RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 11a0077p.06 

### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

_________________

J ORGE G ARCIA , Petitioner,

v. E RIC H. H OLDER , J R ., Attorney General, Respondent. X - - - -> , - - - N No. 09-4390

On Petition for Review from the Board of Immigration Appeals. No. A071 857 678. Decided and Filed: March 28, 2011 Before: GILMAN, GIBBONS, and COOK, Circuit Judges.

_________________ COUNSEL ON BRIEF: Kreuza Lako, HILF & HILF, PLC, Franklin, Michigan, for Petitioner. Anthony P. Nicastro, UNITED STATES DE PARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________ OPINION

_________________ RONALD LEE GILMAN, Circuit Judge. Pe titioner Jorge Garcia faces removal to Mexico, his home country. Although he applied for cancellation of removal, the Board of Immigration Appeals (BIA) determinedthat he is inelig ible for this relief because his state drug conviction for the attempted possession of marihuana with the intent to deliver the drug constitutes an “a ggravated felony” under the Immigration and Nationality Act (INA). The BIA ruled that hi s state conviction is an aggravated felony because it corresponds to a felony drug crime under federal law. Garcia challenges the

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BIA’s determination, arguing that his state conviction is not an aggravated felony because it corresponds to a misdemeanor drug crime under federal law rather than a felony drug crime. He also argues that he is entitled to a waiver of inadmissibility and relief due to the ineffective assistance of his counsel during the state drug proceeding. For the reasons set forth below, we DENY Garcia’s petition for review.

I. BACKGROUND Garcia became a lawful permanent resi dent of the United States in 1995. In 1998, he pled guilty to the attempted possession of marihuana with the intent to deliver the drug, in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii). He was sentenced to a fine and costs totaling $1,150. The Department of Homeland Security (DHS) began removal proceedings against him in 2005, alleging that he was removable because, among other things, he was an alien believed to be an illicit trafficker ina controlled substance and an alien who had been convicted of a controlled-substan ce offense under 8 U.S.C. §§ 1182(a)(2)(C) and 1182(a)(2)(A)(i)(II), respectively. Garcia admitted the factual allegations and conceded that he was removable as an alien convicted of a controlled-substance offense. But he sought a waiver of inadmissibility for his state drug conviction under 8 U.S.C. § 1182(h) and cancellation of removal under 8 U.S.C. § 1229b. In July 2008, the immigration judge (IJ) c oncluded that Garcia should be denied both of these forms of relief. A § 1182(h) waiver for drug offenses is available only for a single offense of simple possession of 30 grams or less of marihuana. 8 U.S.C. § 1182(h). Because Garcia pled guilty to something more than simple possession of marihuana, the IJ reasoned that Garcia was not eligible for a § 1182(h) waiver. Cancellation of removal, Garcia’s other a sserted basis for relief, is not available to an alien who, among other things, has been convicted of an offense deemed an aggravated felony under federal law. 8 U.S.C. § 1229b(a)(3). The IJ concluded that Garcia was not eligible for cancellation of removal because Garcia’s state conviction constituted an aggravated fel ony due to the fact that (1) the conviction contained aNo. 09-4390 Garcia v. Holder Page 3

