Charles Clarke v. Eric Holder, Jr.



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Charles Clarke v. Eric Holder, Jr. Doc. 0 Case: 07-60445 Document: 00511188732 Page: 1 Date Filed: 07/29/2010 REVISED JULY 29, 2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 27, 2010 N o . 07-60445 S u m m a r y Calendar Lyle W. Cayce Clerk C H A R L E S EGBERT CLARKE, also known as Shawn Phillips, also known as C h a r lie Charkes, also known as Charles Clark, also known as Sean C Phillips, a ls o known as Karl J Clarke, also known as Junior Davis, also known as Junior S m it h , also known as Charle Willmoe, also known as Rambo Gibbs, also known a s Junior Kojak, also known as Shan Phillips P e titio n e r v. E R I C H HOLDER, JR, U S ATTORNEY GENERAL R espon dent P e t itio n for Review of an Order of the Board of Immigration Appeals B I A No. A39 059 578 B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. O N PETITION FOR REHEARING EN BANC P E R CURIAM:* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 07-60445 Document: 00511188732 Page: 2 Date Filed: 07/29/2010 No. 07-60445 T r e a t in g the Petition for Rehearing En Banc as a Petition for Panel R e h e a r in g , the Petition for Panel Rehearing is GRANTED in part. Accordingly, w e WITHDRAW our previous opinion and replace it with the following opinion. C la r k e petitioned this court for review of the decision of the Board of Im m ig ra tio n Appeals (BIA) dismissing his appeal and affirming the immigration ju d g e 's (IJ) order finding him ineligible for cancellation of removal because he h a d committed an aggravated felony; removable pursuant to 8 U.S.C. 1227(a)(2)(B)(i) because he had been convicted of a controlled substance v io la t io n ; and removable pursuant to 8 U.S.C. 1227(a)(2)(A)(iii) because he had b e e n convicted of an aggravated felony. I n the now-withdrawn opinion, filed in December 2009, this panel relied o n Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68 (5th Cir. 2009), and held t h a t the BIA did not err in finding Clarke committed an aggravated felony based u p o n his 2006 conviction in New York of criminal possession of crack cocaine in t h e seventh degree after he had been convicted in New York in 1995 of criminal p o s s e s s io n of cocaine in the seventh degree. On June 14, 2010, the Supreme C o u r t unanimously reversed our decision in Carachuri-Rosendo. CarachuriR o s e n d o v. Holder, No. 09-60, 2010 U.S. LEXIS 4764, 560 U.S. ____ (June 14, 2 0 1 0 ), rejecting this court's "hypothetical approach" and holding that "the d e fe n d a n t must also have been actually convicted of a crime that is itself p u n is h a b le as a felony under federal law." Id. at *32, *35. C a r a c h u r i-R o s e n d o , however, does not carry the day for Clarke, because t h e BIA found Clarke removable as an aggravated felon, and thus ineligible for ca n c e lla t io n of removal, for two independent reasons. Although we had no reason t o address the Board's alternate finding in our earlier opinion, Clarke was also c o n v ic t e d in 1991 for attempted criminal sale of cocaine in the third degree, in v io la t io n of 110 and 220.39(1) of the N.Y. PENAL LAW. "To qualify as an `a g g r a v a t e d felony' under the [Immigration and Nationality Act (INA)], the 2 Case: 07-60445 Document: 00511188732 Page: 3 Date Filed: 07/29/2010 No. 07-60445 c o n d u c t prohibited by state law must be punishable as a felony under federal l a w ."1 Carachuri-Rosendo, 2010 U.S. LEXIS 4764, at *35 (citing Lopez v. G o n z a le s , 549 U.S. 47, 60 (2006)). The BIA properly found that Clarke's c o n v ic t io n for attempted criminal sale of cocaine encompassed conduct p u n is h a b le as a felony under the Controlled Substances Act (CSA), 21 U.S.C. 8 4 1 (a )(1 ) and 846, attempted possession of cocaine with intent to distribute. A recent panel of this court stated that "we have found that a violation of [N .Y . PENAL LAW] 220.39 for criminal sale of controlled substances in the third d e g r e e does not constitute a drug trafficking crime under the [United States S en ten cin g Guidelines]" because statutes that punish "offers to sell" are not drug t r a ff ic k in g crimes under the CSA. Davila v. Holder, No. 08-60530, 2010 U.S. A p p . LEXIS 12230, at *5 (5th Cir. June 15, 2010) (unpublished) (citing United S ta te s v. Stanley, 281 F. App'x 370, 372 (5th Cir. 2008) (unpublished)).2 Stanley, h o w e v e r , actually held that "a conviction under New York Penal Statute 220.39, based on the text of the statute alone, is not a conviction for a drug t r a ffic k in g offense." Stanley, 281 F. App'x at 372 (emphasis added). Using the m e t h o d approved by the Supreme Court in Shepard v. United States, 544 U.S. 1 3 , 16 (2005), the court in Stanley looked to the charging instrument and to "the la w of the jurisdiction in which the guilty plea was entered" to determine w h e t h e r the defendant was subject to a sentencing enhancement under the c a t e g o r ic a l approach. Id. Under New York law, a guilty plea "constitutes an We note that under 8 U.S.C. 1101(a)(43)(U), an attempt to commit any of the offenses described therein is an aggravated felony. We have previously held that because "the Guidelines definition of `controlled substance offense' is nearly identical to the definition of conduct defined as a felony under the Controlled Substances Act," Vasquez-Martinez v. Holder, 564 F.3d 712, 719 (5th Cir. 2009), CSA cases may rely on determinations of drug trafficking crimes made in the sentencing context. Davila, 2010 U.S. App. LEXIS at **5-6. . 