracy or

attempt to violate) any law or regulation of a

State, the United States, or a foreign country

relating to a controlled substance (as defined in

section 802 of Title 21), other than a single

offense involving possession for one’s own use of

30 grams or less of marijuana, is deportable. 

Evanson denied the charges of removability. 

At Evanson’s first hearing, the IJ noted that he was

required to consider “what [Evanson was] found guilty of or

pleaded guilty to” rather than the facts of the underlying offense.

(A.R. 70.) The IJ then held that the Criminal Complaint was not

“sufficient evidence” of the elements to which Evanson pled

guilty because it had been superceded by an information. (A.R.

69, 70-71.) The hearing was adjourned to give the Government

an opportunity to supplement the record with evidence that

would establish the elements of the offense to which Evanson

pled guilty, namely a copy of the information and a transcript of

Evanson’s plea colloquy.

At a hearing in December 2006, the IJ reviewed the

criminal information—no transcript of the plea colloquy was

presented despite the IJ’s suggestion—and found that it did not

establish that Evanson’s offense involved payment. The IJ

therefore found that Evanson’s offense “could qualify as a

Federal misdemeanor.” (A.R. at 82.) 

Accordingly, the IJ found that the Government had not

established that Evanson had been convicted of an aggravated
 An alien who has been convicted of an aggravated felony is 2

not eligible for most discretionary relief. Conversely, an alien

who was convicted of violating a law related to a controlled

substance is removable, but may seek discretionary relief

including cancellation of removal under 8 U.S.C. § 1229b(a).

5

felony and dismissed that count of the removability proceeding.

The IJ concluded that Evanson was nonetheless removable

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because he had been

convicted of violations of laws or regulations related to a

controlled substance. 

2

Evanson then presented an application for cancellation of

removal under 8 U.S.C. § 1229b(a), which provides relief from

removal for certain long-time permanent residents. At a hearing

on the application, Evanson testified that the night before his

arrest a friend placed a bag of marijuana in the trunk of Ofori’s

car and forgot to take it with him when he got out of the car.

Evanson denied that he knew that the marijuana was left in the

car or the volume of marijuana. The next day, Ofori was driving

Evanson home when they were hit by a drunk driver. A police

officer witnessed the accident and asked Ofori to follow him

while he pursued the driver. Once the driver was stopped,

another officer indicated that he smelled marijuana and asked to

search Ofori’s car. The officer found the bag of marijuana and

Evanson was arrested. Evanson admitted casual marijuana use,

but denied that he ever sold marijuana or used marijuana in front

of his children. 

Evanson also testified about his lengthy residence in the

United States. In addition to serving as a reservist in the United

States armed forces, Evanson has been gainfully employed in

the health care field for at least ten years. Also, he has

completed a number of courses towards an undergraduate

degree in computer science from St. Joseph’s University.

Evanson testified that he has three children, ages 15, 5, and 2, all

United States citizens. At the time he was taken into

immigration custody, Evanson lived with the older two children

and their mother and saw the youngest child on a regular basis.

Evanson supported all three children. Following Evanson’s

testimony, the IJ credited Evanson’s account of the incident and

granted his request for cancellation of removal based primarily

on his close relationship with his young United States citizen

children.
 The Government has filed a motion to dismiss based on its 3

argument that Evanson was convicted of an aggravated felony.

However, we will deny that motion for the reasons that follow.

6

The Government appealed to the BIA. In its decision, the

BIA found that Evanson had been convicted of an offense

“involving possession with intent to deliver or manufacture a

controlled substance, marihuana, in the amount of .4841

pounds.” (App. 6.) The BIA did not discuss how it determined

that Evanson’s offense involved .4841 pounds of marijuana.

“Based on the large quantity of marijuana involved,” the Board

concluded that Evanson’s conviction was punishable as a felony

under the federal Controlled Substances Act, 21 U.S.C. §

841(a), and thus was an aggravated felony. (App. 6.) As a

result, the BIA found that Evanson was not eligible for

cancellation of removal and ordered him removed. Evanson

petitions for review.

II.

