Evanson v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-19-2008
Evanson v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 07-2509
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2509
___________
WISTER EVANSON
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
___________
Petition for Review of an Order
of the Board of Immigration Appeals
(No. A 37-592-428)
___________
Argued September 11, 2008
Before: SLOVITER, FUENTES, and ALDISERT,
Circuit Judges
(Filed: December 19, 2008 )
Martin A. Kascavage, Esq. (Argued)
Schoener & Kascavage
400 Market Street, Suite 420
Philadelphia, PA 19106-0000
Attorney for Petitioner
Richard M. Evans, Esq.
Michelle G. Latour, Esq.
Virginia M. Lum, Esq.
Kohsei Ugumori, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
Attorneys for Respondent
OPINION OF THE COURT
FUENTES, Circuit Judge:
Wister Evanson, a native and citizen of Trinidad and
Tobago, pled guilty to possession of marijuana with intent to
deliver and criminal conspiracy in violation of Pennsylvania
law. After the state judge sentenced him to probation and
community service, the Department of Homeland Security
(“DHS”) commenced removal proceedings. The Immigration
Judge (“IJ”) found that Evanson’s offense did not constitute an
aggravated felony and granted cancellation of removal.
However, based on information found only in a sentencing
document, the Board of Immigration Appeals (“BIA”) found
that the offense constituted an aggravated felony and ordered
removal. For the reasons that follow, we conclude that the BIA
erred in failing to apply the modified categorical approach set
forth in Taylor v. United States, 495 U.S. 575 (1990), and
Shepard v. United States, 544 U.S. 13 (2005), and therefore
erred when it considered Evanson’s sentencing document to
determine whether he had been convicted of an aggravated
felony. We will thus grant the Petition and remand for further
2
proceedings.
I.
Wister Evanson, 42, was admitted to the United States as
a permanent resident in December of 1981. In March 2005,
Evanson was a passenger in a car owned and driven by
Stephanie Ofori, his girlfriend, when they were hit by a drunk
driver.1 Police responding to the accident found marijuana in
the car and arrested Evanson. According to the Affidavit of
Probable Cause attached to the Police Criminal Complaint, the
marijuana was in a large black trash bag found on the back seat
of the car and was divided into one large zip-lock bag, two
medium-sized zip-lock bags, and one-hundred small zip-lock
bags. The Criminal Complaint also alleged that a marijuana
cigarette was found in Evanson’s pocket.
Evanson pled guilty in Pennsylvania state court to a
criminal information charging him with committing a controlled
substance offense in violation of 35 Pa. Stat. Ann. § 780-
113(a)(30), and criminal conspiracy to commit that offense in
violation of 18 Pa. Stat. Ann. § 903. 35 Pa. Stat. Ann. § 780-
113 states:
(a) The following acts and the causing thereof
within the Commonwealth are hereby prohibited:
....
(30) Except as authorized by this act, the
manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance by
a person not registered under this act, or a
practitioner not registered or licensed by the
appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a
counterfeit controlled substance.
Mirroring the language of the statute, the information alleged
that Evanson “did manufacture, deliver, or possess with an
intent to manufacture or deliver a controlled substance(s), to wit:
MARIJUANA.” (Administrative Record (A.R.) 238.) These
counts of the information did not contain any additional detail
1
Ofori is the mother of Evanson’s youngest child. At the
time, Evanson was living with Starlette Sumpter, the mother of
his other children.
3
about the offenses.
Evanson was sentenced to thirty-six months’ probation
and community service. The judgment of sentence stated that
Evanson was charged with “intent to deliver or manufacture
marijuana .4841 lbs drug schedule I.” (A.R. 252.)
Following his sentencing, DHS commenced removal
proceedings against Evanson. Specifically, DHS charged
Evanson with removability under 8 U.S.C. § 1227(a)(2)(A)(iii),
which provides that “[an] alien who is convicted of an
aggravated felony at any time after admission is deportable,”
and under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that an
alien who at any time after admission has been
convicted of a violation of (or a conspiracy or
attempt to violate) any law or regulation of a
State, the United States, or a foreign country
relating to a controlled substance (as defined in
section 802 of Title 21), other than a single
offense involving possession for one’s own use of
30 grams or less of marijuana, is deportable.
Evanson denied the charges of removability.
At Evanson’s first hearing, the IJ noted that he was
required to consider “what [Evanson was] found guilty of or
pleaded guilty to” rather than the facts of the underlying offense.
