NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2092

___________

RAMON EDILIO GOMEZ,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A041-426-808)

Immigration Judge: Honorable Walter Durling 

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 6, 2014

Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

(Opinion filed: February 10, 2014)

___________

OPINION

___________

PER CURIAM

Ramon Edilio Gomez, a native and citizen of the Dominican Republic, petitions 

for review of a final order of removal entered by the Board of Immigration Appeals (the 
2

“Board”) on March 22, 2013. For the following reasons, we will deny the petition for 

review. 

Gomez was admitted to the United States on June 30, 1988, as a lawful permanent 

resident. In 2011, a grand jury in North Carolina returned an indictment against him 

containing one count of conspiracy to ship, transport, receive and possess contraband 

cigarettes and transport stolen property, in violation of 18 U.S.C. §§ 2342(a), 2314, and 

371 (Count 1); two counts of shipping, transporting, receiving, and possessing contraband 

cigarettes and aiding and abetting, in violation of 18 U.S.C. §§ 2342(a) and 2 (Counts 2 

and 3); and one count of transporting in interstate commerce stolen property and aiding 

and abetting, in violation of 18 U.S.C. §§ 2314 and 2 (Count 4). (A.R. 109-18.) The 

government alleged that Gomez conspired to import stolen and untaxed cigarettes from 

North Carolina and resell them in New Jersey, without paying New Jersey’s cigarette 

excise tax. Gomez pleaded not guilty to Counts 1 and 4 and guilty to Counts 2 and 3. 

Following a bench trial, the District Court found Gomez guilty of Counts 1 and 4, and 

subsequently sentenced him to thirty months’ imprisonment on each count, to be served 

concurrently. (A.R. 86.)

The Department of Homeland Security (“DHS”) initiated removal proceedings 

against Gomez by filing a Notice to Appear (“NTA”) in 2012. The NTA charged him as 

removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an 

aggravated felony, specifically, a theft offense (including receipt of stolen property) for 

which the term of imprisonment was at least one year. (A.R. 182.) See 8 U.S.C. 
3

§§ 1101(a)(43)(G) and (U). Gomez denied DHS’s allegations and denied the charge of 

removability. 

The Immigration Judge (“IJ”) issued a “Ruling on Aggravated Felony,” finding 

that Gomez’s federal conviction under 18 U.S.C. §§ 2314 and 2 constituted a theft 

offense and aggravated felony as defined in 8 U.S.C. §§ 1101(a)(43)(G) and (U). (A.R. 

121-22.) Gomez was ordered removed on November 13, 2012. (A.R. 38-39.) The 

Board affirmed the IJ’s decision without an opinion. (A.R. 3.) Gomez timely filed a 

petition for review.

Generally, we lack jurisdiction to review a final order of removal against an alien, 

like Gomez, who is removable for having been convicted of an aggravated felony. 8 

U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional or 

legal questions raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v. 

Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006). Whether Gomez was convicted of an 

offense that constitutes an aggravated felony is a legal question we review de novo. 

Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010). When the Board affirms the 

IJ’s decision without an opinion, we review the IJ’s opinion. Dia v. Ashcroft, 353 F.3d 

228, 245 (3d Cir. 2003) (en banc). 

The issue presented here is whether the IJ properly determined that Gomez’s 

conviction under 18 U.S.C. §§ 2314 and 2 constituted an aggravated felony. Gomez 

argues that the statute under which he was convicted, 18 U.S.C. § 2314, is a divisible 

statute, and that the government failed to meet its burden of proving that the part of the 
4

statute pertaining to transporting stolen goods formed the basis of his conviction. He 

claims that the contraband cigarettes were not stolen because he purchased them from a 

confidential informant who, in turn, purchased them from the government. The 

government points out that Gomez was found guilty of Counts 1 and 4 of the indictment,

both pertaining to transporting stolen property. Gomez’s conviction is no longer open to 

direct or collateral attack, and he cannot challenge his removal order by arguing the 

illegality of his conviction. See Drakes v. I.N.S., 330 F.3d 600, 604 (3d Cir. 2003). 

The District Court found Gomez guilty of transporting stolen property under 

Counts 1 and 4 of the indictment. The Board has made clear that anyone who receives 

stolen property and resolves to keep or sell it has committed the offense of receiving 

stolen property. In re Bahta, 22 I. & N. Dec. 1381, 1391 (BIA 2000). We perceive no 

error in the IJ’s conclusion that Gomez’s conviction under 18 U.S.C. §§ 2314 and 2 

constituted a theft offense and an aggravated felony as defined in the INA.1

 8 U.S.C. 

§§ 1101(a)(43)(G) and (U). (A.R. 121-22.) Therefore, Gomez’s petition for review will 

be denied.

 1 The IJ properly adhered to the modified categorical approach here because Gomez’s 

statute of conviction “lists elements in the alternative.” Rojas v. Att’y Gen., 728 F.3d 

203, 215 (3d Cir. 2013) (citing Descamps v. United States, 133 S. Ct. 2276, 2281 

(2013)). The IJ first defined receipt of stolen property consistent with Bahta and then, 

based on the indictment and judgment, determined that the convictions on Counts 1and 4 

constituted theft offenses and aggravated felonies. Descamps, 133 S. Ct. at 2284-85.