* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED JULY 29, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60445

Summary Calendar

CHARLES EGBERT CLARKE, also known as Shawn Phillips, also known as

Charlie Charkes, also known as Charles Clark, also known as Sean C Phillips,

also known as Karl J Clarke, also known as Junior Davis, also known as Junior

Smith, also known as Charle Willmoe, also known as Rambo Gibbs, also known

as Junior Kojak, also known as Shan Phillips

Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A39 059 578

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

July 27, 2010

Lyle W. Cayce

Clerk
No. 07-60445

2

Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is GRANTED in part. Accordingly,

we WITHDRAW our previous opinion and replace it with the following opinion.

Clarke petitioned this court for review of the decision of the Board of

Immigration Appeals (BIA) dismissing his appeal and affirming the immigration

judge’s (IJ) order finding him ineligible for cancellation of removal because he

had committed an aggravated felony; removable pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i) because he had been convicted of a controlled substance

violation; and removable pursuantto 8 U.S.C. § 1227(a)(2)(A)(iii) because he had

been convicted of an aggravated felony.

In the now-withdrawn opinion, filed in December 2009, this panel relied

on Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68 (5th Cir. 2009), and held

thatthe BIA did not err in finding Clarke committed an aggravated felony based

upon his 2006 conviction in New York of criminal possession of crack cocaine in

the seventh degree after he had been convicted in New York in 1995 of criminal

possession of cocaine in the seventh degree. On June 14, 2010, the Supreme

Court unanimously reversed our decision in Carachuri-Rosendo. CarachuriRosendo v. Holder, No. 09-60, 2010 U.S. LEXIS 4764, 560 U.S. ____ (June 14,

2010), rejecting this court’s “hypothetical approach” and holding that “the

defendant must also have been actually convicted of a crime that is itself

punishable as a felony under federal law.” Id. at *32, *35.

Carachuri-Rosendo, however, does not carry the day for Clarke, because

the BIA found Clarke removable as an aggravated felon, and thus ineligible for

cancellation of removal,for two independent reasons. Although we had no reason

to address the Board’s alternate finding in our earlier opinion, Clarke was also

convicted in 1991 for attempted criminal sale of cocaine in the third degree, in

violation of §§ 110 and 220.39(1) of the N.Y. PENAL LAW. “To qualify as an

‘aggravated felony’ under the [Immigration and Nationality Act (INA)], the
No. 07-60445

1 We note that under 8 U.S.C. § 1101(a)(43)(U), an attempt to commit any of the

offenses described therein is an aggravated felony.

2 We have previously held that because “the Guidelines definition of ‘controlled

substance offense’ is nearly identical to the definition of conduct defined as a felony under the

Controlled Substances Act,” Vasquez-Martinez v. Holder, 564 F.3d 712, 719 (5th Cir. 2009),

CSA cases may rely on determinations of drug trafficking crimes made in the sentencing

context. Davila, 2010 U.S. App. LEXIS at **5-6.

.

3

conduct prohibited by state law must be punishable as a felony under federal

law.”1 Carachuri-Rosendo, 2010 U.S. LEXIS 4764, at *35 (citing Lopez v.

Gonzales, 549 U.S. 47, 60 (2006)). The BIA properly found that Clarke’s

conviction for attempted criminal sale of cocaine encompassed conduct

punishable as a felony under the Controlled Substances Act (CSA), 21 U.S.C.

§§841(a)(1) and 846, attempted possession of cocaine with intent to distribute.

A recent panel of this court stated that “we have found that a violation of

[N.Y.PENAL LAW] § 220.39 for criminal sale of controlled substances in the third

degree does not constitute a drug trafficking crime under the [United States

Sentencing Guidelines]” because statutes that punish “offers to sell” are not drug

trafficking crimes under the CSA. Davila v. Holder, No. 08-60530, 2010 U.S.

App. LEXIS 12230, at *5 (5th Cir. June 15, 2010) (unpublished) (citing United

States v. Stanley, 281 F. App’x 370, 372 (5th Cir. 2008) (unpublished)).2 Stanley,

however, actually held that “a conviction under New York Penal Statute

§ 220.39, based on the text of the statute alone, is not a conviction for a drug

trafficking offense.” Stanley, 281 F. App’x at 372 (emphasis added). Using the

method approved by the Supreme Court in Shepard v. United States, 544 U.S.