(A.R. 70.) The IJ then held that the Criminal Complaint was not
“sufficient evidence” of the elements to which Evanson pled
guilty because it had been superceded by an information. (A.R.
69, 70-71.) The hearing was adjourned to give the Government
an opportunity to supplement the record with evidence that
would establish the elements of the offense to which Evanson
pled guilty, namely a copy of the information and a transcript of
Evanson’s plea colloquy.
At a hearing in December 2006, the IJ reviewed the
criminal information—no transcript of the plea colloquy was
presented despite the IJ’s suggestion—and found that it did not
establish that Evanson’s offense involved payment. The IJ
therefore found that Evanson’s offense “could qualify as a
Federal misdemeanor.” (A.R. at 82.)
Accordingly, the IJ found that the Government had not
established that Evanson had been convicted of an aggravated
4
felony and dismissed that count of the removability proceeding.
The IJ concluded that Evanson was nonetheless removable
pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) because he had been
convicted of violations of laws or regulations related to a
controlled substance.2
Evanson then presented an application for cancellation of
removal under 8 U.S.C. § 1229b(a), which provides relief from
removal for certain long-time permanent residents. At a hearing
on the application, Evanson testified that the night before his
arrest a friend placed a bag of marijuana in the trunk of Ofori’s
car and forgot to take it with him when he got out of the car.
Evanson denied that he knew that the marijuana was left in the
car or the volume of marijuana. The next day, Ofori was driving
Evanson home when they were hit by a drunk driver. A police
officer witnessed the accident and asked Ofori to follow him
while he pursued the driver. Once the driver was stopped,
another officer indicated that he smelled marijuana and asked to
search Ofori’s car. The officer found the bag of marijuana and
Evanson was arrested. Evanson admitted casual marijuana use,
but denied that he ever sold marijuana or used marijuana in front
of his children.
Evanson also testified about his lengthy residence in the
United States. In addition to serving as a reservist in the United
States armed forces, Evanson has been gainfully employed in
the health care field for at least ten years. Also, he has
completed a number of courses towards an undergraduate
degree in computer science from St. Joseph’s University.
Evanson testified that he has three children, ages 15, 5, and 2, all
United States citizens. At the time he was taken into
immigration custody, Evanson lived with the older two children
and their mother and saw the youngest child on a regular basis.
Evanson supported all three children. Following Evanson’s
testimony, the IJ credited Evanson’s account of the incident and
granted his request for cancellation of removal based primarily
on his close relationship with his young United States citizen
children.
2
An alien who has been convicted of an aggravated felony is
not eligible for most discretionary relief. Conversely, an alien
who was convicted of violating a law related to a controlled
substance is removable, but may seek discretionary relief
including cancellation of removal under 8 U.S.C. § 1229b(a).
5
The Government appealed to the BIA. In its decision, the
BIA found that Evanson had been convicted of an offense
“involving possession with intent to deliver or manufacture a
controlled substance, marihuana, in the amount of .4841
pounds.” (App. 6.) The BIA did not discuss how it determined
that Evanson’s offense involved .4841 pounds of marijuana.
“Based on the large quantity of marijuana involved,” the Board
concluded that Evanson’s conviction was punishable as a felony
under the federal Controlled Substances Act, 21 U.S.C. §
841(a), and thus was an aggravated felony. (App. 6.) As a
result, the BIA found that Evanson was not eligible for
cancellation of removal and ordered him removed. Evanson
petitions for review.
II.
We have jurisdiction to determine de novo whether
Evanson’s conviction constituted an aggravated felony, but not
to review the BIA’s exercise of its discretion in granting or
denying cancellation of removal. 8 U.S.C. § 1252(a)(2)(C),
(D).3
Evanson contends that his conviction under Pennsylvania
state law did not constitute an aggravated felony. The
Government argues that Evanson’s controlled substance offense
was an aggravated felony, and that he is therefore ineligible for
discretionary relief from an order of removal. To determine if
Evanson has been convicted of an aggravated felony, we begin
with its definition under the Immigration and Nationality Act
(“INA”). The definition of “aggravated felony” includes, in
relevant part, “illicit trafficking in a controlled substance (as
defined in 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, section 924(c) defines “drug trafficking
crime” as “any felony punishable under the Controlled
Substances Act.” Thus, a state drug conviction constitutes an
aggravated felony if (a) it would be punishable as a felony under
the federal Controlled Substances Act, or (b) it is a felony under
state law and includes an illicit trafficking element.
