Alexis Martinez v. Attorney General United States , 906 F.3d 281 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-3434
_______________
ALEXIS LEOPOLD MARTINEZ,
Petitioner
v.
ATTORNEY GENERAL, UNITED STATES OF
AMERICA,
Respondent
_______________
On Petition for Review of a Decision of the
United States Department of Justice
Board of Immigration Appeals
(BIA-1: A043-623-955)
Immigration Judge: Amit Chugh
_______________
Argued September 6, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges
(Filed: October 16, 2018)
_______________
Whitney W. Elliott, Esq.
Legal Aid Society
Immigration Law Unit
199 Water Street
New York, NY 10038
Melika Hadziomerovic, Esq.
George W. Kroup, Esq. [ARGUED]
William B. Michael, Esq.
Paul Weiss Rifkind Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
Counsel for Petitioner
Matthew B. George, Esq. [ARGUED]
Jane T. Schaffner, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
We must decide whether New Jersey’s drug-trafficking law
criminalizes more conduct than the federal one. Under the cat-
egorical approach, a state-law conviction makes an alien re-
2
movable if its elements are no broader than those of a qualify-
ing federal crime. Moncrieffe v. Holder, 569 U.S. 184, 190-91
(2013). Alexis Martinez contends that he is not removable be-
cause the New Jersey drug-trafficking law of which he was
convicted is broader than its federal counterpart. First, he ar-
gues that although both laws extend to attempts, New Jersey’s
attempt law is broader because it sweeps in mere preparation
and solicitation. But both laws track the Model Penal Code,
treating some preparation and solicitations as attempts if they
are substantial steps toward a crime. So the laws are coexten-
sive.
Second, Martinez argues that New Jersey’s list of drugs in-
cludes a substance not found on the current federal list. But we
look to the lists on the date of his conviction. On that date, the
New Jersey list was no broader than the federal list. So Mar-
tinez was convicted of a controlled-substance offense, making
him removable. That crime was also an aggravated felony,
making him ineligible for cancellation of removal.
I. BACKGROUND
Martinez is a citizen of the Dominican Republic and a law-
ful permanent resident of the United States. In 2005, he and his
confederates sold one kilogram of cocaine to an undercover
detective and a cooperating witness. He was charged with four
crimes under New Jersey law: possessing cocaine, N.J. Stat.
Ann. § 2C:35-10(a)(1); possessing cocaine with intent to dis-
tribute, id. § 2C:35-5(a)(1), (b)(1); distributing cocaine, id.; and
conspiring to possess cocaine with intent to distribute, id.
§ 2C:5-2. For the latter three counts, the court instructed the
jury that it could convict Martinez for attempting to transfer
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cocaine or to aid another in distributing cocaine. The jury con-
victed on all four counts, and the judge sentenced Martinez to
twenty years’ imprisonment.
In 2010, the Department of Homeland Security charged
Martinez as removable on two grounds: First, the government
claimed that Martinez’s drug-distribution convictions under
N.J. Stat. Ann. § 2C:35-5(a)(1) & (b)(1) match the federal Con-
trolled Substances Act’s ban on drug trafficking, 21 U.S.C.
§ 841(a)(1). If that is true, then Martinez was convicted of an
aggravated felony, making him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43)(B). Second,
the government claimed that Martinez’s convictions relate to
federally controlled substances. See 21 U.S.C. § 802(6). If that
is true, then Martinez was convicted of a controlled-substance
offense, making him removable under 8 U.S.C.
§ 1227(a)(2)(B)(i).
The immigration judge sustained the charges. Martinez ap-
pealed, raising the arguments outlined above. The Board of Im-
migration Appeals rejected both arguments on the merits, and
Martinez petitions for review.
Because Martinez raises questions of law, we have jurisdic-
tion to review the Board’s final order. 8 U.S.C. § 1252(a). We
review de novo. Singh v. Att’y Gen., 839 F.3d 273, 282 (3d Cir.
2016).
II. NEW JERSEY’S ATTEMPT LAW IS NO BROADER THAN
FEDERAL LAW
Martinez argues that he was not convicted of an aggravated
felony. Under the categorical approach, “[w]e look ‘not to the
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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 aggra-
vated felony.’ ” Id. at 278 (quoting Moncrieffe, 569 U.S. at
190). We “presume that the conviction rested upon nothing
more than the least of the acts criminalized, and then determine
whether” the generic federal offense encompasses “even those
acts.” Id.
