Case Information
*1 BEFORE: KEITH and COLE, Circuit Judges; and OLIVER, District Judge. [*]
R. GUY COLE, JR., Circuit Judge. Benjamin Mendieta-Robles, a lawfully admitted alien from Mexico, petitions this Court for review of a final order of the Board of Immigration Appeals (“BIA”), affirming an immigration judge’s order that he be removed as an aggravated felon. Mendieta-Robles pleaded guilty to selling or offering to sell 1,000 grams of cocaine, a felony under Ohio Revised Code (“ORC”) § 2925.03(A)(1). The immigration judge determined that this conviction qualified as a drug-trafficking “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), subjecting Mendieta-Robles to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii). Because we hold that Mendieta-Robles’s Ohio conviction does not qualify as an aggravated felony under the INA, we REVERSE the BIA’s order dismissing Mendieta-Robles’s appeal and REMAND this case to the BIA for entry of an order terminating deportation proceedings against Mendieta-Robles.
I. BACKGROUND
Mendieta-Robles, a citizen and native of Mexico, was lawfully admitted to the United States in 1996 as a conditional resident and adjusted to permanent-resident status in 1999.
In October 2002, Mendieta-Robles was arrested and charged in a two-count indictment with (1) trafficking in cocaine, and (2) possession of cocaine, in violation of ORC §§ 2925.03 and 2925.11, respectively. Count One read as follows:
Benjamin Medieta . . . , on or about the 8th day of October in the year of our lord, 2002, within the county of Franklin aforesaid, in violation of section 2925.03 of the Ohio Revised Code, did knowingly sell or offer to sell a controlled substance included in Schedule II, to wit: methylbenzoylecgonine, commonly known as cocaine in an amount equal to or exceeding one thousand(1,000) grams of cocaine as defined in section 2925.01 of the Ohio Revised Code . . . .
(JA 105.) In September 2003, Mendieta-Robles pleaded guilty to Count One only, without specification, a felony in the first degree. The Franklin County Court of Common Pleas sentenced Mendieta-Robles to four years’ imprisonment and suspended his drivers license for six months.
Soon after, the Department of Homeland Security initiated removal proceedings against Mendieta-Robles, under 8 U.S.C. § 1227(a)(2)(A)(iii), as an admitted alien who had been convicted of an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43). Specifically, the definition of aggravated felony includes “drug trafficking crimes” and crimes involving “illicit trafficking in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B). At his removal hearing, Mendieta-Robles conceded that he was convicted under ORC § 2925.03(A)(1) of knowingly selling or offering to sell a controlled substance, and did not contest the amount of the controlled substance. Mendieta-Robles argued, however, that the statute was divisible and that a mere offer to sell is not an aggravated felony. On October 20, 2003, an immigration judge concluded that Mendieta-Robles’s conviction under ORC § 2925.03(A)(1) qualified as an aggravated felony and ordered Mendieta-Robles removed to Mexico. Mendieta-Robles timely appealed to the BIA.
The BIA affirmed the immigration judge’s order and dismissed Mendieta-Robles’s appeal, concluding that Mendieta-Robles had been convicted of an aggravated felony within the meaning of the INA and Sixth Circuit law. Mendieta-Robles timely appealed.
II. DISCUSSION
We review de novo whether a state drug conviction qualifies as an aggravated felony under
the INA.
Patel v. Ashcroft
,
An admitted alien may be deported if he is convicted of an “aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines a multitude of offenses that qualify as aggravated felonies—for example, murder, rape, laundering over $10,000, managing a prostitution business, and commercial counterfeiting. See 8 U.S.C. § 1101(a)(43). Certain drug offenses may also amount to aggravated felonies if they fall within the following definition: “illicit trafficking in a controlled substance (as defined in [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C. § 924(c)]).” 8 U.S.C. § 1101(a)(43)(B). In 18 U.S.C. § 924(c)(2), “the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.),” or two other federal acts not relevant here. The term “aggravated felony” applies to violations of both federal and state law. 8 U.S.C. § 1101(a)(43).
We have interpreted the INA’s definition to provide two routes for a state drug conviction
to qualify as an aggravated felony.
United States v. Palacios-Suarez
,
To determine whether a prior conviction should be considered an aggravated felony for
deportation purposes, we start with the analytical model constructed by the United States Supreme
Court in
Taylor v. United States
,
Therefore, we must first analyze the statute that formed the basis of Mendieta-Robles’s
conviction. ORC § 2925.03 is a broad statute that reads in relevant part as follows: “No person shall
knowingly . . . [s]ell or offer to sell a controlled substance[.]” ORC § 2925.03(A)(1). The statute
punishes a broad range of conduct: an individual can be convicted under it for either selling drugs
or merely offering to sell drugs, without possession or even transfer to a buyer.