Accordingly, we apply two independent tests for determining
whether a state drug offense constitutes an aggravated felony:
3
The Government has filed a motion to dismiss based on its
argument that Evanson was convicted of an aggravated felony.
However, we will deny that motion for the reasons that follow.
6
the “illicit trafficking element” route and the “hypothetical
federal felony” route. Garcia v. Att’y Gen., 462 F.3d 287, 291
(3d Cir. 2006) (citing Gerbier v. Holmes, 280 F.3d 297, 313 (3d
Cir. 2002)).
A. Hypothetical Federal Felony
Under the hypothetical federal felony route, we compare
the offense of conviction to the federal Controlled Substances
Act to determine if it is analogous to an offense under that Act.
The federal Controlled Substances Act makes it a felony to
knowingly or intentionally “manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense,”
any amount of marijuana, except that “distributing a small
amount of marihuana for no remuneration” is a misdemeanor.
21 U.S.C. § 841(a), (b)(1)(D), (b)(4). A state marijuana
conviction is therefore only equivalent to a federal drug felony
if the offense involved payment or more than a small amount of
marijuana. See Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.
2001) (“Since distribution of marijuana without remuneration is
not inherently a felony, it seems to us that the only alternative to
so regarding it consistent with the rule of lenity would be to treat
any § 844 offense in this context as a misdemeanor.”); Wilson
v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003).
In Jeune v. Att’y Gen., we considered whether a
conviction under 35 Pa. Stat. Ann. § 780-113(a)(30) was
analogous to a violation of 21 U.S.C. § 841(b)(1)(D). 476 F.3d
199, 204-05 (3d Cir. 2007). We found that distributing a small
amount of marijuana for no remuneration could be prosecuted
under the Pennsylvania statute, and thus that we could not
determine that it was equivalent to a federal drug felony without
more information about the conviction. Id.
We recognize that other courts have disagreed with our
view of 21 U.S.C. § 841. See, e.g., Julce v. Mukasey, 530 F.3d
30, 35 (1st Cir. 2008) (holding that a petitioner bears the burden
of proving that a state marijuana conviction did not involve
remuneration to escape the conclusion that the conviction
amounted to a federal felony); In re Aruna, 24 I. & N. Dec. 452,
458 n.4 (B.I.A. 2008) (declining to apply Steele to cases arising
outside of the Third Circuit). However, the Government makes
no argument that we should alter our conclusion that distribution
of a small amount of marijuana without remuneration is not
inherently a federal felony. Accordingly, we need not revisit
this issue.
7
B. Illicit Trafficking Element
Under the illicit trafficking element test, a state felony
drug conviction constitutes an aggravated felony if it contains a
trafficking element. See, e.g., Gerbier, 280 F.3d at 305-06. “To
contain a trafficking element, a state felony must involve ‘the
unlawful trading or dealing of a controlled substance.’” Jeune,
476 F.3d at 202 (quoting Gerbier, 280 F.3d at 305); see also
Steele, 236 F.3d at 135 (“Essential to the concept of ‘trading or
dealing’ is activity of a business or merchant nature, thus
excluding simple possession or transfer without consideration.”
(internal quotation marks and citation omitted)).
In Garcia, we noted that the Pennsylvania statute “may
encompass conduct that does not involve trading or dealing. In
particular, it is not clear that every violation of the
manufacturing provision involves trading or dealing.” 462 F.3d
at 293 n.9. In Jeune, we clarified that “more than the bare fact
of conviction” under 35 Pa. Stat. Ann. § 780-113(a)(30) is
needed to satisfy the illicit trafficking element test. 476 F.3d at
204 (noting that “[m]anufacturing marijuana for personal use
would arguably not be an aggravated felony”).
Accordingly, under either the hypothetical federal felony
test or the illicit trafficking element test, a conviction under the
Pennsylvania statute is not necessarily an aggravated felony.
Thus, we must determine what records may be consulted to
evaluate a conviction under the Pennsylvania statute.
C. Categorical Approach
To determine whether an offense of conviction amounts
to an aggravated felony, including by means of the hypothetical
federal felony and illicit trafficking element tests, we
presumptively apply a “formal categorical approach.” Singh v.