Here, Martinez’s drug-distribution convictions could have
rested on a mere attempt. And Martinez does not dispute that
the New Jersey and federal drug-distribution laws are materi-
ally identical in most respects. Compare 21 U.S.C. § 841(a)(1)
with N.J. Stat. Ann. § 2C:35-5(a)(1). But he contends that they
treat attempt differently.
A. Both New Jersey and federal attempt law follow the
Model Penal Code
So Martinez must show that New Jersey’s attempt law is
broader than federal attempt law. He cannot. Both jurisdictions
follow the Model Penal Code’s approach to attempts.
The Model Penal Code defines an “attempt” as a purposeful
act or omission that “constitut[es] a substantial step in a course
of conduct planned to culminate in [the] commission of the
crime.” Model Penal Code § 5.01(1)(c). It defines a “substan-
tial step” as an act that is “strongly corroborative of the actor’s
criminal purpose.” Id. § 5.01(2). It also lists seven actions that
may satisfy that requirement. Id. That list includes solicitation.
Id.
5
Federal attempt law follows that framework. Most federal
courts follow the Model Penal Code’s doctrine of attempt lia-
bility. See United States v. Dworken, 855 F.2d 12, 16 (1st Cir.
1988) (collecting cases from seven circuits); Ming Lam Sui v.
INS, 250 F.3d 105, 116 (2d Cir. 2001) (using the Model Penal
Code’s definition of attempt under the Immigration and Na-
tionality Act). Our circuit likewise applies the Model Penal
Code’s approach to the Controlled Substances Act. United
States v. Glass, ___ F.3d ___, No. 16-2906, 2018 WL 4443889,
at *3 n.3 (3d Cir. Aug. 22, 2018). So we too require a “substan-
tial step toward commission of the crime” that “strongly cor-
roborat[es] the firmness of a defendant’s criminal purpose.”
United States v. Cicco, 10 F.3d 980, 985 (3d Cir. 1993).
New Jersey has adopted that definition almost verbatim by
statute. It defines attempt as a purposeful “act or omission con-
stituting a substantial step in a course of conduct planned to
culminate in [the] commission of the crime.” N.J. Stat. Ann.
§ 2C:5-1(a)(3). And a “substantial step” must be “strongly cor-
roborative of the actor’s criminal purpose.” Id. § 2C:5-1(b). It
does not include the Model Penal Code’s list of seven exam-
ples that can qualify as substantial steps, including solicitation.
But the lack of a list of illustrations makes no difference. See
State v. Sunzar, 751 A.2d 627, 632 (N.J. Super. 1999) (stating
that the omission of the Model Penal Code’s list of examples
does not prevent solicitation from amounting to attempt).
There is no daylight between the federal and New Jersey for-
mulations.
Martinez offers two responses. Neither is convincing.
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B. New Jersey law does not reach more preparation
than federal law
Martinez first responds that New Jersey law treats more
forms of inchoate preparation for a crime as attempt than fed-
eral law does. In support, he cites State v. Fornino, 539 A.2d
301 (N.J. App. Div. 1988). In dicta, Fornino stated: “It is only
‘very remote preparatory acts’ which are excluded from the
ambit of attempt liability.” Id. at 306 (quoting 2 New Jersey
Penal Code Commentary 118 (1971)). But that was a case
about plain error. The defendant argued that the trial court
should have instructed the jury that “preparation is insufficient
. . . for an attempt.” Id. The defendant had not objected, how-
ever. So the court found only that the failure to give the instruc-
tion was not plain error. Id. It did not have occasion to affirm-
atively define attempt liability. Fornino simply noted that
“some preparation may amount to an attempt. It is a question
of degree.” Id. (quoting State v. Mandujano, 499 F.2d 370, 377
(5th Cir. 1974)). So New Jersey courts wrestle with drawing
that line, just as federal courts and the Model Penal Code do.