State v. Chandler
,
The relevant documents and judicially noticeable facts do not indicate whether Mendieta-
Robles was convicted of selling or merely offering to sell cocaine. Mendieta-Robles pleaded guilty
to Count One only: “in violation of section 2925.03 . . . [Mendieta-Robles] did sell or offer to sell
at least one thousand (1,000) grams of cocaine that is not crack cocaine . . . .” (JA 105.) No other
documents help clarify whether Mendieta-Robles did anything more than offer 1,000 grams of
cocaine for sale, exchange, barter, or gift. Nothing in the record indicates whether Mendieta-Robles
even possessed cocaine. To be sure, Mendieta-Robles did not plead guilty to Count 2 (possession
of cocaine). The only indication that Mendieta-Robles may have done more than simply offer to gift
cocaine is the title of Ohio’s statutory section to which he pleaded: “Trafficking offenses.” ORC §
2925.03. How a state titles its statutory provisions, however, is irrelevant for determining the nature
of the statute a defendant was convicted under.
See Warner v. Zent
,
We now turn to whether Mendieta-Robles’s Ohio conviction qualifies as an aggravated felony under the two routes: (1) the “illicit trafficking” approach, and (2) the “hypothetical federal felony” approach. We conclude that it does not.
A. “Illicit Trafficking” Approach
Under the “illicit trafficking” approach, a state drug conviction is an aggravated felony if it
is (1) a felony under state law, and (2) contains a trafficking element.
Garcia-Echaverria
, 376 F.3d
at 512;
Gerbier
,
Mendieta-Robles’s conviction does not contain a trafficking element. A trafficking element
involves the “unlawful trading or dealing of a controlled substance.”
Garcia-Echaverria
, 376 F.3d
at 513 (citing
Gerbier
,
The Attorney General argues that Mendieta-Robles’s conviction falls within the definition of “illicit trafficking” because either portion of the statute—selling or merely offering to sell cocaine—is, at least, “an attempt to sell cocaine for consideration—i.e. unlawful trading or dealing for profit.” (Att’y Gen. Br. 10 (underline omitted).) This argument, however, ignores ORC § 3719.01(AA), which defines “sale” to include gift—a form of transfer that does not require consideration. See, e.g. , Guethlein v. Ohio State Liquor Control Comm ., No. 05AP-888, 2006 WL 827434, at *3 (Ohio App. Mar. 30, 2006) (“The usual and customary meaning of ‘gift’ is a ‘voluntary transfer of property to another made gratuitously and without consideration.’” (quoting Black’s Law Dictionary 688 (6th ed. 1990))).
Accordingly, an individual may be convicted under ORC § 2925.03(A)(1) without trading
or dealing in a controlled substance for profit. Here, neither the relevant documents nor judicially
noticeable facts indicate whether Mendieta-Robles engaged in commercial trading or dealing of
cocaine. Mendieta-Robles’s conviction is therefore insufficient to establish that the underlying crime
involved “illicit trafficking.”
See, e.g.
,
Rivera-Sanchez
,
B. “Hypothetical Federal Felony” Approach
Under the “hypothetical federal felony” approach, a state drug conviction is an aggravated
felony if it would be punishable as a felony under the Controlled Substances Act, regardless of
whether the conviction is a felony or a misdemeanor under state law.
Garcia-Echaverria
, 376 F.3d
at 512;
Gerbier
,
The Attorney General argues that, as the BIA found, Mendieta-Robles’s state conviction is analogous to a felony conviction under two sections of the Controlled Substances Act: 21 U.S.C. §§ 841(a)(1) and 846. We hold that neither are analogous.
As an initial matter, § 841(a)(1) is not analogous to ORC § 2925.03(A)(1). Section 841(a)(1) makes it unlawful for any person to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” “The term ‘distribute’ means to deliver . . . a controlled substance . . . .” 21 U.S.C. § 802(11). Because ORC § 2925.03(A)(1) encompasses convictions where the individual neither possessed nor transferred a controlled substance, it is difficult to see how 21 U.S.C. § 841(a)(1) is analogous to the Ohio statute. It would mean that offering to sell cocaine is the same as delivering cocaine.
Moreover, the relevant documents and judicially noticeable facts fail to establish that
Mendieta-Robles had the requisite mens rea to commit a distribution crime. To be convicted under
ORC § 2925.03(A)(1), an individual need only intend to offer to sell a controlled substance.
