495 F. App'x 790
9th Cir.2012Background
- Cardozo petitions for review of BIA's affirmation of IJ finding him removable under 8 U.S.C. § 1227(a)(2)(A)(iii) based on a California conviction for manufacturing controlled substances.
- BIA concluded Cardozo's California offense qualifies as a drug trafficking crime and an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) via the modified categorical approach.
- Record relied on Abstract of Judgment and Information showing Cardozo manufactured concentrated cannabis.
- California Health & Safety Code § 11379.6(a) punishes manufacturing of any controlled substance with knowledge of the substance's character—interpreted as requiring knowledge.
- California courts have construed § 11379.6(a) as incorporating knowledge of substance, aligning with the necessity of knowledge for conviction.
- Concentrated cannabis is the resin derived from marijuana, which is encompassed by the federal definition of marijuana.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Cardozo's CA conviction for manufacturing concentrated cannabis meet the generic manufacturing offense under the modified categorical approach? | Cardozo contends the record insufficiently ties the conviction to a federalManufacturing offense. | Cardozo's record, via Abstract of Judgment, maps to the generic offense of manufacturing controlled substances. | Yes; the record supports the modified categorical match to the generic offense. |
| Does the record evidence (Abstract of Judgment) adequately support applying the modified categorical approach? | Cardozo argues the abstract alone does not prove knowledge of substance and thus cannot support the categorization. | Abstract of Judgment and information suffice to show the count and conduct a match to the generic offense. | Yes; the abstraction suffices to support the aggravated felony determination. |
Key Cases Cited
- People v. Coria, 985 P.2d 970 (Cal. 1999) (knowledge requirement to convict under § 11379.6(a))
- People v. Bergen, 166 Cal. App. 4th 161 (Cal. App. 2008) (definition of concentrated cannabis and knowledge element)
- Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) (cases approving reliance on Abstracts of Judgment)
- United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc discussion relevant to knowledge and record reliance)
- Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (recognition of modified categorical approach)
- Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc decision approving reliance on Abstracts of Judgment)