### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 peti tions 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 8, 2 011 Lyle W . Cayce Clerk

Di st ric t Judge, Eas ter n D ist ric t of Texas , sit ting by d es ignati on. * Case: 10-60826 Document: 00511659356 Page: 1 Date Filed: 11/08/2011No. 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 State s 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

a n d was sentenced to five years probation. Because of his guilty plea, D H S charged Moncrieffe with being removable u n d e r both 8 U.S.C. § 1227(a)(2)(B) relating to controlled substances offenses and under § 1227( a ) ( 2 ) “as an

a g g r a v a ted felon” because the conviction was for a “drug trafficking crime” as defined by 18 U.S.C. § 924(c). DHS prod u c e d t h e Georgia judgment and 1 charging document at the immigration hearing in support of its position. The IJ ruled t h a t t h e s tate 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

. C O D E §16 -13- 3 0(j) punishes acts that are equivalent to misdemeanors under the C S A

. Specifically, distribution of “a small amount of marijuana for no remuneration” falls under the Georgia provision but i s o nly 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 marijua n a,

BIA did not rule on, and we do not cons ide r, wh ethe r the Ge orgia convic tio n 1
cons tit uteda “co ntr olle d sub st ance s” vio lati on forp urp os es of r em oval. 2 Case: 10-60826 Document: 00511659356 Page: 2 Date Filed: 11/08/2011No. 10-60826

Moncrieffe argued that his conviction sh o u l d 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 wi th i n t e n t t o di s t rib u t e w a s 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 preceden t , a state conviction for possessing an indeterminate amount of marijuana with intent to distribu t e i s 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

n o reversible error in the IJ’s decision to follow its precedent rather than an unpublished, non-precedential circuit court opinion. Moncrieffe peti tions 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 “ u n l e ss 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 substant ial evidence and are overturned only if “the

e v i d ence is so compelling that no reasonable factfinder could reach a co n t r a r y conclusion.” Chen v. Gonzales , 470 F.3d 1121, 1134 (5th Cir. 2 006).

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

m i s d e m eanor under state law. Lopez v. Gonzales , 549 U.S. 47, 60, 127 S. C t

. 625, 633 (2006) (noting that there “is no reason to think Congress meant to allow the States to supplant its own [misdemeano r/f e l o ny] 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 (5 t h C i r . 2005). Under the categorical approach, the court considers whether the elements of the state statute are a n a l o g o u s to a federal felony instead of l o o k i n g at the underlying facts of the crime. Id. If a state statute is di v i s i b l e , meaning that some conduct would be punished as a felony but other conduct only punished as a m i s demeanor 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 present i n g e v i dence 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 felon y . O m a ri , 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: 11/08/2011No. 10-60826

the trial judge to which the defendan t a s s ented.” Shepard , 544 U.S. at 16, 125 S. Ct. at 1257. Ordinarily, convictions for possession with intent t o di s t rib u t e a r e f elonies under the CSA. See 21 U.S.C. § 841. A s u b s e c t i o n of the provision, however, provides for misdemeanor treatment for di s t r ibution 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 s plit on whether the conviction, if lacking specifics of the underlying criminal conduct, should be treated a s a f e l ony 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 h ow much marijuana was involved or of remuneration, the state conviction could not be considered a federal felony. J ordan , however, conflicts with published F i f t h C i r cuit precedent construing the CSA. We decline to follow it and ado p t the First and Sixth Circuits’ approach. While acknowledging the circuit split, the S i xt h C i r cuit recently ruled that the felony provision, not the misdemeanor sub s e c t i o n ( § 8 4 1 (b ) (4)), is “the default provision for punishing possession of the drug with intent to distribute.” Garcia , 638 F.3d at 516. The a mount of marijuana is not, the court noted, an element t h a t 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

Ga rci a v. Ho lde r , 638 F.3d 511 (6t h Cir. 2011) ; Ma rtine z v. Muk as ey , 551 F.3d 1 1 3 2 (2d Cir. 2008) ; Julc e v. Muk as ey , 530 F.3d 30, 34-3 6 (1s t Cir. 2008) ; Jeune v. Attorn ey Ge ner al , 476 F.3d199 ( 3d Cir. 200 7). 5 Case: 10-60826 Document: 00511659356 Page: 5 Date Filed: 11/08/2011No. 10-60826

r e s u lt, the misdemeanor provision “is ‘best understood as a mitiga t i n g 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 “ o n l y the minimum criminal conduct necessary to sustain a conviction under a given st a t u t e i s relevant” to the categorical approach. Martinez , 551 F.3d at 118 (quoting Gertsensht e yn 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 mi s d e m e anor 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 a n d Sixth Circuits. In United States v. Walker , 302 F.3d 322, 3 2 4 ( 5 th 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 th a n t h e misdemeanor provision. Prior to W a lk e r , this court held that for sentencing purposes, when no jury det e r m i n a t i o n of drug qu a n t i ty i s available, the default punishment is a felony-based maximum of five years under § 841(b)(1)(D). United Sta t e s 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 d i s t r i bute 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: 11/08/2011No. 10-60826

Julce , 530 F.3d at 35. We adopt the same interpretation of § 841 for immigration
purp o s es 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 disti n c t i o n b e t w e e n s e n t e n c i n g a n d i m m i gr a tion
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 C o n gr e s s i n c o r porated “its own statutory scheme of felonies and misdemeanor s ” i n the immigration removal context). While this approach conflicts with the unpublished opinion in Jorda n , i t i s 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- b a s e d a ggravated felony differently in immigration and criminal-sentencing contexts”). But see Martinez , 551 F.3d at 121 (Second Circuit acknowledge s 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 posses s i o n o f m arijuana with intent to distribute under GA

. C O D E § 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 o n l y m i s d e m e anor conduct. In re Matter of Aruna , 2 4 I

. & N

. D e c . at 457. Otherwise, as is true for federal 3

Mo ncr ief

fe did not off

er any pr oof of the allege dly sm all amo unt of mar ijuana involved 3 in his cri me until he app ealed to the BIA. This wa s untim ely unde r BIA rule s. 8 C

. F

. R

. § 1003. 1(d )( 3)( i v)

. There fore , we need not addre ss 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

. § 8 4 1 (b)(4). The evide nce, even if adm iss ible, coul d not be add res se d in the fir st ins tanc e o n ap pea l. 7 Case: 10-60826 Document: 00511659356 Page: 7 Date Filed: 11/08/2011No. 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

.

Petit ioner ’ s a r g u m ent that the st ate cri me wa s cons ide red a mi sd em eanor by the 4
s t a t e is irr elevant given the Sup rem e Court ’s hold ing in Lope z . 549 U. S. at 60 (no ting tha t ther e “is no r e a s o n t o t h i nk Congres s me ant to allow the Sta tes to sup plan t its ow n [m isd em eanor/f

elony] clas sif

icat ions ”)

. The pet itio ner’ s reli ance on Cara chur i

- R ose ndo v. Ho lde r , 130 S. Ct. 2577 (201 0), is als o mi sp lace d beca use that cas e me rely held that unchar ged and unpr o v e n r e c idi vism coul d not conver t a mi sd em eanor into an aggravate d fel ony. Mo ncr ief

fe wa s char ged and ple d guilty to the cond uctf or wh ich he wa s rem oved

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