We have jurisdiction to determine de novo whether

Evanson’s conviction constituted an aggravated felony, but not

to review the BIA’s exercise of its discretion in granting or

denying cancellation of removal. 8 U.S.C. § 1252(a)(2)(C),

(D).3

Evanson contends that his conviction under Pennsylvania

state law did not constitute an aggravated felony. The

Government argues that Evanson’s controlled substance offense

was an aggravated felony, and that he is therefore ineligible for

discretionary relief from an order of removal. To determine if

Evanson has been convicted of an aggravated felony, we begin

with its definition under the Immigration and Nationality Act

(“INA”). The definition of “aggravated felony” includes, in

relevant part, “illicit trafficking in a controlled substance (as

defined in 802 of Title 21), including a drug trafficking crime

(as defined in section 924(c) of Title 18).” 8 U.S.C. §

1101(a)(43)(B). In turn, section 924(c) defines “drug trafficking

crime” as “any felony punishable under the Controlled

Substances Act.” Thus, a state drug conviction constitutes an

aggravated felony if (a) it would be punishable as a felony under

the federal Controlled Substances Act, or (b) it is a felony under

state law and includes an illicit trafficking element.

Accordingly, we apply two independent tests for determining

whether a state drug offense constitutes an aggravated felony:
7

the “illicit trafficking element” route and the “hypothetical

federal felony” route. Garcia v. Att’y Gen., 462 F.3d 287, 291

(3d Cir. 2006) (citing Gerbier v. Holmes, 280 F.3d 297, 313 (3d

Cir. 2002)).

A. Hypothetical Federal Felony

Under the hypothetical federal felony route, we compare

the offense of conviction to the federal Controlled Substances

Act to determine if it is analogous to an offense under that Act.

The federal Controlled Substances Act makes it a felony to

knowingly or intentionally “manufacture, distribute, or dispense,

or possess with intent to manufacture, distribute, or dispense,”

any amount of marijuana, except that “distributing a small

amount of marihuana for no remuneration” is a misdemeanor.

21 U.S.C. § 841(a), (b)(1)(D), (b)(4). A state marijuana

conviction is therefore only equivalent to a federal drug felony

if the offense involved payment or more than a small amount of

marijuana. See Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.

2001) (“Since distribution of marijuana without remuneration is

not inherently a felony, it seems to us that the only alternative to

so regarding it consistent with the rule of lenity would be to treat

any § 844 offense in this context as a misdemeanor.”); Wilson

v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003).

In Jeune v. Att’y Gen., we considered whether a

conviction under 35 Pa. Stat. Ann. § 780-113(a)(30) was

analogous to a violation of 21 U.S.C. § 841(b)(1)(D). 476 F.3d

199, 204-05 (3d Cir. 2007). We found that distributing a small

amount of marijuana for no remuneration could be prosecuted

under the Pennsylvania statute, and thus that we could not

determine that it was equivalent to a federal drug felony without

more information about the conviction. Id.

We recognize that other courts have disagreed with our

view of 21 U.S.C. § 841. See, e.g., Julce v. Mukasey, 530 F.3d

30, 35 (1st Cir. 2008) (holding that a petitioner bears the burden

of proving that a state marijuana conviction did not involve

remuneration to escape the conclusion that the conviction

amounted to a federal felony); In re Aruna, 24 I. & N. Dec. 452,

458 n.4 (B.I.A. 2008) (declining to apply Steele to cases arising

outside of the Third Circuit). However, the Government makes

no argument that we should alter our conclusion that distribution

of a small amount of marijuana without remuneration is not

inherently a federal felony. Accordingly, we need not revisit

this issue.
8

B. Illicit Trafficking Element

Under the illicit trafficking element test, a state felony

drug conviction constitutes an aggravated felony if it contains a

trafficking element. See, e.g., Gerbier, 280 F.3d at 305-06. “To

contain a trafficking element, a state felony must involve ‘the

unlawful trading or dealing of a controlled substance.’” Jeune,

476 F.3d at 202 (quoting Gerbier, 280 F.3d at 305); see also

Steele, 236 F.3d at 135 (“Essential to the concept of ‘trading or

dealing’ is activity of a business or merchant nature, thus

excluding simple possession or transfer without consideration.”

(internal quotation marks and citation omitted)).

In Garcia, we noted that the Pennsylvania statute “may

encompass conduct that does not involve trading or dealing. In

particular, it is not clear that every violation of the

manufacturing provision involves trading or dealing.” 462 F.3d

at 293 n.9. In Jeune, we clarified that “more than the bare fact

of conviction” under 35 Pa. Stat. Ann. § 780-113(a)(30) is

needed to satisfy the illicit trafficking element test. 476 F.3d at

204 (noting that “[m]anufacturing marijuana for personal use

would arguably not be an aggravated felony”). 

Accordingly, under either the hypothetical federal felony

test or the illicit trafficking element test, a conviction under the

Pennsylvania statute is not necessarily an aggravated felony.

Thus, we must determine what records may be consulted to

evaluate a conviction under the Pennsylvania statute.

