IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60826

ADRIAN PHILLIP MONCRIEFFE, 

Petitioner 

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, 

Respondent 

Petition for Review of an Order of the 

Board of Immigration Appeals

Before JONES, Chief Judge, and HAYNES, Circuit Judge and CRONE,

District Judge.*

EDITH H. JONES, Chief Judge:

Adrian Moncrieffe petitions for review of a removal order of the Board of

Immigration Appeal’s (“BIA”). After he pled guilty to possessing marijuana with

intent to distribute in Georgia, the Department of Homeland Security (“DHS”)

charged Moncrieffe with being removable for this crime, which it contends

should be considered a felony under the Controlled Substances Act (“CSA”) and

an “aggravated felony” under immigration law. See 8 U.S.C. § 1227(a)(2)(A)(iii). 

The immigration judge (“IJ”) agreed, and on appeal, the BIA endorsed the felony

United States Court of Appeals

Fifth Circuit

F I L E D

November 8, 2011

Lyle W. Cayce

Clerk

 District Judge, Eastern District of Texas, sitting by designation. *

Case: 10-60826 Document: 00511659356 Page: 1 Date Filed: 11/08/2011
No. 10-60826

classification and dismissed Moncrieffe’s appeal. For the following reasons we

DENY the Petition for Review.

BACKGROUND

Moncrieffe, a native of Jamaica, entered the United States legally as a

permanent resident in 1984 at the age of three. Moncrieffe pled guilty to

“Possession of Marijuana With Intent to Distribute” under Georgia law in 2008

and was sentenced to five years probation. Because of his guilty plea, DHS

charged Moncrieffe with being removable under both 8 U.S.C. § 1227(a)(2)(B)

relating to controlled substances offenses and under § 1227(a)(2) “as an

aggravated felon” because the conviction was for a “drug trafficking crime” as

defined by 18 U.S.C. § 924(c). DHS produced the Georgia judgment and 1

charging document at the immigration hearing in support of its position. The

IJ ruled that the state conviction was analogous to a federal felony under

21 U.S.C. § 844(a)(1) and that Moncrieffe was thus removable as an aggravated

felon. 

Moncrieffe appealed to the BIA arguing that the Georgia crime should not

be considered an aggravated felony. Moncrieffe argued that GA. CODE §16-13-

30(j) punishes acts that are equivalent to misdemeanors under the CSA. 

Specifically, distribution of “a small amount of marijuana for no remuneration”

falls under the Georgia provision but is only a misdemeanor under 21 U.S.C.

§ 841(b)(4). The charging document and Georgia judgment did not indicate how

much marijuana Moncrieffe possessed. Because the government did not prove

that there was remuneration or more than a small amount of marijuana,

BIA did not rule on, and we do not consider, whether the Georgia conviction

1

constituted a “controlled substances” violation for purposes of removal.

2

Case: 10-60826 Document: 00511659356 Page: 2 Date Filed: 11/08/2011
No. 10-60826

Moncrieffe argued that his conviction should be considered a federal

misdemeanor. In an unpublished Fifth Circuit case, Jordan v. Gonzales, 204 F.

App’x 425 (5th Cir. 2006), this court held that a conviction for possession of

marijuana with intentto distribute was considered a federal misdemeanor under

21 U.S.C. § 841(b)(4) in the absence of proof of remuneration or of more than a

small amount of marijuana. 

The BIA was not swayed by Jordan. Under BIA precedent, a state

conviction for possessing an indeterminate amount of marijuana with intent to

distribute is considered an aggravated felony under the CSA. In re Matter of

Aruna, 24 I.&N. Dec. 452, 2008 WL 512678 (BIA Feb. 26, 2008). The BIA found

no reversible error in the IJ’s decision to follow its precedent rather than an

unpublished, non-precedential circuit court opinion. Moncrieffe petitions for a

review of the BIA decision dismissing his appeal.

STANDARD OF REVIEW

This court has jurisdiction to review questions of law in petitions from the

BIA. 8 U.S.C. § 1252(a)(2). We review such questions de novo. Omagah v.

Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). Whether a prior state conviction

falls within the federal definition of aggravated felony is also reviewed de novo

because “[d]etermining a particular federal or state crime’s elements lies beyond

the scope of the BIA’s delegated power or accumulated expertise.” Id. We

review only the BIA decision “unless the IJ’s decision has some impact on the

BIA’s decision.” Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997). Factual

findings are reviewed for substantial evidence and are overturned only if “the

evidence is so compelling that no reasonable factfinder could reach a contrary

conclusion.” Chen v. Gonzales, 470 F.3d 1121, 1134 (5th Cir. 2006).