Ashcroft, 383 F.3d 144, 161 (3d Cir. 2004) (synthesizing our
aggravated felony case law). A formal categorical approach
prohibits us from any review of the factual basis for an
underlying conviction. Id. at 147-48. Thus, to determine what
records we may consult in evaluating Evanson’s Pennsylvania
conviction, we must determine whether the presumption in favor
of the formal categorical approach applies, and if not, how far
we may depart from it. We begin by considering the origin of
the categorical approach.
The Supreme Court set forth the formal categorical
approach in the context of the Armed Career Criminal Act
8
(“ACCA”), 18 U.S.C. § 924(e)(1). Taylor v. United States, 495
U.S. 575 (1990). The ACCA requires an enhanced penalty for
possession of a firearm when the defendant has “three previous
convictions . . . for a violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e). “Violent felony” is defined as an
offense that “(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or (ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B). Taylor had been convicted of violating a state
burglary statute that had a broader definition than the Court
found Congress intended to apply to the term “burglary” as used
in the ACCA. See 495 U.S. at 578-79. Thus, in Taylor, the
Court was confronted with deciding “whether the sentencing
court in applying § 924(e) must look only to the statutory
definitions of the prior offenses,” the formal categorical
approach, “or whether the court may consider other evidence
concerning the defendant’s prior crimes,” the factual approach.
Id. at 600. Noting the language of § 924(e), legislative history
suggesting “a categorical approach to predicate offenses,” and
“the practical difficulties and potential unfairness of a factual
approach,” the Supreme Court concluded that a trial court
should generally “look only to the fact of conviction and the
statutory definition of the prior offense.” Id. at 600-02.
However, the Supreme Court also held that it was
appropriate “to go beyond the mere fact of conviction in a
narrow range of cases where a jury was actually required to find
all the elements of [an ACCA predicate offense].” Id. at 602.
We refer to this second step of the Taylor analysis as the
modified categorical approach.4 In particular, in Taylor the
4
Some confusion has resulted from inconsistent use of the
phrase “modified categorical approach.” See Conteh v.
Gonzales, 461 F.3d 45, 54 (1st Cir. 2006) (describing different
uses of the term). We use the term to mean looking beyond the
statutory definition, but only for the purpose of determining the
elements necessarily found by a jury, or admitted by a defendant
in pleading guilty. Nijhawan v. Att’y Gen., 523 F.3d 387, 393
(3d Cir. 2008) (“The modified categorical approach entails
scrutiny of the nature of the conviction itself and those elements
that the jury necessarily found through an examination of
judicial record evidence. If the jury did not necessarily find that
9
Court held that we may consult the charging document and jury
instructions in addition to the statutory definition to determine
what elements formed the basis for a defendant’s underlying
conviction. Id. at 602.
In Shepard v. United States, 544 U.S. 13, 19-20 (2005),
the Court extended the modified categorical approach to cases
resolved by guilty plea. The Court reiterated that a court
applying § 924(e) must avoid “evidentiary enquiries into the
factual basis for the earlier conviction,” instead focusing on
whether a “plea had ‘necessarily’ rested on” the elements of an
ACCA predicate offense. Id. at 20-21 (quoting Taylor, 495 U.S.
at 602). Thus, the Court held that appropriate records to
consider in evaluating a pleaded case are the “statutory
definition, charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual finding
by the trial judge to which the defendant assented”—the closest
analogs to the materials approved in Taylor. 544 U.S. at 16, 20-
23 (holding that “a police report submitted to a local court as
grounds for issuing a complaint” was not an appropriate
document to consider).
Like the ACCA, 8 U.S.C. § 1227(a)(2)(A)(iii)—the
section of the INA that renders an aggravated felon
removable—refers to “[a]ny alien who is convicted of an
aggravated felony” (emphasis added) rather than to any alien
who “has committed” an aggravated felony. Cf. In re
Velazquez-Herrera, 24 I. & N. Dec. 503, 513 (B.I.A. 2008)
(“For nearly a century, the Federal circuit courts of appeals have
held that where a ground of deportability is premised on the
existence of a ‘conviction’ for a particular type of crime, the
focus of the immigration authorities must be on the crime of
which the alien was convicted, to the exclusion of any other
criminal or morally reprehensible acts he may have
committed.”). Accordingly, we presumptively apply the
“formal categorical approach” in evaluating whether predicate
convictions fall within the definition of “aggravated felony.”