trafficking element—namely, the intent to deliver—and (2) the elements of the state conviction would support a felony conviction under 21 U.S.C. § 841(a)(1) and punishment under 21 U.S.C. § 841(b)(1)(D). And even if Garcia were eligible for cancellation of removal, the IJ determined that Garcia had not demonstrated that he was entitled to such discretionary relief. The BIA agreed. Citing Lopez v. Gonzales , 549 U.S. 47, 55 (2006), the BIA reasoned that Garcia’s state offense would be an aggravated felony under the “categorical approach” if the elements of his state offense corresponded to the elements of a federal felony offense under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. Because the BIA found that Garcia’s state offense corresponded to the federal felony offense of marihuana distribution, which was punishable by up to five years’ imprisonment under 21 U.S.C. § 841(b)(1)(D), it concluded that Garcia’s offense should be considered an aggravated felony. Th e BIA rejected Garcia’s argument that the federal offense comparable to his state o ffense was instead the misdemeanor provision of 21 U.S.C. § 841(b)(4). According to the BI A, that provision is not a discrete offense, but rather a mitigating sentencing provision th at Garcia had to prove was applicable by showing that his offense involved only a small amount of marihuana without any remunerative exchange. Because the absence of these mitigating facts—namely, a small amount of marihuana and no remunerative exchange—would not need to be established by the government in order to convict Garcia of the federal felony offense, the BIA reasoned that drug quantity and remuneration are not elements of that offense. This led it to conclude that Garcia’s state offense should be deemed an aggravated felony because the elements of that offense corresponded to the elements of the felony drug crime under 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846. Garcia timely appealed the BIA’s decision.No. 09-4390 Garcia v. Holder Page 4

II. JURISDICTION We have jurisdiction under 8 U.S.C. § 1252 because that statute provides for judicial review of removal orders. See 8 U.S.C. § 1252(a)(1), (b). But because Garcia is considered a criminal alien under 8 U.S. C. § 1252(a)(2)(C), our jurisdiction is limited to constitutional claims or questions of law raised in Garcia’s petition. Id

. § 1252(a)(2)(C), (D). The primary issue raisedin Garcia’s petition is whether his state conviction constitutes an aggravated felony unde r federal law. This is a legal question. See Patel v. Ashcroft , 401 F.3d 400, 407 (6th Cir. 2005). We therefore have jurisdiction to review the issue.
III. ANALYSIS A. The aggravated-felony issue Because the BIA rendered its own opinion in this case rather than simply adopting the IJ’s decision, we concentrate our review on the analysis of the BIA. See Koulibaly v. Mukasey , 541 F.3d 613, 619 (6th Cir. 2008). We review de novo the legal question of whether Garcia’s state drug c onviction amounts to an aggravated felony under the INA. See Patel , 401 F.3d at 407. Although we generally defer to reasonable BIA interpretations of immigration statutes, we owe no deference to the BIA on this question because the answer depends on interpreting state and federal criminal statutes. Id

. An alien may apply for discretionary cancellation of removal if, among other things, the alien “has not been convictedof any aggravated felony.” 8 U.S.C. § 1229b(a)(3). All of the offenses listed in 8 U.S.C. § 1101(a)(43) are deemed aggravated felonies, one of which is “illicit trafficking in a contro lled substance . . . , including a drug trafficking crime” as defined in 18 U.S.C. § 924(c). 8 U.S.C. § 1101(a)(43)(B). Section 924(c) in turn de fines a drug-trafficking crime as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” A state drug offense is considered an aggravated felony if it falls within the general term “illic it trafficking.” Lopez v. Gonzales , 549 U.S. 47, 57 (2006). “IllicitNo. 09-4390 Garcia v. Holder Page 5