3

Case: 10-60826 Document: 00511659356 Page: 3 Date Filed: 11/08/2011
No. 10-60826

DISCUSSION

An alien who is convicted of an “aggravated felony” is removable. 8 U.S.C.

§ 1227(a)(2)(A)(iii). “Drug trafficking crimes” are considered “aggravated

felonies.” 8 U.S.C. § 1101(a)(43)(B). “Drug trafficking crimes” include any felony

punishable under the CSA, see 18 U.S.C. § 924(c)(2), even if the offense is a

misdemeanor under state law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct.

625, 633 (2006) (noting that there “is no reason to think Congress meant to allow

the States to supplant its own [misdemeanor/felony] classifications when it

specifically constructed its immigration law to turn on them”). Felonies under

§ 924(c)(2) are those crimes that are punishable by more than one year in prison.

 Lopez, 549 U.S. at 56 n.7, 127 S. Ct. at 631 n.7.

The Fifth Circuit uses a categorical approach to determine whether a state

conviction qualifies as a felony under the CSA. Omari v. Gonzales, 419 F.3d 303,

307 (5th Cir. 2005). Under the categorical approach, the court considers whether

the elements of the state statute are analogous to a federal felony instead of

looking at the underlying facts of the crime. Id. If a state statute is divisible,

meaning that some conduct would be punished as a felony but other conduct only

punished as a misdemeanor under the CSA, then some evidence of the

underlying criminal act can be considered in the determination. Id. at 308. We

have limited the government to presenting evidence approved in Shepard v.

United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), to determine whether a guilty

plea conviction under a divisible state law was an aggravated felony. Omari,

419 F.3d at 308. Acceptable evidence includes the “charging document, written

plea agreement, transcript of plea colloquy, and any explicit factual finding by

4

Case: 10-60826 Document: 00511659356 Page: 4 Date Filed: 11/08/2011
No. 10-60826

the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16,

125 S. Ct. at 1257.

Ordinarily, convictions for possession with intent to distribute are felonies

under the CSA. See 21 U.S.C. § 841. A subsection of the provision, however,

provides for misdemeanor treatment for distribution of small amounts of

marijuana without remuneration. 21 U.S.C. § 841(b)(4). When a state criminal

statute covers both the felony and misdemeanor conduct proscribed by § 841, the

courts of appeals are split on whether the conviction, if lacking specifics of the

underlying criminal conduct, should be treated as a felony or a misdemeanor. 

The First and Sixth Circuits hold that the default punishment under § 841 is a

felony, while the Second and Third Circuits hold that the default punishment is

a misdemeanor. In an unpublished opinion preceding these circuit cases, 2

Jordan, 204 F. App’x 425, this court held that when there was no evidence of

how much marijuana was involved or of remuneration, the state conviction could

not be considered a federal felony. Jordan, however, conflicts with published

Fifth Circuit precedent construing the CSA. We decline to follow it and adopt

the First and Sixth Circuits’ approach. 

While acknowledging the circuit split, the Sixth Circuit recently ruled that

the felony provision, not the misdemeanor subsection (§ 841(b)(4)), is “the default

provision for punishing possession of the drug with intent to distribute.” Garcia,

638 F.3d at 516. The amount of marijuana is not, the court noted, an element

that prosecutors must establish for conviction under the felony provision. Id.

(citing United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002)). As a

Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011); Martinez v. Mukasey, 551 F.3d 113

2

(2d Cir. 2008); Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); Jeune v. Attorney General,

476 F.3d 199 (3d Cir. 2007).

5

Case: 10-60826 Document: 00511659356 Page: 5 Date Filed: 11/08/2011
No. 10-60826

result, the misdemeanor provision “is ‘best understood as a mitigating

sentencing provision’ and not ‘a stand alone misdemeanor offense.’” Id. (quoting

Julce, 530 F.3d at 34-36). 

