Roberto Garcia v. Eric H. Holder Jr. , 418 F. App'x 669 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERTO JESUS GARCIA, No. 08-72351
Petitioner, BIA No. A092-451-179
v.
MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Withdrawn November 12, 2009
Argued August 10, 2010
Resubmitted March 7, 2011
San Francisco, California
Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.
Roberto Jesus Garcia, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order affirming the decision of the
immigration judge (“IJ”) finding him removable as an alien convicted of an
aggravated felony. We have jurisdiction under 8 U.S.C. § 1252. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
novo whether Garcia has been convicted of a removable offense. See Sandoval-
Lua v. Gonzales, 499 F.3d 1121, 1126-27 (9th Cir. 2007).
The BIA found that Garcia had been convicted of possession of
methamphetamine with intent to sell, in violation of section 11378 of the
California Health and Safety Code. This finding relied on two documents, a
charging Information and an abstract of judgment. The Information alleged that
Garcia “did unlawfully possess for purposes of sale a controlled substance, to wit,
methamphetamine,” in violation of California Health & Safety Code section
11378. The abstract states that Garcia pled guilty to “Possession for sale of a
controlled substance-to wit, Methamphetamine.”
A violation of section 11378 is not categorically an aggravated felony
because “California law regulates the possession and sale of many substances that
are not regulated by the [Controlled Substances Act].” Cheuk Fung S-Yong v.
Holder, 600 F.3d 1028, 1034 (9th Cir. 2010). As a result, the BIA had to apply the
modified categorical approach and “look beyond the language of the statute to a
narrow, specified set of documents that are part of the record of conviction” to
determine whether Garcia had been convicted of a removable offense. Tokatly v.
Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004). On the basis of the charging
Information and abstract of judgment, the BIA concluded that Garcia had been
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convicted of possession of methamphetamine, an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(B); 21 U.S.C. § 812(c), sched. III(a)(3). Accordingly, the BIA
ordered Garcia removed. 8 U.S.C. § 1227(a)(2)(A)(iii).
Petitioner argues that abstracts of judgment are unreliable and do not fall
into the “narrow, specified set of documents” that are reliable enough to be used in
the modified categorical approach, Tokatly, 371 F.3d at 620, and thus the
documents in the record do not support a finding that he was convicted of an
aggravated felony. Petitioner further argues that the en banc decision in United
States v. Snellenberger, 548 F.3d 699 (9th Cir. 2008) (en banc), cert. denied, 130
S. Ct. 1048 (2010), did not overrule prior decisions holding that abstracts of
judgment cannot be used in the modified categorical approach.
It is true that, prior to Snellenberger, an abstract of judgment alone was not
considered sufficiently reliable to prove a prior conviction for an aggravated
felony. See Sandoval-Lua, 499 F.3d at 1130 n.8; United States v. Narvaez-Gomez,
489 F.3d 970, 977 (9th Cir. 2007); United States v. Navidad-Marcos, 367 F.3d
903, 908 (9th Cir. 2004). This rule, however, did not survive Snellenberger, which
held that a California minute order was sufficiently reliable to prove an aggravated
felony conviction. See United States v. Strickland, 601 F.3d 963, 968–71 (9th Cir.)
(en banc) (relying on Snellenberger to hold that docket sheet alone was sufficient
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to prove prior conviction where it specified conduct that constitutes a predicate sex
offense under 18 U.S.C. § 2252A(b)), cert. denied, 131 S. Ct. 505 (2010). Minute
orders and abstracts of judgment are quite similar. See Snellenberger, 548 F.3d at701–02 (describing minute orders); People v. Delgado, 183 P.3d 1226, 1234 (Cal.
2008) (describing abstracts of judgment).
Furthermore, this court held even before Snellenberger that an abstract of
judgment can be used in conjunction with a charging document to prove a prior
conviction for an aggravated felony, provided that the documents together specify
conduct that constitutes an aggravated felony. See United States v. Velasco-
Medina, 305 F.3d 839, 852–53 (9th Cir. 2002). Both Garcia’s abstract of judgment
and his charging Information specify that he was convicted of possessing
methamphetamine with intent to sell, an aggravated felony. See 8 U.S.C. §
1101(a)(43)(B); 21 U.S.C. § 812(c), sched. III(a)(3). Petitioner is removable on
that ground.
Petitioner also argues that his plea agreement, which indicates that he pled
no contest to California Health and Safety Code section 11378 but does not state
what controlled substance he possessed, casts doubt on his abstract of judgment.
This argument was not raised before the BIA and thus this panel does not have
jurisdiction to hear it. See 8 U.S.C. § 1252(d)(1); see also Zara v. Ashcroft, 383
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F.3d 927, 930 (9th Cir. 2004); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).
The petition is DENIED.
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