trafficking” is not statutorily defined, but the Supreme Court has reasoned that “ordinarily ‘trafficking’ means some sort of commercial dealing.” Id . at 53. Neither the BIA nor the government contend, however, that Garcia’s state offense counted as an aggravated felony under this route because the statute he violated does not require commercial dealing. See Mich. Comp. Laws §§ 333.7401(2)(d)(iii) and 333.7105(1). The other way that a state drug offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) is where the state offense is considered a drug-trafficking crime, which occurs if the state offense “proscribes conduct punishable as a felony” under the CSA. Lopez , 549 U.S. at 60. In other words, “a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony.” Id. at 57. The CSA defines a felony as a crime “to which it assigns a punishment exceeding one year[s’] imprisonment.” Id . at 56 n.7. An alien convictedof such an offense is not eligible for cancellation of removal. Carachuri-Rosendo v. Holder , 130 S. Ct. 2577, 2589 (2010) (citing 8 U.S.C. § 1229b(a)(3)). Th is framework for determining whether a state drug offense is considered a drug-trafficking crime has sometimes been called the “hypothetical federal felony” rule. Rashid v. Mukasey , 531 F.3d 438, 442-43 (6th Cir. 2008). Under this rule, we use the “categorical approach” to determine if a state offense constitutes an aggravated felony. Id. at 447. In doing so, we may “look only to the fact of conviction and the statutory definition of the prior offense,” id . (quoting Taylor v. United States , 495 U.S. 575, 602 (1990)), and may not“look through to the defendant’s actual criminal conduct,” id . (quoting United States v. Montanez , 442 F.3d 485, 489 (6th Cir. 2006)). The elements of the crime are the most important factors to consider. Montanez , 442 F.3d at 492. Garcia pled guilty to and was sentencedfor attempted possession with intent to deliver marihuana, in violation of Mi ch. Comp. Laws § 333.7401(2)(d)(iii). The elements of that offense are an attempt to possess with intent to deliver less than five kilograms of the drug. Id. § 333.7401(1), (2)(d)(iii). No commercial transaction is required under the Michigan statute because “deliver” is defined as “the actual,No. 09-4390 Garcia v. Holder Page 6

constructive, or attempted transfer from 1 person to another of a controlled substance.” Id. § 333.7105(1). The CSA similarly prohibits a person from “possess[ing] with intent to . . . distribute . . . a controlled substance.” 21 U. S.C. § 841(a)(1). Marihuana is a controlled substance under federal law. 21 U.S.C. §§ 802(6), 812 Schedule I(c)(10). The term “distribute” is defined as “to deliver,” and “deliver” is a noncommercial term that means “the actual, constructive, or attempted transfer of a controlled substance.” 21 U.S.C. § 802(8), (11); accord United States v. Wallace , 532 F.3d 126, 129 (2d Cir. 2008) (collecting cases—including United States v. Vincent , 20 F.3d 229 (6th Cir. 1994)—holding that distribution within the meaning of 21 U.S.C. § 841(a) can occur without a sale). And “attempts . . . to commit any offense defined in [the CSA] shall be subject to the same penalties as those pr escribed for the offense, the commission of which was the object of the attempt.” 21 U.S.C. § 846. Although the precise amount of marihuanainvolved in Garcia’s case is unknown, the attempt to possess withthe intent to deliver any amount of marihuana less than 50 kilograms is punishable by up to five years in prison. 21 U.S.C. § 841(b)(1)(D). This means that the elements of Garcia’s state offense presumptively correspond to the elements of the federal felony offense of attempting to possess with intent to deliver marihuana. His state conviction should theref ore be considered an aggravated felony. See Lopez , 549 U.S. at 57.

But Garcia contends that his state offe nse does not correspond to a federal felony because an exception in 21 U.S.C. § 841(b)(4) provides that anyone who violates § 841(a) by “distributing a small amount of marihuana for no remuneration” shall be punished as if he or she engaged in simple possession of the drug, a misdemeanor punishable by not more than one year inprison under § 844. Garcia claims that § 841(b)(4) applies here because his state offense fails to include remuneration as an element. He also notes that his state offense “deals with the smallest amount of marijuana that is provided for in Michigan law” (under five kilograms), which implies that § 841(b)(4) is applicable because the government failed to show that the amount ofNo. 09-4390 Garcia v. Holder Page 7