The Second and Third Circuits, in contrast, focus on the doctrine of “least

culpable offense.” Martinez, 551 F.3d 113; Jeune, 476 F.3d 199. The Second

Circuit emphasized that “only the minimum criminal conduct necessary to

sustain a conviction under a given statute is relevant” to the categorical

approach. Martinez, 551 F.3d at 118 (quoting Gertsenshteyn v. Mukasey,

544 F.3d 137, 143 (2d Cir. 2008)). Because a New York statute covered offenses

involving only two grams of marijuana, the court concluded that the conviction

at issue could possibly have been a non-remunerative transfer of a small amount

of marijuana and therefore should be treated as a misdemeanor under 

§ 841(b)(4). Id. at 120. 

Published Fifth Circuit case law compels us to reject the Second Circuit’s

approach and agree with the First and Sixth Circuits. In United States v.

Walker, 302 F.3d 322, 324 (5th Cir. 2002), this court held that the default

sentencing range for a marijuana distribution offense is the CSA’s felony

provision, § 841(b)(1)(D), rather than the misdemeanor provision. Prior to

Walker, this court held that for sentencing purposes, when no jury determination

of drug quantity is available, the default punishment is a felony-based maximum

of five years under § 841(b)(1)(D). United States v. Garcia, 242 F.3d 593, 599

(5th Cir. 2001). The First Circuit relied on Walker as evidence that the default

punishment for any possession of marijuana with intent to distribute is

equivalent to a felony under the CSA and that the defendant bears the burden

of producing mitigating evidence in order to qualify for misdemeanor treatment. 

6

Case: 10-60826 Document: 00511659356 Page: 6 Date Filed: 11/08/2011
No. 10-60826

Julce, 530 F.3d at 35. We adopt the same interpretation of § 841 for immigration

purposes as for sentencing purposes. United States v. Hernandez-Avalos,

251 F.3d 505, 509 (5th Cir. 2001) (“We fail to see the validity of interpreting this

statute differently based on this distinction betweensentencing and immigration

cases; it is, after all, the same words of the same phrase from the same statute

that is being interpreted in each instance.”), overruled on other grounds, Lopez,

549 U.S. at 60, 127 S. Ct. at 633; see also Lopez, 549 U.S. at 58, 127 S. Ct. at 632

(concluding that Congress incorporated “its own statutory scheme of felonies and

misdemeanors” in the immigration removal context). While this approach

conflicts with the unpublished opinion in Jordan, it is important to follow our

published Fifth Circuit sentencing cases. See Garcia, 638 F.3d at 517-18 (Sixth

Circuit “declin[ing] to interpret a drug-based aggravated felony differently in

immigration and criminal-sentencing contexts”). But see Martinez, 551 F.3d at

121 (Second Circuit acknowledges conflict between its own sentencing and

immigration cases interpreting § 841).

Based on this reading of § 841, we deny Moncrieffe’s Petition for Review. 

He pled guilty to possession of marijuana with intent to distribute under GA.

CODE § 16-13-30(j). Even if that section of the Georgia code could cover conduct

that would be considered a misdemeanor under § 841(b)(4), Moncrieffe bore the

burden to prove that he was convicted of only misdemeanor conduct. In re

Matter of Aruna, 24 I.&N. Dec. at 457. Otherwise, as is true for federal 3

Moncrieffe did not offer any proof of the allegedly small amount of marijuana involved 3

in his crime until he appealed to the BIA. This was untimely under BIA rules. 8 C.F.R.

§ 1003.1(d)(3)(iv). Therefore, we need not address the question of what quality and quantum of

proof must be offered by the defendant to show that his drug quantity qualifies for treatment under

21 U.S.C. § 841(b)(4). The evidence, even if admissible, could not be addressed in the first

instance on appeal.

7

Case: 10-60826 Document: 00511659356 Page: 7 Date Filed: 11/08/2011
No. 10-60826

defendants charged under § 841, his crime is equivalent to a federal felony. The

petitioner’s other arguments are without merit.4

Petition DENIED.

Petitioner’s argument that the state crime was considered a misdemeanor by the 4

state is irrelevant given the Supreme Court’s holding in Lopez. 549 U.S. at 60 (noting that

there “is no reason to think Congress meant to allow the States to supplant its own

[misdemeanor/felony] classifications”). The petitioner’s reliance on Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010), is also misplaced because that case merely held that uncharged

and unproven recidivism could not convert a misdemeanor into an aggravated felony. 

Moncrieffe was charged and pled guilty to the conduct for which he was removed. 

8

Case: 10-60826 Document: 00511659356 Page: 8 Date Filed: 11/08/2011