Pеtitioner Ventura Lopez-Jaeuinde seeks review of a decision by the Board of Immigration Appeals (“BIA”) that held that his state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a “drug trafficking crime” which constitutes an “aggravated felony” under federal law, rendering him statutorily ineligible for cancellation of removal. Lopez^Jаcuinde argues that “drug trafficking crime,” as defined by the relevant federal statute, requires the use of a firearm and thus the state criminal statute, which has no such element, is broader than the federal statute. He argues further that the state criminal statute is broader than the corresponding federal crime because the federal crime imposes a requirement, not found in the state statute, as to the minimum amount of pseudoephedrine possessed by the defendant. We disagree and deny the petition for review.
1. Facts and Procedural History
On February 10, 2005, Lopez-Jaeuinde, a citizen of Mexico, was convicted of the offense of possession of pseudoephedrine with intent to manufacture methamphetamine or any of its analogs in violation of California Health and Safety Code § 11383(c)(1). 1 He was served with a nоtice to appear for removal proceedings that alleged he had committed an aggravated felony. 2 He filed an application for cancellation of removal and a motion to strike the aggravated felony charge. The Immigration Judge (“U”) denied LopezJacuinde’s motion to strike and ordered him removed from the United States. The BIA dismissed Lopez-Jacuinde’s petition for review and agreed with the IJ that Lopez-Jacuinde had been convicted of an aggravated felony. The BIA held that a *1217 “drug trafficking crime” does not require the use of a firearm, and that becаuse Lopez-Jacuinde was convicted of possession of pseudoephedrine with intent to manufacture methamphetamine, any federal requirement as to the amount of pseudoеphedrine possessed was inapplicable.
II. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252 to review final removal orders issued by the BIA. However, we lack jurisdiction to review an order of removal against an aliеn removable for having committed an aggravated felony.
See
8 U.S.C. § 1252(a)(2)(C);
Cazarez-Gutierrez v. Ashcroft,
III. Discussion
We determine whether a state law conviction is an aggravated felony using either the categoricаl or modified categorical approach set forth in
Taylor v. United States,
A. Use of a Firearm Is Not Required for a State Conviction to Constitutе an Aggravated Felony as a “Drug Trafficking Crime”
An “aggravated felony” includes “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as definеd in section 924(c) of title 18, United States Code).” 8 U.S.C. § 1101(a)(43)(B). The Ninth Circuit has interpreted this text as providing two analytic routes through which a state drug felony may be classified as an aggravated felony: (1) if the state crimе contains a “trafficking element,” it is an aggravated felony under the “illicit trafficking in a controlled substance” prong of § 1101(a)(43)(B); or (2) if the state offense would be punishable as a felony under federal drug lаws, it is an aggravated felony under the “including a drug trafficking crime” prong of that section.
See Rendon v. Mukasey,
“Drug trafficking crime” is expressly defined in 18 U.S.C. § 924(c)(2) as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” 3 18 U.S.C. § 924(c)(1), however, provides for an enhanced punishment for the use or possession of a firearm in relation to a drug trafficking crime. Lopez-Jacuinde maintains that despite the expliсit definition of “drug trafficking crime” in § 924(c)(2), the relevant defini *1218 tion of “aggravated felony” found in 8 U.S.C. § 1101(a)(43)(B) includes the firearm element of § 924(c)(1) in its reference to the definition of “drug trafficking crime” in § 924(c). Therefore, he argues, Congress must have intended that to constitute an “aggravated felony” a “drug trafficking crime” must also involve use or possession of a firearm.
This argument is unpersuasive. The text of 8 U.S.C. § 1101(a)(43)(B) refers unambiguously to thе definition of drug trafficking crime found in § 924(c), despite containing a reference to § 924(c) as a whole. Paragraph 924(c)(2) in turn provides the definition of “drug trafficking crime” for all of subsection (c), with no reference to a firearm element. This definition is set off in a separate paragraph from § 924(c)(1), which by its terms is only an enhanced punishment provision. Thus, regardless of whether a defendant’s conduct involves the use of a firearm, it is by reference to § 924(c)(2) that a court will determine whether the conduct constitutes a drug trafficking crime. In fact, because § 924(c)(1) itself applies to drug trafficking crimes, a definition of “drug trafficking crime” that required the use of a firearm would render that paragraph strangely self-referential and confusingly circular. 4
We note that although § 1101(a)(43)(B) was amended in 1994— and that prior to these amеndments § 1101(a)(43)(B) referred with more precision to paragraph (2) of § 924(c) — this does not change our conclusion. As cogently explained by the Tenth Circuit in
United States v. Valenzuela-Escalante,
B. The Federal Crime Corresponding to § 11383(c)(1) Does Not Require Possession of a Minimum Amount of Pseudoephedrine
Lopez-Jacuinde also contends that his conviction for violating California Health and Safety Code § 11383(c)(1) is not a categorical aggravated felony because the state statute proscribes possession of any amount of pseudoephedrine with intent to manufacture methamphetamine, and the corresponding federal crime requires proof that the defendant possessed more than a certain amount of pseudoephedrine. This argument is without mеrit because the federal offense corresponding to Lopez-Jacuinde’s state conviction has no such requirement as to amount.
Lopez-Jacuinde’s argument relies on an attempt to incorporate federal regulatory provisions requiring that retail distributors keep records of high-quantity pseudoephedrine transactions into separate federal provisions criminalizing possession of pseudoephedrine with intent to manufacture methamphetamine. Our opinion in
United States v. Kim,
We have already rejected this argument in a similar context. See id. at 938-41. The defendant in Kim argued that the quantity requirements in the record-keeping scheme should apply to federal criminal provisions punishing the sale of pseudoephedrine by a person knowing or having reasonable cause to believe it would be used to manufacture a controlled substance. See id. at 939. We held that the thresholds as to amount set by the record-keeping requirements were not relevant to the criminal provisions. See id. at 939-40. The same reasoning is controlling here.
IV. Conclusion
We find no error in the BIA’s determination that Lopez-Jacuinde was convicted of an aggravated felony. Because the BIA correctly applied the relevant statutes, there was no due process violation.
PETITION DENIED.
Notes
. Section 11383 was amended after LopezJacuinde’s conviction in 2005. Likewise, 21 U.S.C. §§ 802, 830(b)(3), also relevant to this appeal, were amended during this period. Citations to these statutes are to the versions effective in 2005.
. Conviction of an aggravated felony renders an alien removable and ineligible for cancellation of removal. See 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1229b(a)(3).
. Lopez-Jacuinde's state offense is punishable as a federal crime under 21 U.S.C. § 841(c), possession of a listed chemical with intent to manufacture a controlled substance.
. Along similar lines, we observe that § 924(c) paragraphs (3) and (4) contain definitions of "crime of violence” and "brandish,” neither of which can sensibly be inсorporated into the definition of "drug trafficking crime.” This reinforces our conelusion that the general reference to § 924(c) was not intended to distract our attention from the definition found in paragraph (2) — a definition that applies by its own terms for all of § 924(c).
. The threshold for triggering the reporting requirements was lowered in the year 2000 from twenty-four grams to nine grams.