C. Categorical Approach

To determine whether an offense of conviction amounts

to an aggravated felony, including by means of the hypothetical

federal felony and illicit trafficking element tests, we

presumptively apply a “formal categorical approach.” Singh v.

Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004) (synthesizing our

aggravated felony case law). A formal categorical approach

prohibits us from any review of the factual basis for an

underlying conviction. Id. at 147-48. Thus, to determine what

records we may consult in evaluating Evanson’s Pennsylvania

conviction, we must determine whether the presumption in favor

of the formal categorical approach applies, and if not, how far

we may depart from it. We begin by considering the origin of

the categorical approach.

The Supreme Court set forth the formal categorical

approach in the context of the Armed Career Criminal Act
 Some confusion has resulted from inconsistent use of the 4

phrase “modified categorical approach.” See Conteh v.

Gonzales, 461 F.3d 45, 54 (1st Cir. 2006) (describing different

uses of the term). We use the term to mean looking beyond the

statutory definition, but only for the purpose of determining the

elements necessarily found by a jury, or admitted by a defendant

in pleading guilty. Nijhawan v. Att’y Gen., 523 F.3d 387, 393

(3d Cir. 2008) (“The modified categorical approach entails

scrutiny of the nature of the conviction itself and those elements

that the jury necessarily found through an examination of

judicial record evidence. If the jury did not necessarily find that

9

(“ACCA”), 18 U.S.C. § 924(e)(1). Taylor v. United States, 495

U.S. 575 (1990). The ACCA requires an enhanced penalty for

possession of a firearm when the defendant has “three previous

convictions . . . for a violent felony or a serious drug offense, or

both.” 18 U.S.C. § 924(e). “Violent felony” is defined as an

offense that “(i) has as an element the use, attempted use, or

threatened use of physical force against the person of another;

or (ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B). Taylor had been convicted of violating a state

burglary statute that had a broader definition than the Court

found Congress intended to apply to the term “burglary” as used

in the ACCA. See 495 U.S. at 578-79. Thus, in Taylor, the

Court was confronted with deciding “whether the sentencing

court in applying § 924(e) must look only to the statutory

definitions of the prior offenses,” the formal categorical

approach, “or whether the court may consider other evidence

concerning the defendant’s prior crimes,” the factual approach.

Id. at 600. Noting the language of § 924(e), legislative history

suggesting “a categorical approach to predicate offenses,” and

“the practical difficulties and potential unfairness of a factual

approach,” the Supreme Court concluded that a trial court

should generally “look only to the fact of conviction and the

statutory definition of the prior offense.” Id. at 600-02.

However, the Supreme Court also held that it was

appropriate “to go beyond the mere fact of conviction in a

narrow range of cases where a jury was actually required to find

all the elements of [an ACCA predicate offense].” Id. at 602.

We refer to this second step of the Taylor analysis as the

modified categorical approach. In particular, in Taylor the 4
element, the ‘conviction’ will not fit within the enhanced

category.”). In other words, we use “modified categorical

approach” to refer to the second step of the Taylor analysis

rather than to a broader review of the record of conviction to

determine a petitioner’s underlying conduct.

10

Court held that we may consult the charging document and jury

instructions in addition to the statutory definition to determine

what elements formed the basis for a defendant’s underlying

conviction. Id. at 602.

In Shepard v. United States, 544 U.S. 13, 19-20 (2005),

the Court extended the modified categorical approach to cases

resolved by guilty plea. The Court reiterated that a court

applying § 924(e) must avoid “evidentiary enquiries into the

factual basis for the earlier conviction,” instead focusing on

whether a “plea had ‘necessarily’ rested on” the elements of an

ACCA predicate offense. Id. at 20-21 (quoting Taylor, 495 U.S.

at 602). Thus, the Court held that appropriate records to

consider in evaluating a pleaded case are the “statutory

definition, charging document, written plea agreement,

transcript of the plea colloquy, and any explicit factual finding

by the trial judge to which the defendant assented”—the closest

analogs to the materials approved in Taylor. 544 U.S. at 16, 20-

23 (holding that “a police report submitted to a local court as

grounds for issuing a complaint” was not an appropriate

document to consider). 