Singh, 383 F.3d at 161; see also id. at 152 (noting that Taylor’s
element, the ‘conviction’ will not fit within the enhanced
category.”). In other words, we use “modified categorical
approach” to refer to the second step of the Taylor analysis
rather than to a broader review of the record of conviction to
determine a petitioner’s underlying conduct.
10
analysis applies in the aggravated felony context “because §
1101(a)(43) [the section enumerating aggravated felonies] is
similar to 18 U.S.C. § 924(e) in that it too enumerates offenses,
conviction of which places an alien in the category of
‘aggravated felon’”); Gonzales v. Duenas-Alvarez, 549 U.S. 183
(2007) (applying the Taylor framework in aggravated felony
context).
As in the ACCA context, our analysis is not always
limited to the formal categorical approach. Confronted with a
disjunctive statute of conviction, one in which there are
alternative elements, we apply the modified categorical
approach set forth in Taylor and Shepard to determine which of
the alternative elements was the actual basis for the underlying
conviction. Singh, 383 F.3d at 162-63; Nijhawan v. Att’y Gen.,
523 F.3d 387, 393 (3d Cir. 2008) (noting that the modified
categorical approach applies to cases involving “divisible”
statutes of conviction).
We depart farther from the formal categorical approach
only where the language of a particular subsection of §
1101(a)(43)—the aggravated felony enumerating statute—
“invites inquiry into ‘the underlying facts of the case.’”
Nijhawan, 523 F.3d at 393 (evaluating underlying facts to
determine whether fraud conviction constituted aggravated
felony). In particular, a categorical approach does not apply to
subsections that include “‘in which’ or other analogous
qualifying language.” Id. at 391. In these cases, our inquiry is
not limited to “facts actually and necessarily found beyond a
reasonable doubt by a jury or judge.” Id. at 391-96 (citations and
internal quotation marks omitted). Accordingly, we may “look[]
to a wider array of records that possess a high indicia of
reliability,” including records not permitted by the modified
categorical approach. Id. at 399.
In Garcia, we determined that 35 Pa. Stat. Ann. § 780-
113(a)(30) is divisible because it describes “three distinct
offenses: manufacture, delivery, and possession with intent to
deliver or manufacture.” 462 F.3d at 293 n.9. Thus, we held
that the formal categorical approach does not limit our
application of the illicit trafficking element test to this statute.
Id. (noting that “it appears that the section may encompass
conduct that does not involve trading or dealing”); see also
11
Jeune, 476 F.3d at 202.5 Accordingly, in Garcia we looked to
the charging instrument to determine that Garcia pled guilty to
selling marijuana to an undercover police officer. 462 F.3d at
293. Thus, we found that Garcia had been convicted of an illicit
trafficking offense and was an aggravated felon. Id.
In Garcia, we concluded that we should not go beyond
the modified categorical approach, as we did in Nijhawan,
because we were not directed to do so by the aggravated felony
enumerating statute. See Garcia, 462 F.3d at 292; Singh, 383
F.3d at 161 (“[T]he hypothetical federal felony trilogy (Steele,
Gerber, and Wilson) asks only whether the elements of a federal
criminal statute can be satisfied by reference to the actual statute
of conviction; this presents no invitation to depart from Taylor’s
formal categorical approach and examine the underlying
facts.”). Thus, we may only look beyond the statutory definition
to the extent permitted by the modified categorical approach and
Taylor-Shepard. Cf. Singh, 383 F.3d at 163 (noting that in cases
involving disjunctive statutes of conviction “we have not taken
the further step of looking to facts outside the charging
instrument or further plea”). We may not open our review to
other records or inquire into the factual basis for the underlying
conviction as we did in Nijhawan. Therefore, the BIA’s inquiry
should have been limited to the materials described in Taylor-
Shepard.
Indeed, the Government seems to concede that the
modified categorical approach and the Taylor-Shepard
framework govern this case. Nonetheless, the Government
argues that the criminal information, including charges in counts
of which Evanson was not convicted, and the judgment of
sentence are appropriate records to consider under the modified
5
In Jeune, we applied Garcia and looked beyond the statutory
definition in applying the hypothetical federal felony test to 35
Pa. Stat. Ann. § 780-113(a)(30). Jeune, 476 F.3d at 205. It is
not clear that the Pennsylvania statute is disjunctive in a sense
that is relevant to the inquiry under the hypothetical federal
felony test. See Singh, 383 F.3d at 163 (holding that review was
limited to formal categorical approach where the statute of
conviction was not disjunctive in a meaningful way). What is
clear is that there is no basis in our precedent for looking beyond
the modified categorical approach in applying the hypothetical
federal felony test.
