FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VENTURA LOPEZ-JACUINDE, a.k.a. 

Ventura Jacuinde Lopez, No. 07-72046 Petitioner,

Agency No.

v.  A041-118-057

ERIC H. HOLDER JR., Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 12, 2010*

San Francisco, California

Filed April 12, 2010

Before: Betty B. Fletcher, Richard R. Clifton, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge B. Fletcher

*The panel unanimously concludes that this case is suitable for decision

without oral argument. See Fed. R. App. Proc. 34(a)(2). 

5441
COUNSEL

James Todd Bennett, El Cerrito, California, for the petitioner.

Ari Nazarov, U.S. Department of Justice, Civil Division,

Washington, D.C., for the respondent. 

LOPEZ-JACUINDE v. HOLDER 5443
OPINION

B. FLETCHER, Circuit Judge:

Petitioner Ventura Lopez-Jacuinde seeks review of a decision by the Board of Immigration Appeals (“BIA”) that held

that his state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a

“drug trafficking crime” which constitutes an “aggravated felony” under federal law, rendering him statutorily ineligible

for cancellation of removal. Lopez-Jacuinde argues that “drug

trafficking crime,” as defined by the relevant federal statute,

requires the use of a firearm and thus the state criminal statute, which has no such element, is broader than the federal

statute. He argues further that the state criminal statute is

broader than the corresponding federal crime because the federal crime imposes a requirement, not found in the state statute, as to the minimum amount of pseudoephedrine possessed

by the defendant. We disagree and deny the petition for

review.

I. Facts and Procedural History

On February 10, 2005, Lopez-Jacuinde, a citizen of Mexico, was convicted of the offense of possession of pseudoephedrine with intent to manufacture methamphetamine or

any of its analogs in violation of California Health and Safety

Code § 11383(c)(1).1 He was served with a notice to appear

for removal proceedings that alleged he had committed an

aggravated felony.2 He filed an application for cancellation of

1Section 11383 was amended after Lopez-Jacuinde’s conviction in

2005. Likewise, 21 U.S.C. §§ 802, 830(b)(3), also relevant to this appeal,

were amended during this period. Citations to these statutes are to the versions effective in 2005. 

2Conviction of an aggravated felony renders an alien removable and

ineligible for cancellation of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii);

8 U.S.C. § 1229b(a)(3). 

5444 LOPEZ-JACUINDE v. HOLDER
removal and a motion to strike the aggravated felony charge.

The Immigration Judge (“IJ”) denied Lopez-Jacuinde’s

motion to strike and ordered him removed from the United

States. The BIA dismissed Lopez-Jacuinde’s petition for

review and agreed with the IJ that Lopez-Jacuinde had been

convicted of an aggravated felony. The BIA held that a “drug

trafficking crime” does not require the use of a firearm, and

that because Lopez-Jacuinde was convicted of possession of

pseudoephedrine with intent to manufacture methamphetamine, any federal requirement as to the amount of pseudoephedrine possessed was inapplicable.

II. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252 to review final

removal orders issued by the BIA. However, we lack jurisdiction to review an order of removal against an alien removable

for having committed an aggravated felony. See 8 U.S.C.

§ 1252(a)(2)(C); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905,

909 (9th Cir. 2004). “Nonetheless, this Court retains jurisdiction to determine its jurisdiction, which includes determining

whether a particular offense constitutes an offense governed

by the jurisdiction-stripping provisions.” Cazarez-Gutierrez,

382 F.3d at 909. We may thus review whether LopezJacuinde’s conviction constituted an aggravated felony. This

court reviews de novo the question of whether a particular

offense constitutes an aggravated felony for which an alien is

subject to removal. Id.

III. Discussion

[1] We determine whether a state law conviction is an

aggravated felony using either the categorical or modified categorical approach set forth in Taylor v. United States, 495

U.S. 575, 600-02 (1990) and Shepard v. United States, 544

U.S. 13, 20-21 (2005). Pelayo-Garcia v. Holder, 589 F.3d

1010, 1012 (9th Cir. 2009). “Under the categorical approach,

we compare the elements of the statute of conviction with a

LOPEZ-JACUINDE v. HOLDER 5445
federal definition of the crime to determine whether the conduct proscribed by the statute is broader than the generic federal definition.” Id. (quotation marks omitted).

A. Use of a Firearm Is Not Required for a State Conviction to Constitute an Aggravated Felony as a

“Drug Trafficking Crime”

[2] An “aggravated felony” includes “illicit trafficking in

a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as

defined in section 924(c) of title 18, United States Code).” 8

U.S.C. § 1101(a)(43)(B). The Ninth Circuit has interpreted

this text as providing two analytic routes through which a

state drug felony may be classified as an aggravated felony:

(1) if the state crime contains a “trafficking element,” it is an

aggravated felony under the “illicit trafficking in a controlled

substance” prong of § 1101(a)(43)(B); or (2) if the state

offense would be punishable as a felony under federal drug

laws, it is an aggravated felony under the “including a drug

trafficking crime” prong of that section. See Rendon v.

Mukasey, 520 F.3d 967, 974 (9th Cir. 2008). It is this second

route, specifically the reference to 18 U.S.C. § 924(c) as containing the definition of “drug trafficking crime,” that is at

issue in this appeal. 

[3] “Drug trafficking crime” is expressly defined in 18

U.S.C. § 924(c)(2) as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled

Substances Import and Export Act (21 U.S.C. 951 et seq.), or

chapter 705 of title 46.”

