Davila v. Holder

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Davila v. Holder

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Case: 08-60530

Document: 00511212758

Page: 1

Date Filed: 08/24/2010

REVISED AUGUST 23, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 08-60530 June 15, 2010 Lyle W. Cayce Clerk P e titio n e r v. E r ic H. HOLDER, Jr., U.S. Attorney General, R espon dent

G ia n c a r lo DAVILA,

P e t it io n for Review of an Order of the Board of Immigration Appeals N o . 091 674 892

B e fo r e HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges. W . EUGENE DAVIS, Circuit Judge:* G ia n c a r lo Davila ("Davila") petitions for review of the Board of I m m ig r a t io n Appeals ("BIA") order dismissing his appeal from the Immigration J u d g e 's ("IJ") order finding him ineligible for cancellation of removal. For the fo llo w in g reasons, we grant Davila's petition and remand the case to the BIA for fu r t h e r proceedings consistent with this opinion.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 08-60530

Document: 00511212758

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Date Filed: 08/24/2010

No. 08-60530

I. D a v ila entered the United States from Peru in 1981, and became a lawful p e r m a n e n t resident in 1989. In 2003, he pleaded guilty to criminal sale of c o c a in e in the second degree under N.Y. PENAL LAW § 220.41 and to criminal p o s s e s s io n of a handgun under N.Y. PENAL LAW § 265.01. In 2007, the

D e p a r t m e n t of Homeland Security ("DHS") initiated removal proceedings a g a in s t Davila under 8 U.S.C. §§ 1227(a)(2)(B)(i), (a)(2)(C). In February 2008, t h e IJ ordered Davila removed to Peru and found Davila ineligible for d is c r e t io n a r y cancellation of removal because Davila's conviction for sale of c o c a in e in the second degree constituted an aggravated felony under 8 U.S.C. § 1 2 2 7 (a )(2 )(A )(iii). Davila appealed the IJ's determination that he was convicted o f an aggravated felony. In May 2008, the BIA dismissed Davila's appeal, a g r e e in g with the IJ that Davila committed an "aggravated felony," and thus w a s barred from applying for discretionary cancellation of removal under 8 U .S .C . § 1229b(a)(3).

II. "The BIA's determination that an alien is ineligible for discretionary relief in the form of cancellation of removal is a question of law that we review de n o v o ." Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). However, if a statute is ambiguous, we defer to the agency's interpretation of the p r o v is io n s it administers, so long as those interpretations are based on a p e r m is s ib le construction of the statute. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 8 3 7 , 843 (1984).

III.

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No. 08-60530 T h e Immigration and Nationality Act ("INA") provides that discretionary c a n c e lla t io n of removal is not available to anyone convicted of "any aggravated fe lo n y ." 8 U.S.C. § 1229b(a)(3). Davila's prior conviction for selling cocaine u n d e r N.Y. PENAL LAW § 220.41 is an aggravated felony if it constitutes a "drug t r a ffic k in g crime" as defined by the Controlled Substances Act ("CSA"). 8 U.S.C. § 1101(a)(43)(B). The CSA defines a drug trafficking crime to mean any felony p u n is h a b le under the CSA. 18 U.S.C. § 924(c)(2). In Lopez v. Gonzales, the S u p r e m e Court held that "a state offense constitutes a `felony punishable under t h e [CSA]' only if it proscribes conduct punishable as a felony under that federal la w ." 549 U.S. 47, 60 (2006). Thus, the question narrows to whether Davila's c o n v ic t io n under N.Y. PENAL LAW § 220.41 is a felony under the CSA. T o determine whether a state crime proscribes conduct punishable by the C S A , we use a "categorical approach." Larin-Ulloa v. Gonzales, 462 F.3d 456, 4 6 3 (5th Cir. 2006); Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005). Under t h is approach, "we refer only to the statutory definition of the crime for which t h e alien was convicted" and ask whether every possible conviction under that s t a t u t e is a felony under the CSA. Larin-Ulloa, 462 F.3d at 463. Put another w a y , the lone inquiry is whether there is a possibility that Davila could have v io la t e d N.Y. PENAL LAW § 220.41 without violating the CSA. See Taylor v. U.S., 4 9 5 U.S. 575, 599­602 (1990). N.Y. PENAL LAW § 220.41 provides that "a person is guilty of criminal sale o f a controlled substance in the second degree when he knowingly and u n la w fu lly sells [one-half ounce or more of cocaine]." However, one may be c o n v ic t e d of "selling" under N.Y. PENAL LAW § 220.41 for merely offering to sell, e x c h a n g e , or give a controlled substance. N.Y. PENAL LAW § 220.00. In