marihuana involved was more than small. Inessence, Garcia is arguing that the CSA’s default provision for punishing possession with intent to distribute an undetermined amount of marihuana is the misdemeanor excep tion of § 841(b)(4), and that this default applies unless the government disproves § 841(b)(4)’s applicability by showing either that more than a small amount of marihuana was involved or that a remunerative exchange occurred. The problem with Garcia’s argument is that a federal prosecutor trying to have a defendant punished for a drug offense under § 841(b)(1)(D) does not need to prove the absence of the § 841(b)(4) elements. This court has ruled in United States v. Bartholomew , 310 F.3d 912, 925 (6th Cir. 2002), that the amount of marihuana involved does not need to be proven to the jury in order to convict unde r § 841(a) and to punish under § 841(b)(1)(D). The amount of marihuana, assuming that it is under 50 kilograms, is therefore not an element of the felony drug offense. Instead, where the amount of marihuana is undetermined—as it is in this case—§ 841(b)(1)(D) is the default provision for punishing possession of the drug with the intent to distribute, not § 841(b)(4). Id. ; see also United States v. Hamlin , 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that § 841(b)(1)(D) is the default provision for possessing an undetermined amount of marihuana with the intent to distribute the drug). So the elements of Garcia’s state offense establish a felony offense under 21 U.S.C. § 841. The First Circuit, reasoning along similar lines, has reached the same conclusion. See Julce v. Mukasey , 530 F.3d 30, 34-36 (1st Cir. 2008). In Julce , the alien argued that his state conviction for possession with the in tent to distribute marihuana should not be punishable as a CSA felony because it would be treated as a misdemeanor under § 841(b)(4). Id . at 34. The First Circuit rejected this argument, reasoning that § 841(b)(4) “does not create a stand-alone misdemeanor offense,” but is rather “best understood as a mitigating sentencing provision.” Id . at 35. To avoid punishment under § 841(b)(1)(D), which the First Circuit found was the default-punishment provision, “the defendant bears the burden of producing mitigating evidence in order to obtain misdemeanor treatment under § 841(b)(4).” Id . Julce failedNo. 09-4390 Garcia v. Holder Page 8

to satisfy that burden. Id . at 35-36. Because the elements of Julce’s state conviction, “if proven in a federal prosecution under § 841, would establish a felony offense,” the court determined that his conviction constituted an aggravated felony. Id . at 35. We acknowledge that the Second and Third Circuits have decided this precise issue the other way, but we are not persuaded by their analysis. See Martinez v. Mukasey , 551 F.3d 113 (2d Cir. 2008); Jeune v. Attorney Gen. , 476 F.3d 199 (3d Cir. 2007). Martinezinvolved a New York conviction for th e sale of marihuana in the fourth degree. Unlike Garcia’s offense that could have encompassed as much as 5 kilograms of marihuana, Martinez’s offense likely i nvolved between 2 and 25 grams of marihuana (less than one ounce). The offense also di d not require remunerative exchange as an element of the offense. In applying the categorical approach, Martinezrelied on another Second Circuit case establishing that “only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant” to the categorical approach. Id

. at 118 (quoting Gertsenshteyn v. United States Dep’t of Justice , 544 F.3d 137, 143 (2d Cir. 2008)). Since the minimum criminal conduct under the New York statute involved only two grams of marihuana, the court concl uded its analysis as follows: “[W]e look no further than to the fact that Martinez’s conviction could have been for precisely the sort of nonremunerative transfer of small qua ntities of marihuana that is only a federal misdemeanor under 21 U.S.C. § 841(b)(4).” Id. at 120. As in the present case, the government in Martinezargued “that it was Martinez’s burden to prove that his state convic tion would be punishable under 21 U.S.C. § 841(b)(4).” Id . at 121. But the Second Circuit rejected this argument because its interpretation of the categorical approach—a focus on the “minimum criminal conduct necessary to sustain a conviction under a gi ven statute”—meant that Martinez did not have “to prove how little marihuana he had or the nature of the transfer, so long as his conviction could have been based on a nonre munerative transfer of a small amount of marihuana.” Id . The court also observed that “[p]lacing the burden on Martinez, instead, necessarily requires looking into evidence of Martinez’s actual conduct,” which runs counter to the policy behind the categorical approach of avoiding mini-trials onNo. 09-4390 Garcia v. Holder Page 9

whether a specific defendant’s conduct “was less or more culpable than what his actual conviction required.” Id.

