Roberto Roman-Suaste v. Eric Holder, Jr.

Filing

FILED OPINION (FORTUNATO P. BENAVIDES, KIM MCLANE WARDLAW and RICHARD R. CLIFTON) DENIED. Judge: RRC Authoring. FILED AND ENTERED JUDGMENT. [9228063]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERTO ROMAN-SUASTE, AKA
Roberto Roman,
Petitioner,

No. 12-73905
Agency No.
A092-354-044

v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 10, 2014—Pasadena, California
Filed September 4, 2014
Before: Fortunato P. Benavides,* Kim McLane Wardlaw,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton

*

The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

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ROMAN-SUASTE V. HOLDER
SUMMARY**

Immigration
The panel denied Roberto Roman-Suaste’s petition for
review of the Board of Immigration Appeals’ decision finding
him removable and ineligible for relief based on his
conviction for possession of marijuana for sale, in violation
of California Health & Safety Code § 11359.
The panel affirmed the Board of Immigration Appeals’
finding that a conviction under California Health & Safety
Code § 11359 is a categorical aggravated felony. The panel
held that the conviction contemplates distribution of
marijuana in exchange for remuneration, and that aiding and
abetting liability is no different under California law than
under federal law. The panel held that the conviction
therefore constitutes illicit trafficking in a controlled
substance, an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B).

COUNSEL
Yonaton M. Rosenzweig (argued) and Nicole Shimoda,
Katten Muchin Rosenman LLP, Los Angeles, California, for
Petitioner.
Stuart F. Delery, Assistant Attorney General, Linda S.
Wernery, Assistant Director, James E. Grimes, Senior
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Litigation Counsel, and Susan Bennett Green (argued), Trial
Attorney, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C., for
Respondent.

OPINION
CLIFTON, Circuit Judge:
Roberto Roman-Suaste, a native and citizen of Mexico,
was charged with being a removable alien on the basis of a
conviction for possession of marijuana for sale under
California Health & Safety Code (“CHSC”) § 11359. The
Board of Immigration Appeals held that a conviction under
CHSC § 11359 is categorically an aggravated felony. RomanSuaste was therefore found to be removable and ineligible for
various discretionary forms of relief from removal.
We agree with the BIA. Possession of marijuana for sale
under CHSC § 11359 contemplates a sale—that is,
distribution of marijuana in exchange for remuneration.
Furthermore, aiding and abetting liability under California
law is no different from aiding and abetting liability under
federal law. We therefore hold that a conviction for
possession of marijuana for sale under CHSC § 11359 is
categorically an aggravated felony, namely “illicit trafficking
in a controlled substance.” 8 U.S.C. § 1101(a)(43)(B).
Accordingly, we deny Roman-Suaste’s petition for review.1

1

Because we affirm the order of removal on the basis of the CHSC
§ 11359 conviction, we do not consider the other charges of removability.

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I. Background
Roman-Suaste, a native and citizen of Mexico, is a
permanent resident of the United States. In 2010, RomanSuaste was charged with possession of marijuana for sale
under CHSC § 11359. He pled nolo contendere and was
accordingly convicted and sentenced to three years’
imprisonment.
On the basis of this conviction, among others, the
Department of Homeland Security charged Roman-Suaste
with being removable as an aggravated felon under 8 U.S.C.
§ 1227(a)(2)(A)(iii) and as a controlled substances offender
under 8 U.S.C. § 1227(a)(2)(B)(i). In proceedings in front of
an Immigration Judge (“IJ”), Roman-Suaste admitted the
allegations against him. The IJ found Roman-Suaste
removable as charged and, in addition, concluded that his
aggravated felony rendered him ineligible for the various
forms of discretionary relief otherwise potentially available
to him. As such, the IJ ordered Roman-Suaste removed.
Roman-Suaste appealed to the BIA. The BIA dismissed
his appeal, holding that his CHSC § 11359 conviction
categorically qualified as an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(B).
Roman-Suaste petitioned for review of the BIA decision
affirming the IJ’s final order of removal against him. We
have jurisdiction under 8 U.S.C. § 1252(a). We review de
novo whether an offense constitutes an aggravated felony.
Carlos-Blaza v. Holder, 611 F.3d 583, 587 (9th Cir. 2010).