Like the ACCA, 8 U.S.C. § 1227(a)(2)(A)(iii)—the

section of the INA that renders an aggravated felon

removable—refers to “[a]ny alien who is convicted of an

aggravated felony” (emphasis added) rather than to any alien

who “has committed” an aggravated felony. Cf. In re

Velazquez-Herrera, 24 I. & N. Dec. 503, 513 (B.I.A. 2008)

(“For nearly a century, the Federal circuit courts of appeals have

held that where a ground of deportability is premised on the

existence of a ‘conviction’ for a particular type of crime, the

focus of the immigration authorities must be on the crime of

which the alien was convicted, to the exclusion of any other

criminal or morally reprehensible acts he may have

committed.”). Accordingly, we presumptively apply the

“formal categorical approach” in evaluating whether predicate

convictions fall within the definition of “aggravated felony.”

Singh, 383 F.3d at 161; see also id. at 152 (noting that Taylor’s
11

analysis applies in the aggravated felony context “because §

1101(a)(43) [the section enumerating aggravated felonies] is

similar to 18 U.S.C. § 924(e) in that it too enumerates offenses,

conviction of which places an alien in the category of

‘aggravated felon’”); Gonzales v. Duenas-Alvarez, 549 U.S. 183

(2007) (applying the Taylor framework in aggravated felony

context).

As in the ACCA context, our analysis is not always

limited to the formal categorical approach. Confronted with a

disjunctive statute of conviction, one in which there are

alternative elements, we apply the modified categorical

approach set forth in Taylor and Shepard to determine which of

the alternative elements was the actual basis for the underlying

conviction. Singh, 383 F.3d at 162-63; Nijhawan v. Att’y Gen.,

523 F.3d 387, 393 (3d Cir. 2008) (noting that the modified

categorical approach applies to cases involving “divisible”

statutes of conviction).

We depart farther from the formal categorical approach

only where the language of a particular subsection of §

1101(a)(43)—the aggravated felony enumerating statute—

“invites inquiry into ‘the underlying facts of the case.’”

Nijhawan, 523 F.3d at 393 (evaluating underlying facts to

determine whether fraud conviction constituted aggravated

felony). In particular, a categorical approach does not apply to

subsections that include “‘in which’ or other analogous

qualifying language.” Id. at 391. In these cases, our inquiry is

not limited to “facts actually and necessarily found beyond a

reasonable doubt by a jury or judge.” Id. at 391-96 (citations and

internal quotation marks omitted). Accordingly, we may “look[]

to a wider array of records that possess a high indicia of

reliability,” including records not permitted by the modified

categorical approach. Id. at 399. 

In Garcia, we determined that 35 Pa. Stat. Ann. § 780-

113(a)(30) is divisible because it describes “three distinct

offenses: manufacture, delivery, and possession with intent to

deliver or manufacture.” 462 F.3d at 293 n.9. Thus, we held

that the formal categorical approach does not limit our

application of the illicit trafficking element test to this statute.

Id. (noting that “it appears that the section may encompass

conduct that does not involve trading or dealing”); see also
 In Jeune, we applied Garcia and looked beyond the statutory 5

definition in applying the hypothetical federal felony test to 35

Pa. Stat. Ann. § 780-113(a)(30). Jeune, 476 F.3d at 205. It is

not clear that the Pennsylvania statute is disjunctive in a sense

that is relevant to the inquiry under the hypothetical federal

felony test. See Singh, 383 F.3d at 163 (holding that review was

limited to formal categorical approach where the statute of

conviction was not disjunctive in a meaningful way). What is

clear is that there is no basis in our precedent for looking beyond

the modified categorical approach in applying the hypothetical

federal felony test.

12

Jeune, 476 F.3d at 202. Accordingly, in Garcia we looked to 5

the charging instrument to determine that Garcia pled guilty to

selling marijuana to an undercover police officer. 462 F.3d at

293. Thus, we found that Garcia had been convicted of an illicit

trafficking offense and was an aggravated felon. Id.

In Garcia, we concluded that we should not go beyond

the modified categorical approach, as we did in Nijhawan,

because we were not directed to do so by the aggravated felony

enumerating statute. See Garcia, 462 F.3d at 292; Singh, 383

F.3d at 161 (“[T]he hypothetical federal felony trilogy (Steele,

Gerber, and Wilson) asks only whether the elements of a federal

criminal statute can be satisfied by reference to the actual statute

of conviction; this presents no invitation to depart from Taylor’s

formal categorical approach and examine the underlying

facts.”). Thus, we may only look beyond the statutory definition

to the extent permitted by the modified categorical approach and

Taylor-Shepard. Cf. Singh, 383 F.3d at 163 (noting that in cases

involving disjunctive statutes of conviction “we have not taken

the further step of looking to facts outside the charging

instrument or further plea”). We may not open our review to

other records or inquire into the factual basis for the underlying

conviction as we did in Nijhawan. Therefore, the BIA’s inquiry

should have been limited to the materials described in TaylorShepard. 