2 1 3 Case: 07-60445 Document: 00511188732 Page: 4 Date Filed: 07/29/2010 No. 07-60445 e ffe c t iv e judicial admission by a defendant that he committed the acts charged in the accusatory instrument." People v. Lee, 448 N.E.2d 1328, 1329 (N.Y. 1983). S ta n le y noted that while the statutory definition of "to sell" contained in 220.39 encompassed an "offer to sell," see N.Y. PENAL LAW 220.00(1), S t a n le y 's indictment alleged that she committed "a violation of 220.39[1] `as fo llo w s .' The indictment alleges that she `sold . . . cocaine.'" Stanley, 281 F. App'x a t 373. "When determining whether a prior offense is a drug-trafficking offense, t h e court may also consider documents such as the charging instrument and the ju r y instructions." United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007) (p e r curiam). In United States v. Gutierrez-Ramirez, we stated that we could not u s e an indictment to narrow the offense of conviction where "the indictment m e r e ly tracks the language of the statute, and includes language relating to c o n d u c t that would not qualify as a `drug trafficking offense.'" 405 F.3d 352, 359 (5 t h Cir. 2005). In Stanley, however, the indictment alleged that Stanley " k n o w in g ly and unlawfully sold" cocaine, "conduct which falls within the d e fin it io n of `drug trafficking offense.'" Stanley, 281 F. App'x at 373. The court r e je c t e d Stanley's contention that it should "interpret [the word] `sold' in her in d ic t m e n t to encompass all of the alternative definitions provided in 2 2 0 .0 0 (1 ), including `offer to sell.'" Id. Giving the term "to sell" as it is used w ith in the statutory definition of "sell" its ordinary meaning, the court concluded t h a t the district court had not committed plain error when it determined S t a n le y 's 220.39 conviction was a drug trafficking offense. T h e record is sufficient to establish that Clarke's conviction under N.Y. P ENAL LAW 220.39 is a drug trafficking crime under the CSA. The record in d ic a te s Clarke pleaded guilty to 220.39. Under New York law, this plea c o n s t it u t e s a judicial admission of commission of the acts charged in the i n d i c t m e n t . Lee, 448 N.E.2d at 1329. Because a violation of 220.39 may e n c o m p a s s conduct that does not qualify as a drug trafficking crime under the 4 Case: 07-60445 Document: 00511188732 Page: 5 Date Filed: 07/29/2010 No. 07-60445 C S A , we consider Clarke's indictment. The language in Clarke's indictment is v ir t u a lly indistinguishable from the indictment discussed in Stanley. It accuses C la r k e of the crime of criminal sale of a controlled substance in the third degree ( 220.39) "as follows: The defendants, each aiding the other, on or about March 2 0 , 1989, in the County of Kings, knowingly and unlawfully sold a narcotic drug, n a m e l y : cocaine, to a person known to the grand jury." As in Stanley, Clarke's in d ic t m e n t does not merely track the language of the statute--it alleges he "sold" c o c a in e to another individual. Like the panel in Stanley, we accord the word " s o ld " its ordinary meaning and conclude that the record establishes Clarke's 220.39 conviction was not for an "offer to sell," and that it therefore constitutes a drug trafficking crime under the CSA. Cf. Davila, 2010 U.S. App. LEXIS at *7 (" I n this case, examining these documents does not reveal anything about the n a t u r e of Davila's `sale,' because the indictment merely tracks the language of t h e statute. Thus, the record fails to establish that Davila's conviction under N .Y . PENAL LAW 220.41 was not merely for an offer to sell."). T h e Supreme Court's decision in Carachuri-Rosendo did not disturb our o t h e r conclusions. We recount them here. Clarke's claims that several due p r o c e s s violations occurred with respect to his removal proceedings were not e x h a u s t e d before the BIA, and we therefore lack jurisdiction to consider them. S e e Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam). Clarke also p r e v io u s ly filed a petition for review (PFR) of the BIA's denial of his motion for r e c o n s id e r a tio n , raising arguments identical to arguments raised with respect t o Clarke's PFR from the BIA's dismissal of his appeal. Accordingly, Clarke's P F R from the denial of his motion for reconsideration lacks merit for the same r e a s o n s stated above. The Government also moved to dismiss Clarke's PFR from t h e denial of his motion for reconsideration. F o r the reasons stated above, Clarke's PFR from the dismissal of his a p p e a l is DENIED, his PFR from the denial of his motion for reconsideration is 5 Case: 07-60445 Document: 00511188732 Page: 6 Date Filed: 07/29/2010 No. 07-60445 D E N I E D , and the Government's motion to dismiss is DENIED as unnecessary. A ll other motions pending before this court are DENIED. 6

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