c o m p a r is o n , the CSA provides that "it shall be unlawful for any person to k n o w in g ly or intentionally . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). Distribution under the CSA requires "the actual, constructive, or 3

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No. 08-60530 a t t e m p t e d transfer of a controlled substance." 21 U.S.C. § 802(8), (11). Because D a v ila could have been convicted under N.Y. PENAL LAW § 220.41 for an offer to s e ll (which is not an offense under the CSA), he has not categorically committed a drug trafficking crime. T h is conclusion is supported by our case law. We have addressed the same is s u e created by similar statutes that punish "offers to sell" in determining w h e t h e r they constitute drug trafficking crimes under the U.S. Sentencing G u id e lin e s ("USSG").* * Although we have not considered N.Y. PENAL LAW § 2 2 0 .4 1 before, we have found that a violation of § 220.39 for criminal sale of c o n t r o lle d substances in the third degree does not constitute a drug trafficking c r im e under the USSG for this reason. See U.S. v. Stanley, 281 F. App'x 370, 372 (5 t h Cir. 2008) (unpublished). A ls o much like N.Y. PENAL LAW § 220.41, TEX. HEALTH & SAFETY CODE § 481.112(a) criminalizes the "deliver[y] of controlled substances," where delivery in c lu d e s "offering to sell a controlled substance." See TEX. HEALTH & SAFETY C ODE § 481.002. We have consistently held that convictions for delivery of c o n t r o lle d substances under TEX. HEALTH & SAFETY CODE § 481.112(a) do not q u a lify as drug trafficking offenses because the convictions might be for "offers t o sell," and therefore the Texas statute is broader in scope than the CSA. See, e .g ., U.S. v. Price, 516 F.3d 285, 287 (5th Cir. 2008) (finding it dispositive that " t h e definition of `drug trafficking offense' under the guidelines does not include a n offer to sell"). See also U.S. v. Gonzales, 484 F.3d 712, 714­15 (5th Cir. 2007); Morales-Martinez, 496 F.3d at 358. We have reached the same conclusion with r e g a r d to a similar provision of the California Health and Safety Code. See U.S.

We have previously found that because the definitions of "drug trafficking crime" are effectively identical between the USSG and the CSA, CSA cases may rely on determinations of drug trafficking crimes made in the sentencing context. Vasquez-Martinez, 564 F.3d at 717­19.

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No. 08-60530 v . Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Following these cases,

b e c a u s e N.Y. PENAL LAW § 220.41 prohibits "offers to sell," it exceeds the scope o f the CSA. A n examination of documents we are permitted to consider in addition to t h e categorical approach has not been helpful. These documents are generally l i m i t e d to the charging document, written plea agreement, transcript of plea c o llo q u y , and any explicit factual finding by the trial judge to which the d e fe n d a n t assented. See Shepard v. U.S., 544 U.S. 13, 16 (2005). In this case, e x a m in in g these documents does not reveal anything about the nature of D a v ila 's "sale," because the indictment merely tracks the language of the s t a t u t e . Thus, the record fails to establish that Davila's conviction under N.Y. P ENAL LAW § 220.41was not merely for an offer to sell.

C O N C L U S IO N B e c a u s e we find that the record is insufficient to establish that Davila's c o n v ic t io n under N.Y. PENAL LAW § 220.41 is an aggravated felony under 8 U .S .C . § 1101(a)(43), we GRANT Davila's petition for review and REMAND to t h e BIA for further proceedings consistent with this opinion. G R A N T PETITION. REM AND.

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