Ramon Gomez v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges. Total Pages: 4.

Case: 13-2092

Document: 003111529885

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Date Filed: 02/10/2014

NOT PRECEDENTIAL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

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“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.
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§§ 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
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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.
4