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II. Discussion
In determining whether an offense qualifies as an
“aggravated felony,” we generally apply the categorical
approach as laid out in Taylor v. United States, 495 U.S. 575
(1990). See, e.g., Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013). “Under this approach we look ‘not to the facts of the
particular prior case,’ but instead to whether ‘the state statute
defining the crime of conviction’ categorically fits within the
‘generic’ federal definition of a corresponding aggravated
felony.” Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S.
183, 186 (2007)). Only if the full range of conduct punishable
under the state statute at issue would also be punishable under
the generic definition is there a categorical match. See id.
The Immigration and Nationality Act (“INA”) defines the
term “aggravated felony” to include “illicit trafficking in a
controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section
924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). In turn, the
phrase “drug trafficking crime” is defined as, among other
things, “any felony punishable under the Controlled
Substances Act [(“CSA”)] (21 U.S.C. 801 et seq.).” 18 U.S.C.
§ 924(c)(2). Finally, a “felony” is an offense for which the
maximum term of imprisonment is “more than one year.”
18 U.S.C. § 3559(a)(5).
CHSC § 11359, the statute under which Ramon-Suaste
was convicted, provides that “[e]very person who possesses
for sale any marijuana, except as otherwise provided by law,
shall be punished by imprisonment pursuant to subdivision
(h) of Section 1170 of the Penal Code.” In turn, California
Penal Code § 1170(h) provides for a maximum term of

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imprisonment of three years, making offenses under CHSC
§ 11359 felonies under California law.
The comparable CSA provision is 21 U.S.C. § 841(a),
which states that “it shall be unlawful for any person
knowingly or intentionally—(1) to . . . possess with intent to
. . . distribute . . . a controlled substance.”2 Offenses under
this CSA provision are punishable as felonies, with one
exception: “distributing a small amount of marihuana for no
remuneration” is punishable only as a misdemeanor.
21 U.S.C. § 841(b)(4).
Roman-Suaste contends that CHSC § 11359 is not a
categorical match with its generic CSA counterpart and is
therefore not an aggravated felony because it punishes
conduct broader than that punishable under the CSA in two
ways. First, he contends that “possess[ion] for sale” does not
necessarily imply trafficking. Second, he argues that aiding
and abetting liability in California is broader than aiding and
abetting liability under federal law. Neither argument has
merit.
A. Possession for Sale
First, Roman-Suaste relies on Moncrieffe v. Holder,
133 S. Ct. 1678, and its predecessor cases, reading them as
taking a common-sense view—as opposed to a
counterintuitive or unorthodox one—of “illicit trafficking.”
He then argues that possession for sale under CHSC § 11359
can cover “distribution for insignificant payment, or payment

2

Marijuana is one of the many controlled substances scheduled under
the CSA. See 21 U.S.C. § 802(6); 21 C.F.R. § 1308.11(d)(23).

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for social, medical, or family purposes,” none of which
amount to “illicit trafficking” under his reading of the cases.
But Moncrieffe itself made clear that “[t]he presence of
remuneration would mean that paragraph (4)”—the exception
for distributing a small amount of marijuana for no
remuneration that Roman-Suaste attempts to rely upon—“is
not implicated.” Id. at 1686. Roman-Suaste’s interpretation
ignores the explicit definition of “drug trafficking crime,”
18 U.S.C. § 924(c)(2), a form of “illicit trafficking,” 8 U.S.C.
§ 1101(a)(43)(B). This definition instructs us to consider
whether the offense is punishable as a felony under the CSA.
See Moncrieffe, 133 S. Ct. at 1685. Under the CSA,
possession with intent to distribute is always punishable as a
felony where remuneration is involved. See id. at 1686. A
“sale,” as commonly understood, contemplates a transfer in
exchange for money or some other form of remuneration, and
California case law confirms this understanding. See People
v. Lazenby, 8 Cal. Rptr. 2d 541, 543 (Ct. App. 1992). In
addition, because “possession for sale” under CHSC § 11359
requires knowing possession and an intent to sell the
marijuana, this offense’s mens rea requirement corresponds
perfectly with the CSA’s “possession with intent to
distribute” offense, 21 U.S.C. § 841(a). See, e.g., United
States v. Martinez-Rodriguez, 472 F.3d 1087, 1096 (9th Cir.
2007).
Because “possession for sale” under CHSC § 11359
necessarily comprises only possession with intent to
distribute marijuana in exchange for remuneration,
convictions under that provision categorically qualify as
aggravated felonies.