In Jeune , the Third Circuit reached the same conclusion using similar reasoning. Jeune , 476 F.3d at 205. Jeune pled guilty under a Pennsylvania statute that prohibited the manufacture, delivery, or possession with intent to manufacture or deliver marihuana. Id. at 200-201. Based upon the statute and the record of conviction, the court determined that Jeune’s offense i nvolved less than two pounds of marihuana, but could not determine that his offense involved remuneration. Id . at 204-05. The court also interpreted the categorical approach as requiring the court to “assume that Jeune’s conduct was only the minimum necessary to comport with the statute and record.” Id

. at 204 (citations omitted). Because the least culpable conduct in Jeune involved a small amount of marihuana and no remunerative exchange, Jeune’s state offense was deemed punishable under the misdemeanor provision of 21 U.S.C. § 841(b)(4) and therefore not an aggravated felony. See id. at 205. Although the opinions in Martinezand Jeune deserve respect, the principles established in Bartholomew cut against them, and Bartholomewis a controlling Sixth Circuit case. Bartholomewconcludes that the amount of marihuana need not be proven to convict under § 841(a) or to punish under § 841(b)(1)(D), and further holds that § 841(b)(1)(D) establishes the default punishment for cases where the amount of marihuana is undetermined. United States v. Bartholomew , 310 F.3d 912, 925 (6th Cir. 2002). Because “a state offense whose elem ents include the elements of a felony punishable under the CSA is an aggravated felony,” Lopez , 549 U.S. at 57, and because the amount of marihuana is not an element of the relevant federal felony, Garcia’s state conviction is an aggravated felony under the categorical approach. This would be the case even if we were to assume that th e conduct underlying his state conviction was the minimum criminal conduct necessary to sustain the conviction. Moreover, although Bartholomew is a criminal-sentencing case rather than an immigration case, this court has declined to interpret a drug-based aggrav ated felony differently in immigration and criminal-sentencing contexts. See Rashid v. Mukasey , 531 F.3d 438, 442 (6th Cir. 2008);No. 09-4390 Garcia v. Holder Page 10

United States v. Palacios-Suarez , 418 F.3d 692, 697 (6th Cir. 2005). Garcia’s conviction therefore constitutes an aggravated felony under the INA. B. Waiver under 8 U.S.C. § 1182(h) The next issue is whether Garcia is eligible for a waiver of inadmissability. A § 1182(h) waiver for drug offenses is available only for a single offense of simple possession of 30 grams or less of marihuana. 8 U.S.C. § 1182(h). Because Garcia pled guilty to something more than simple possessi on of marihuana, he is statutorily ineligible for a § 1182(h) waiver.
C. Ineffective assistance of counsel Finally, Garcia asserts that his criminal defense attorney failed to inform him of the immigration consequences of pleading guilty to the state drug offense. He contends that this failure by his attorney amounted to constitutionally deficient representation based upon the Supreme Court holding in Padilla v. Kentucky , 130 S. Ct. 1473, 1486-87 (2010), that attorneys must inform their c lients whether a guilty plea carries a risk of deportation. We cannot reach the merits of Garcia’s argument, however, because his claim is not a proper one in immigration proceedings. As this court held in Al-Najar v. Mukasey , 515 F.3d 708, 714 (6th Cir. 2008), “[a]n alien petitioner may not collaterally attack a criminal conviction that serves as the basis for the DHS’s initiation of removal proceedings against the alien, regardless of whether the attack is raised in a habeas petition or, as it is here, on review from a decision of the BIA.” We further note that Padilla’s ineffective-assistance-of-counsel claim arose in postconviction proceedings rather than in immigration proceedings. Padilla , 130 S. Ct. at 1478.

IV. CONCLUSION For all of the reasons set forth above, we DENY Garcia’s petition for review.