If Fornino left any doubt, the New Jersey Supreme Court
has since resolved it. In State v. Farrad, the court stated that
New Jersey law “distinguish[es] between mere preparation and
the substantial step requirement of an attempt.” 753 A.2d 648,
653 (N.J. 2000). Farrad held there was enough evidence of at-
tempted robbery when the defendant surveilled a restaurant,
covered his face, and walked up to the cashier with a loaded
gun. Id. at 659. That evidence “demonstrated a purpose to rob
and substantial steps that were taken toward completion of the
intended robbery.” Id. This reasoning tracks that of the Model
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Penal Code and federal law. So the most recent explanation by
New Jersey’s highest court mirrors federal law: a substantial
step is required.
C. Both New Jersey and federal law treat some solicita-
tions as attempts
Martinez’s second, stronger response is that New Jersey at-
tempt law extends beyond federal law because New Jersey
considers solicitation to be attempt. But solicitation does not
amount to an attempt unless it is “strongly corroborative of the
actor’s criminal purpose.” State v. Sunzar, 751 A.2d 627, 632
(N.J. Super. Ct. Law Div. 1999). “[M]ere solicitation, even
when unaccompanied by any other act in furtherance, can con-
stitute an attempt.” Id. (emphasis added). So not all solicita-
tions qualify. The strongly-corroborative requirement “pro-
tects against criminal liability for idle requests that are not
meant to be taken seriously.” Id. (citing Fornino, 539 A.2d at
541).
New Jersey’s approach, like that of federal law, follows the
Model Penal Code. Both federal law and the Model Penal Code
recognize that “solicitation accompanied by the requisite intent
may constitute an attempt.” United States v. Am. Airlines, Inc.,
743 F.2d 1114, 1121 (5th Cir. 1984); see, e.g., United States v.
Cornelio-Pena, 435 F.3d 1279, 1286-87 (10th Cir. 2006);
Model Penal Code § 5.01(2)(g). Our Court agrees. Glass, ___
F.3d ___, 2018 WL 4443889, at *3 n.3. So New Jersey law
tracks federal law: Solicitation may amount to an attempt when
it strongly corroborates the actor’s criminal purpose. Not all
solicitations make the cut, but some do.
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In reply, Martinez cites several cases, but they are either
inapposite or unpersuasive. Two of them dealt with state laws
that differed materially from New Jersey’s. To start, Coro-
nado-Durazo v. INS involved a conviction for solicitation to
possess a narcotic. 123 F.3d 1322, 1323 (9th Cir. 1997). Under
Arizona law, that crime was separate from attempt and had its
own distinct requirements for physical acts and mental state.
Id. at 1324-26. It was not a subset of attempt liability.
Similarly, United States v. Ibarra-Luna involved a Texas
law encompassing a “mere offer to sell, without evidence of
possession or transfer.” 628 F.3d 712, 715-16 (5th Cir. 2010).
A mere offer to sell, without even possession of drugs, argua-
bly does not strongly corroborate the actor’s criminal purpose.
And the government even conceded that the law did not cate-
gorically match the federal Controlled Substances Act. Id. at
716. Those cases are a far cry from Martinez’s conviction for
“possess[ing] . . . with intent to manufacture, distribute, or dis-
pense, a controlled dangerous substance.” N.J. Stat. Ann.
§ 2C:35-5(a)(1).
Another of Martinez’s cases, United States v. Dolt, is inap-
posite as well as unpersuasive. 27 F.3d 235 (6th Cir. 1994). It
is inapposite because it rested in part on a Florida state-court
ruling “that solicitation and attempt are separate and distinct
crimes.” Id. at 239. It is unpersuasive because it concluded that,
unlike attempt, “solicitation does not require an overt act on
the part of the defendant.” Id. But as explained above, federal
attempt law follows the Model Penal Code in requiring only a
substantial step, which may include solicitation. Attempt re-
quires no overt act by the defendant himself.
9
Martinez’s strongest authority is Sandoval v. Sessions, but
it is also unpersuasive. 866 F.3d 986 (9th Cir. 2017). There,
the Ninth Circuit confronted an Oregon drug-delivery statute
that resembles New Jersey’s drug-trafficking law. Compare
id. at 990-91, with N.J. Stat. Ann. § 2C:35-5(a)(1). Like New
Jersey, Oregon required a “substantial step” that is “strongly
corroborative of the actor’s criminal purpose.” Sandoval, 866
F.3d at 991 (quoting State v. Pollock, 73 P.3d 297, 300 (Or.