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B. Aiding and Abetting Liability

Relying on the broad scope of third-party liability for
aiding and abetting under California law, Roman-Suaste also
argues that some conduct punishable under CHSC § 11359 is
not punishable under the CSA, such that the categorical
match between the state offense and the generic CSA offense
is defeated.
We reject this argument as well. Whatever differences
there may once have been between aiding and abetting
liability and liability as a principal no longer exist under
either federal or California law. See 18 U.S.C. § 2; Cal. Penal
Code § 971. Furthermore, the scope of aiding and abetting
liability in California, though broad, does not in practice
differ from that under federal law. See Duenas-Alvarez,
549 U.S. at 190–91; Martinez-Rodriguez, 472 F.3d at
1096–97.
Roman-Suaste cites to People v. Null, 204 Cal. Rptr. 580
(Ct. App. 1984), and United States v. Sliwo, 620 F.3d 630
(6th Cir. 2010), as exemplifying the alleged distinction
between aiding and abetting liability under California law and
that under federal law. We are not persuaded that those cases
illustrate any distinction of that nature.
To begin with, the model aiding and abetting jury
instruction under California law given in Null, CALJIC No.
3.01, does not materially differ from the jury instruction
under federal law approved for use in this circuit. Compare
Null, 204 Cal. Rptr. at 581 (“A person aids and abets the
commission of a crime if, with knowledge of the unlawful
purpose of the perpetrator of the crime, he aids, promotes,
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such crime.”), with Ninth Circuit Model Criminal Jury
Instruction 5.1 (requiring, for aiding and abetting liability,
that the government prove that “the defendant aided,
counseled, commanded, induced or procured [the principal]
with respect to at least one element of [the crime charged]”
and that “the defendant acted with the intent to facilitate [the
crime charged]”). Were Null a federal case, a conviction
based on aiding and abetting would have been just as
appropriate.
Nor does a comparison of Null and Sliwo demonstrate the
distinction asserted by Roman-Suaste. The facts and evidence
in the two cases were very different.
In Null, a conviction under CHSC § 11359 was affirmed
against a defendant who owned property on which two
marijuana gardens with plants six months old were found.
204 Cal. Rptr. at 580. A sophisticated drip irrigation system
was used to water the plants, fed out of a pump that served
the defendant’s home and powered by an electrical line tied
into the home. Id. The trial court refused to give a jury
instruction sought by the defendant to the effect that “mere
knowledge” of the marijuana did not constitute aiding and
abetting. Id. at 581. The state court of appeal agreed, holding
that a landowner may be held “responsible as an aider and
abettor for cultivation of contraband on his land if he had
knowledge of its presence for a sufficient length of time to
take corrective action.” Id. at 582.
Sliwo did not hold to the contrary. In that case, the Sixth
Circuit reversed a federal conviction for aiding and abetting
the possession of marijuana with intent to distribute on the
ground that the evidence was insufficient to prove that the
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marijuana.” Sliwo, 620 F.3d at 638. The defendant was seen
over a period of time in the vicinity of a van that at one point
contained marijuana, and may have served as a lookout when
the marijuana was actually loaded into the van, but he was not
present to see the marijuana actually loaded. Id. The panel
concluded that “it is a step too far to find that Defendant
knew that marijuana was in the van,” id., and that the
evidence “sa[id] nothing about whether [he] knew that the
ultimate purpose of the conspiracy was possession of
marijuana.” Id. at 634. That decision, which is not binding on
our court in any event, did not turn on any conclusion that the
federal standard for aiding and abetting was any different
from the standard in Michigan, where the events took place,
let alone the standard under California law applied to RomanSuaste.
III.

Conclusion

In sum, we hold that convictions for possession of
marijuana for sale under CHSC § 11359 categorically qualify
as aggravated felonies under the INA, 8 U.S.C.
§ 1101(a)(43)(B). Accordingly, the BIA did not err in
concluding that Roman-Suaste was removable and ineligible
for all forms of discretionary relief as an aggravated felon.
PETITION FOR REVIEW DENIED.

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