13, 16 (2005), the court in Stanley looked to the charging instrument and to “the

law of the jurisdiction in which the guilty plea was entered” to determine

whether the defendant was subject to a sentencing enhancement under the

categorical approach. Id. Under New York law, a guilty plea “constitutes an
No. 07-60445

4

effective judicial admission by a defendant that he committed the acts charged

in the accusatory instrument.” People v. Lee, 448 N.E.2d 1328, 1329 (N.Y. 1983).

Stanley noted that while the statutory definition of “to sell” contained in

§ 220.39 encompassed an “offer to sell,” see N.Y. PENAL LAW § 220.00(1),

Stanley’s indictment alleged that she committed “a violation of § 220.39[1] ‘as

follows.’ The indictment alleges that she ‘sold . . . cocaine.’” Stanley, 281 F. App’x

at 373. “When determining whether a prior offense is a drug-trafficking offense,

the court may also consider documents such as the charging instrument and the

jury instructions.” United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007)

(per curiam). In United States v. Gutierrez-Ramirez, we stated that we could not

use an indictment to narrow the offense of conviction where “the indictment

merely tracks the language of the statute, and includes language relating to

conduct that would not qualify as a ‘drug trafficking offense.’” 405 F.3d 352, 359

(5th Cir. 2005). In Stanley, however, the indictment alleged that Stanley

“knowingly and unlawfully sold” cocaine, “conduct which falls within the

definition of ‘drug trafficking offense.’” Stanley, 281 F. App’x at 373. The court

rejected Stanley’s contention that it should “interpret [the word] ‘sold’ in her

indictment to encompass all of the alternative definitions provided in §

220.00(1), including ‘offer to sell.’” Id. Giving the term “to sell” as it is used

within the statutory definition of “sell” its ordinary meaning, the court concluded

that the district court had not committed plain error when it determined

Stanley’s § 220.39 conviction was a drug trafficking offense.

The record is sufficient to establish that Clarke’s conviction under N.Y.

PENAL LAW § 220.39 is a drug trafficking crime under the CSA. The record

indicates Clarke pleaded guilty to § 220.39. Under New York law, this plea

constitutes a judicial admission of commission of the acts charged in the

indictment. Lee, 448 N.E.2d at 1329. Because a violation of § 220.39 may

encompass conduct that does not qualify as a drug trafficking crime under the
No. 07-60445

5

CSA, we consider Clarke’s indictment. The language in Clarke’s indictment is

virtually indistinguishable from the indictment discussed in Stanley. It accuses

Clarke of the crime of criminal sale of a controlled substance in the third degree

(§ 220.39) “as follows: The defendants, each aiding the other, on or about March

20, 1989, in the County of Kings, knowingly and unlawfully sold a narcotic drug,

namely: cocaine, to a person known to the grand jury.” As in Stanley, Clarke’s

indictment does not merely track the language of the statute—it alleges he “sold”

cocaine to another individual. Like the panel in Stanley, we accord the word

“sold” its ordinary meaning and conclude that the record establishes Clarke’s

§ 220.39 conviction was notfor an “offer to sell,” and that it therefore constitutes

a drug trafficking crime under the CSA. Cf. Davila, 2010 U.S. App. LEXIS at *7

(“In this case, examining these documents does not reveal anything about the

nature of Davila’s ‘sale,’ because the indictment merely tracks the language of

the statute. Thus, the record fails to establish that Davila’s conviction under

N.Y. PENAL LAW § 220.41 was not merely for an offer to sell.”).

The Supreme Court’s decision in Carachuri-Rosendo did not disturb our

other conclusions. We recount them here. Clarke’s claims that several due

process violations occurred with respect to his removal proceedings were not

exhausted before the BIA, and we therefore lack jurisdiction to consider them.

See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam). Clarke also

previously filed a petition for review (PFR) of the BIA’s denial of his motion for

reconsideration, raising arguments identical to arguments raised with respect

to Clarke’s PFR from the BIA’s dismissal of his appeal. Accordingly, Clarke’s

PFR from the denial of his motion for reconsideration lacks merit for the same

reasons stated above. The Government also moved to dismiss Clarke’s PFR from

the denial of his motion for reconsideration.

For the reasons stated above, Clarke’s PFR from the dismissal of his

appeal is DENIED, his PFR from the denial of his motion for reconsideration is
No. 07-60445

6

DENIED, and the Government’s motion to dismiss is DENIED as unnecessary.

All other motions pending before this court are DENIED.