Chandler
,
The Attorney General’s argument that Mendieta-Robles’s Ohio conviction is analogous to
a conviction under § 846 must fail for the same reason. To be convicted of attempted distribution,
the Government must prove that (1) the defendant acted “with the kind of culpability otherwise
required for the commission of the crime which he is charged with attempting,” and (2) the
defendant “engaged in conduct constituting a substantial step toward commission of the crime . . . .”
United States v. Stone
,
C. Matter of Garcia-Torres
A recent BIA decision supports our analysis. In Matter of Garcia-Torres , No. A45-864-724, (BIA Oct. 19, 2006), the BIA held that there was insufficient evidence to conclude that Garcia- Torres’s two convictions under ORC § 2925.03(A) qualified as an “aggravated felony” under the INA. The BIA first addressed the “hypothetical federal felony” approach. The BIA explained that offering to sell a controlled substance can be simplified to a verbal or written communication, which entails no physical delivery of a controlled substance, and, without the act of delivery, Garcia-Torres could not be found to have distributed cocaine. Similarly, the BIA also concluded that Garcia- Torres’s conviction did not amount to an aggravated felony under the “illicit drug trafficking” approach. The BIA found that the record failed to disclose whether Garcia-Torres was convicted of selling cocaine for profit. The BIA noted that it is possible for an individual to be convicted under ORC § 2925.03(A)(1) without trading or dealing in a controlled substance for profit. Even though the BIA found that the record did not support a conclusion that Garcia-Torres’s conviction qualified as an aggravated felony, the BIA remanded the case to the immigration court to allow both parties the opportunity to introduce evidence as to whether either of Garcia-Torres’s convictions qualified as an aggravated felony under the INA.
Although we agree with the BIA’s analysis in
Garcia-Torres
, a remand in this case is
unnecessary. As already noted, reviewing courts “must look only to the statutory definitions of the
prior offenses,” and may not “consider other evidence concerning the defendant’s prior crimes,”
including, “the particular facts underlying [a] conviction[].”
Taylor
,
D. Two Recent Supreme Court Decisions
Finally, the Attorney General calls our attention to two recent Supreme Court decisions:
Gonzales v. Duenas-Alvarez
,
In Duenas-Alvarez , the Supreme Court addressed whether a conviction for aiding and abetting a theft, under California law, qualified as a “generic theft offense” under the INA. 127 S. Ct. at 820. In holding that the California conviction qualified, the Supreme Court rejected Duenas- Alvarez’s argument that the California statute, under which he was convicted, punished conduct outside the scope of generic definition of theft (as the term is now used in the criminal codes of most states). Id . at 822. The Supreme Court explained that,
[m]oreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Id .
The Attorney General takes
Duenas-Alvarez
to mean that we should proceed assuming
Mendieta-Robles was convicted of selling cocaine instead of offering to sell cocaine because it is
less likely he was simply a cocaine offerer—despite the relevant documents’ silence as to the
specifics of Mendieta-Robles’s conviction. This argument fails for two reasons. First, it requires
us to ignore the clear language of ORC § 2925.03(A)(1) (“No person shall . . . [s]ell or offer to sell
a controlled substance”), which expressly and unequivocally punishes both sales and offers. Second,
that a defendant could be convicted under ORC § 2925.03(A)(1) for offering to sell a controlled
substance is not a “theoretical possibility,” nor does it require “the application of legal imagination.”
Rather, as the Ohio Supreme Court has repeatedly stated, “[u]ndoubtedly, a person can be convicted
for offering to sell a controlled substance in violation of [ORC] § 2925.03(A)(1) without actually
transferring a controlled substance to the buyer.”
Chandler
,
Neither does
James v. United States
assist the Attorney General. In
James
, the Supreme
Court addressed whether attempted burglary, under Florida law, is a “violent felony” under the
Armed Career Criminal Act.
Here, the Attorney General relies on
James
to contend that “selling” is the ordinary
conviction under ORC § 2925.03(A)(1) and “offering to sell” is merely a conceivable factual offense
covered by the statute. We do not agree for the same two reasons that
Duenas-Alvarez
is inapposite.
First, “offering to sell” is more than a conceivable factual offense covered by ORC § 2925.03(A)(1).
Section 2925.03(A)(1) by its own terms expressly contemplates and punishes offers to sell. ORC
§ 2925.03(A)(1) (“No person shall . . . [s]ell or offer to sell a controlled substance”). Moreover, as
noted, the Ohio Supreme Court has repeatedly stated that an offense under section 2925.03(A)(1)
is complete merely by making an offer to sell.
See, e.g.
,
Chandler,
III. CONCLUSION
For the foregoing reasons, we REVERSE the BIA’s order dismissing Mendieta-Robles’s appeal and REMAND this case to the BIA for entry of an order terminating deportation proceedings against Mendieta-Robles.
Notes
[*] The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.