App. 2003), aff’d on other grounds, 102 P.3d 684 (Or.
2004)). And, like New Jersey, Oregon allowed solicitation to
amount to attempt. Id. at 990. Yet the Ninth Circuit held that
the Oregon law was broader than federal law. “Although [it
may be] strongly corroborative of intent to commit a crime,”
the court reasoned, “offering to deliver a controlled substance
does not cross the line between preparation and attempt for
the purposes of the [federal] Controlled Substances Act.” Id.
We disagree. As explained above, federal attempt law is ex-
plicitly based on the Model Penal Code. Both provide that any
substantial step that strongly corroborates the actor’s criminal
purpose amounts to an attempt. Model Penal Code § 5.01(2).
The Model Penal Code specifies that solicitation “shall not be
held insufficient as a matter of law” if it is strongly corrobora-
tive, as we and other circuits recognize. Id. § 5.01(2)(g); see,
e.g., Glass, ___ F.3d ___, 2018 WL 4443889, at *3 n.3; Am.
Airlines, 743 F.2d at 1121.
We see no reason to reject the Model Penal Code. Our prec-
edent embraces it. Solicitation, like any number of other acts,
can amount to a federal attempt. So New Jersey attempt law is
10
no broader than federal law. Martinez’s conviction is thus an
aggravated felony, making him removable.
III. WHEN COMPARING DRUG SCHEDULES, WE LOOK TO
THE DATE OF CONVICTION
Martinez also argues that he was not convicted of a con-
trolled-substance offense. He concedes that the statute is di-
visible and that he was convicted of violating N.J. Stat. Ann.
§ 2C:35-5(b)(1). See Mathis v. United States, 136 S. Ct. 2243,
2248-49 (2016). But he claims that his conviction does not nec-
essarily “relat[e] to a [federally] controlled substance” because
the New Jersey list of controlled substances is currently
broader than the federal lists. 8 U.S.C. § 1227(a)(2)(B)(i).
To be sure, the New Jersey statute criminalizes any deriva-
tive of coca leaves. N.J. Stat. Ann. § 2C:35-5(b)(1). And fed-
eral law currently exempts [123I]ioflupane, a derivative of coca
leaves, from the lists. 21 C.F.R. § 1308.12(b)(4). But that ex-
emption was not in place when Martinez was convicted. See 21
C.F.R. § 1308.12(b)(4) (2008) (effective Dec. 10, 2007 to Aug.
29, 2009). So Martinez’s argument depends on the premise that
the present lists control, not the lists in effect when he was con-
victed.
But the categorical approach directs us to compare the
schedules at the time of conviction. In Mellouli v. Lynch, the
Court held that the petitioner’s state-law conviction did not
make him removable because, “at the time of [his] conviction,
[the state] schedules included at least nine substances not in-
cluded in the federal lists.” 135 S. Ct. 1980, 1984 (2015) (em-
11
phasis added); accord id. at 1988. That is the reverse of Mar-
tinez’s situation. But Mellouli’s logic applies equally here, at
least where the federal drug schedules narrow after conviction.
See Doe v. Sessions, 886 F.3d 203, 208-09 (2d Cir. 2018)
(holding that the federal drug schedule “in effect at the time of
conviction” governs).
As a final point, under Chenery, we may not uphold the
Board of Immigration Appeals’ decision on this basis unless
the Board articulated it. Orabi v. Att’y Gen., 738 F.3d 535, 539
(3d Cir. 2014) (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)). Here, the Board’s reasoning is terse and hard to follow
on this point. Yet the Board did cite Mellouli, the key case that
specifies the date of conviction as controlling. While this rea-
soning is barely sufficient, its citation signals that the Board
looked to the date of conviction, following Mellouli’s instruc-
tion.
*****
New Jersey attempt law is coextensive with federal law.
Both require a substantial step that strongly corroborates the
actor’s criminal purpose; both hold that solicitation can count
as a substantial step. And we look to the date of Martinez’s
conviction, when the federal and New Jersey lists of controlled
substances were identical. So Martinez was convicted of a
controlled-substance offense that is an aggravated felony as
well. He is thus removable and ineligible for cancellation of
removal. We will deny his petition for review.
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