Indeed, the Government seems to concede that the

modified categorical approach and the Taylor-Shepard

framework govern this case. Nonetheless, the Government

argues that the criminal information, including charges in counts

of which Evanson was not convicted, and the judgment of

sentence are appropriate records to consider under the modified
 In this case, the potential sources of information about 6

Evanson’s conviction are (1) the criminal complaint and its

incorporated “affidavit of probable cause”; (2) the counts of the

criminal information to which Evanson pled guilty; (3) other

counts in the criminal information; (4) the judgment of sentence;

and (5) Evanson’s testimony before the I.J. The Government

does not argue that we may consider Evanson’s testimony before

the I.J.

 The Government also seems to urge the Court to consider 7

the allegations in the affidavit of probable cause attached to the

criminal complaint. However, because the criminal complaint

was superceded by the criminal information in this case, it is not

the relevant charging document and is not an appropriate source

under the modified categorical approach.

 The judgment of sentence also was not an appropriate basis 8

for determining the amount of marijuana involved in Evanson’s

offense for a related reason. 8 U.S.C. § 1229a(c)(3)(A) requires

that the Government prove removability by clear and convincing

evidence. The amount recited in the judgment of sentence was

not itself necessarily based on clear and convincing evidence.

13

categorical approach. The Government is correct that the 6

criminal information, as the relevant charging document, is an

appropriate record to consider. However, a court applying the

modified categorical approach may only consider the charging

document to the extent that the petitioner was actually convicted

of the charges. Cf. Steele v. Blackman, 236 F.3d 130, 136-37 7

(3d Cir. 2001) (holding that to find that an alien was convicted

of an aggravated felony “there must be a judicial determination

beyond a reasonable doubt of every element of a felony or a

constitutionally valid plea that encompasses each of those

elements”); see also Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir.

2006) (declining to consider the total loss amount stated in a

multi-count indictment where Alaka pled guilty to only a single

count with a lower loss amount). Accordingly, we may consider

only the possession with intent to distribute and conspiracy to

possess with intent to distribute counts.

Further, we may not look to factual assertions in the

judgment of sentence. Facts a judge considers in making a

discretionary sentencing determination are not necessarily

admitted by the defendant. Cf., Commonwealth v. Lane, 941 8
14

A.2d 34, 38 (Pa. Super. Ct. 2008). Accordingly, factual

assertions contained only in a judgment of sentence may not be

considered under the modified categorical approach. See In re

Velazquez-Herrera, 24 I. & N. Dec. at 516-17 (holding that

factual notations on Washington judgment of sentence did not

“constitute proof of defendant’s ‘convicted conduct’”); see also

United States v. Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir.

2005) (holding that “district court erred in relying exclusively on

the abstract of judgment to determine whether the conviction

under [California law] was a ‘drug trafficking offense,’” but that

abstract of judgment might be permissible in combination with

charging document); United States v. Navidad-Marcos, 367 F.3d

903, 909 (9th Cir. 2004) (holding that California abstract of

judgment may not be used as only source of information under

modified categorical approach because, among other things, the

abstract of judgment “does not contain information as to the

criminal acts to which the defendant unequivocally admitted in

a plea colloquy before the court”).

In this case, the only parts of the current record

appropriately before the BIA were the statutory definition and

those counts of the criminal information to which Evanson pled

guilty. Thus, the only information—beyond the statutory

definition—properly in the record is that Evanson’s

Pennsylvania offense involved marijuana. The BIA erred in

considering the amount of marijuana involved in Evanson’s

offense, information contained only in the judgment of sentence

and his testimony before the IJ. Our holding in Jeune that a

marijuana conviction under 35 Pa. Stat. Ann. § 780-

113(a)(30)—without proof of the amount involved or

remuneration—is analogous to a federal misdemeanor therefore

controls the outcome of the hypothetical federal felony test in

this case. For this reason, we hold that the BIA also erred in its

ultimate conclusion that Evanson’s Pennsylvania conviction was

a hypothetical federal felony and thus constituted an aggravated

felony. 

III.

We will grant the petition and remand to the BIA to

consider in the first instance whether Evanson’s offense

constituted an aggravated felony under the illicit trafficking
 Although we conclude that the BIA erred in considering 9

more than the statutory definition and the charging document,

and this conclusion—in addition to our holding in Jeune—also

suggests that the Government cannot meet its burden under the

illicit trafficking element test, we remand because the BIA did

not consider this issue in its previous ruling.

15

element test in light of Garcia and Jeune.9