Roberto Roman-Suaste v. Eric Holder, Jr., 2014 U.S. App. LEXIS 17239

Roberto Roman‑Suaste, a Mexican national and U.S. lawful permanent resident, pleaded nolo contendere and was convicted under California Health & Safety Code § 11359 (possession of marijuana for sale) and sentenced to three years.
Department of Homeland Security charged him as removable for being an aggravated felon and a controlled‑substances offender under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (B)(i).
An Immigration Judge found him removable and ineligible for discretionary relief because the § 11359 conviction was an aggravated felony; the BIA affirmed.
Roman‑Suaste petitioned for review in the Ninth Circuit, which reviews de novo whether an offense is an aggravated felony.
The central legal question was whether California’s “possession for sale” (§ 11359) categorically matches the INA’s aggravated‑felony category for illicit trafficking/drug trafficking (as defined by the CSA and 18 U.S.C. § 924(c)).

Issue	Roman‑Suaste's Argument	Government's Argument	Held
Whether CHSC § 11359 categorically constitutes an aggravated felony (illicit trafficking/drug trafficking)	§ 11359 is broader than the CSA offense because “possession for sale” can include transfers for insignificant or non‑remunerative purposes and thus may fall within the CSA’s small‑amount/no‑remuneration exception	§ 11359 requires possession with intent to sell (a sale implies remuneration) and thus corresponds to CSA § 841(a) possession‑with‑intent‑to‑distribute, which is a felony when remuneration is involved	The statute is a categorical match; convictions under § 11359 are aggravated felonies
Whether aiding and abetting liability under California renders § 11359 broader than federal law	California’s aiding/abetting scope is broader than federal aiding/abetting, potentially covering conduct not punishable as a CSA felony	California aiding/abetting law and federal aiding/abetting (18 U.S.C. § 2) are effectively equivalent in scope and application	No meaningful difference; aiding and abetting does not defeat the categorical match

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (interpreting the CSA exception for small‑amount, no‑remuneration marijuana distributions and explaining categorical inquiry)
Taylor v. United States, 495 U.S. 575 (1990) (establishing the categorical approach)
Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (clarifying categorical approach and reliance on the state statute’s elements)
Carlos‑Blaza v. Holder, 611 F.3d 583 (9th Cir. 2010) (Ninth Circuit precedent on de novo review of aggravated‑felony classification)
United States v. Martinez‑Rodriguez, 472 F.3d 1087 (9th Cir. 2007) (relating state mens rea requirements to federal possession‑with‑intent offense)
People v. Lazenby, 8 Cal. Rptr. 2d 541 (Ct. App. 1992) (California case treating a “sale” as implying exchange/remuneration)
People v. Null, 204 Cal. Rptr. 580 (Ct. App. 1984) (discussing aiding/abetting liability under California law in a § 11359 context)
United States v. Sliwo, 620 F.3d 630 (6th Cir. 2010) (illustrative federal aiding/abetting insufficiency‑of‑evidence decision discussed and distinguished)

PETITION FOR REVIEW DENIED.