3

 18 U.S.C. § 924(c)(1), however, provides for an enhanced punishment for the use or possession of

a firearm in relation to a drug trafficking crime. LopezJacuinde maintains that despite the explicit definition of “drug

3Lopez-Jacuinde’s state offense is punishable as a federal crime under

21 U.S.C. § 841(c), possession of a listed chemical with intent to manufacture a controlled substance. 

5446 LOPEZ-JACUINDE v. HOLDER
trafficking crime” in § 924(c)(2), the relevant definition of

“aggravated felony” found in 8 U.S.C. § 1101(a)(43)(B)

includes the firearm element of § 924(c)(1) in its reference to

the definition of “drug trafficking crime” in § 924(c). Therefore, he argues, Congress must have intended that to constitute an “aggravated felony” a “drug trafficking crime” must

also involve use or possession of a firearm.

[4] This argument is unpersuasive. The text of 8 U.S.C.

§ 1101(a)(43)(B) refers unambiguously to the definition of

drug trafficking crime found in § 924(c), despite containing a

reference to § 924(c) as a whole. Paragraph 924(c)(2) in turn

provides the definition of “drug trafficking crime” for all of

subsection (c), with no reference to a firearm element. This

definition is set off in a separate paragraph from § 924(c)(1),

which by its terms is only an enhanced punishment provision.

Thus, regardless of whether a defendant’s conduct involves

the use of a firearm, it is by reference to § 924(c)(2) that a

court will determine whether the conduct constitutes a drug

trafficking crime. In fact, because § 924(c)(1) itself applies to

drug trafficking crimes, a definition of “drug trafficking

crime” that required the use of a firearm would render that

paragraph strangely self-referential and confusingly circular.4

[5] We note that although § 1101(a)(43)(B) was amended

in 1994—and that prior to these amendments

§ 1101(a)(43)(B) referred with more precision to paragraph

(2) of § 924(c)—this does not change our conclusion. As

cogently explained by the Tenth Circuit in United States v.

Valenzuela-Escalante, 130 F.3d 944, 946-47 (10th Cir. 1997),

the amendment to § 1101(a)(43)(B) was not intended to

4Along similar lines, we observe that § 924(c) paragraphs (3) and (4)

contain definitions of “crime of violence” and “brandish,” neither of

which can sensibly be incorporated into the definition of “drug trafficking

crime.” This reinforces our conclusion that the general reference to

§ 924(c) was not intended to distract our attention from the definition

found in paragraph (2)—a definition that applies by its own terms for all

of § 924(c). 

LOPEZ-JACUINDE v. HOLDER 5447
restrict the crimes that constitute aggravated felonies. We are

further persuaded by the reasoning of Valenzuela-Escalante,

which held that a drug trafficking crime need not involve the

use of a firearm to constitute an aggravated felony. See id. We

hold that the use of a firearm is not a necessary element of a

“drug trafficking crime” for the purpose of determining

whether an alien has been convicted of an “aggravated felony.”

B. The Federal Crime Corresponding to § 11383(c)(1)

Does Not Require Possession of a Minimum

Amount of Pseudoephedrine

[6] Lopez-Jacuinde also contends that his conviction for

violating California Health and Safety Code § 11383(c)(1) is

not a categorical aggravated felony because the state statute

proscribes possession of any amount of pseudoephedrine with

intent to manufacture methamphetamine, and the corresponding federal crime requires proof that the defendant possessed

more than a certain amount of pseudoephedrine. This argument is without merit because the federal offense corresponding to Lopez-Jacuinde’s state conviction has no such

requirement as to amount.

[7] Lopez-Jacuinde’s argument relies on an attempt to

incorporate federal regulatory provisions requiring that retail

distributors keep records of high-quantity pseudoephedrine

transactions into separate federal provisions criminalizing

possession of pseudoephedrine with intent to manufacture

methamphetamine. Our opinion in United States v. Kim, 449

F.3d 933, 937-38 (9th Cir. 2006), describes the federal

scheme in some detail. As Kim explains, the “upshot [of the

record-keeping provisions] is that over-the-counter sales of

pseudoephedrine had to be recorded if the items purchased

totaled [nine] grams or more and (1) were not in blister packs

or (2) were in packages of more than three grams per package.”

5

5The threshold for triggering the reporting requirements was lowered in

the year 2000 from twenty-four grams to nine grams. 

5448 LOPEZ-JACUINDE v. HOLDER
Id. at 938. In contrast to the record-keeping scheme, 21

U.S.C. § 841(c)(1) independently criminalizes possession of a

listed chemical with intent to manufacture a controlled substance. Lopez-Jacuinde contends that the court must read the

quantity requirements in the record-keeping provisions applicable to retail distributors into elements of the crime of possession with unlawful intent.

[8] We have already rejected this argument in a similar

context. See id. at 938-41. The defendant in Kim argued that

the quantity requirements in the record-keeping scheme

should apply to federal criminal provisions punishing the sale

of pseudoephedrine by a person knowing or having reasonable cause to believe it would be used to manufacture a controlled substance. See id. at 939. We held that the thresholds

as to amount set by the record-keeping requirements were not

relevant to the criminal provisions. See id. at 939-40. The

same reasoning is controlling here. 

IV. Conclusion

[9] We find no error in the BIA’s determination that

Lopez-Jacuinde was convicted of an aggravated felony.

Because the BIA correctly applied the relevant statutes, there

was no due process violation. 

PETITION DENIED.

LOPEZ-JACUINDE v. HOLDER 5449