12
categorical approach.6 The Government is correct that the
criminal information, as the relevant charging document, is an
appropriate record to consider. However, a court applying the
modified categorical approach may only consider the charging
document to the extent that the petitioner was actually convicted
of the charges.7 Cf. Steele v. Blackman, 236 F.3d 130, 136-37
(3d Cir. 2001) (holding that to find that an alien was convicted
of an aggravated felony “there must be a judicial determination
beyond a reasonable doubt of every element of a felony or a
constitutionally valid plea that encompasses each of those
elements”); see also Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir.
2006) (declining to consider the total loss amount stated in a
multi-count indictment where Alaka pled guilty to only a single
count with a lower loss amount). Accordingly, we may consider
only the possession with intent to distribute and conspiracy to
possess with intent to distribute counts.
Further, we may not look to factual assertions in the
judgment of sentence. Facts a judge considers in making a
discretionary sentencing determination are not necessarily
admitted by the defendant.8 Cf., Commonwealth v. Lane, 941
6
In this case, the potential sources of information about
Evanson’s conviction are (1) the criminal complaint and its
incorporated “affidavit of probable cause”; (2) the counts of the
criminal information to which Evanson pled guilty; (3) other
counts in the criminal information; (4) the judgment of sentence;
and (5) Evanson’s testimony before the I.J. The Government
does not argue that we may consider Evanson’s testimony before
the I.J.
7
The Government also seems to urge the Court to consider
the allegations in the affidavit of probable cause attached to the
criminal complaint. However, because the criminal complaint
was superceded by the criminal information in this case, it is not
the relevant charging document and is not an appropriate source
under the modified categorical approach.
8
The judgment of sentence also was not an appropriate basis
for determining the amount of marijuana involved in Evanson’s
offense for a related reason. 8 U.S.C. § 1229a(c)(3)(A) requires
that the Government prove removability by clear and convincing
evidence. The amount recited in the judgment of sentence was
not itself necessarily based on clear and convincing evidence.
13
A.2d 34, 38 (Pa. Super. Ct. 2008). Accordingly, factual
assertions contained only in a judgment of sentence may not be
considered under the modified categorical approach. See In re
Velazquez-Herrera, 24 I. & N. Dec. at 516-17 (holding that
factual notations on Washington judgment of sentence did not
“constitute proof of defendant’s ‘convicted conduct’”); see also
United States v. Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir.
2005) (holding that “district court erred in relying exclusively on
the abstract of judgment to determine whether the conviction
under [California law] was a ‘drug trafficking offense,’” but that
abstract of judgment might be permissible in combination with
charging document); United States v. Navidad-Marcos, 367 F.3d
903, 909 (9th Cir. 2004) (holding that California abstract of
judgment may not be used as only source of information under
modified categorical approach because, among other things, the
abstract of judgment “does not contain information as to the
criminal acts to which the defendant unequivocally admitted in
a plea colloquy before the court”).
In this case, the only parts of the current record
appropriately before the BIA were the statutory definition and
those counts of the criminal information to which Evanson pled
guilty. Thus, the only information—beyond the statutory
definition—properly in the record is that Evanson’s
Pennsylvania offense involved marijuana. The BIA erred in
considering the amount of marijuana involved in Evanson’s
offense, information contained only in the judgment of sentence
and his testimony before the IJ. Our holding in Jeune that a
marijuana conviction under 35 Pa. Stat. Ann. § 780-
113(a)(30)—without proof of the amount involved or
remuneration—is analogous to a federal misdemeanor therefore
controls the outcome of the hypothetical federal felony test in
this case. For this reason, we hold that the BIA also erred in its
ultimate conclusion that Evanson’s Pennsylvania conviction was
a hypothetical federal felony and thus constituted an aggravated
felony.
III.
We will grant the petition and remand to the BIA to
consider in the first instance whether Evanson’s offense
constituted an aggravated felony under the illicit trafficking
14
element test in light of Garcia and Jeune.9
9
Although we conclude that the BIA erred in considering
more than the statutory definition and the charging document,
and this conclusion—in addition to our holding in Jeune—also
suggests that the Government cannot meet its burden under the
illicit trafficking element test, we remand because the BIA did
not consider this issue in its previous ruling.
15