2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2009

Guzman-Lopez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3477

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Guzman-Lopez v. Atty Gen USA" (2009). 2009 Decisions. Paper 689.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/689
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3477

 

FERNANDO GUZMAN-LOPEZ,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(Agency No. A91-709-157)

Immigration Judge: Honorable Andrew Arthur

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 9, 2009

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

(Filed: September 9, 2009)

 

OPINION OF THE COURT

 

PER CURIAM

Fernando Guzman-Lopez petitions for review of an order of the Board of

Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Guzman-Lopez was admitted to the United States in 1990 as a lawful permanent
 1

 We determined that the alien’s conviction in Jeune was not an aggravated felony

because 21 U.S.C. § 841(b)(1)(D) and (b)(4) establish an exception for distributing small

amounts of marihuana without remuneration - such offenses are punished as

misdemeanors. Jeune, 476 F.3d at 205. In Jeune, it was not clear from the record

whether remuneration was involved or whether the marihuana involved was more than a

small amount. Section 841 does not provide such an exception for cocaine, the drug

involved in Guzman-Lopez’s conviction.

2

resident. In 2006, he was charged as removable as an aggravated felon based on his state

court conviction for delivery of cocaine. An Immigration Judge (IJ) found GuzmanLopez removable and ineligible for cancellation of removal. The BIA agreed with the IJ

and dismissed the appeal. Guzman-Lopez filed a timely petition for review.

We have jurisdiction to consider whether Guzman-Lopez is an aggravated felon

and exercise plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462

F.3d 287, 290-91 (3d Cir. 2006). If a state court conviction would be punishable as a

felony under the federal Controlled Substance Act, it qualifies as an aggravated felony. 

Evanson v. Attorney General, 550 F.3d 284, 289 (3d Cir. 2008). Guzman-Lopez was

convicted of the unlawful delivery of 105 grams of cocaine in violation of 35 PA. STAT.

ANN. § 780-113(a)(30). We have held that a conviction under that statute is analogous to

21 U.S.C. § 841(a)(1). Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir. 2007).1

Section 841(a)(1) proscribes, inter alia, the distribution of cocaine.

Citing 18 U.S.C. § 3559, Guzman-Lopez argues that the amount of cocaine he was

convicted of delivering would not necessarily be punishable as a felony under federal law
 2

 Because § 841(b)(1)(C) allows for prosecution of the distribution of any amount of

cocaine, we need not reach Guzman-Lopez’s arguments regarding whether his conviction

involved enough cocaine to be prosecuted under § 841(b)(1)(A)(ii) or (B)(ii).

 3

 Because Guzman-Lopez is an aggravated felon, our review of the BIA’s denial of

relief is limited to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C). 

Guzman-Lopez does not raise any such claims.

3

because § 841(b)(1)(C), which sets the penalty for distributing any amount of cocaine,2

does not provide for a minimum sentence of at least a year. However, Section 3559(a)(3)

provides that if the maximum term of imprisonment authorized for an offense is “less than

twenty-five years but ten or more years,” the offense is graded as a Class C felony. 

Section 841(b)(1)(C) provides for a maximum sentence of twenty years, which is less

than twenty-five years but more than ten years. Thus, a violation of 841(a) involving a

detectable amount of cocaine is a Class C felony. Because Guzman-Lopez’s conviction

would be punishable as a federal felony, he is an aggravated felon, removable as such,

and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).3

For the above reasons, we will deny the petition for review.