Banda-Montoya v. Holder , 446 F. App'x 920 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 12 2011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 BANDA-MONTOYA, No. 07-74794
Petitioner, Agency No. A028-709-910
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
ROBERTO BANDA-MONTOYA, No. 08-72458
Petitioner, Agency No. A028-709-910
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 10, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**
Petitioner Roberto Banda-Montoya seeks review of a final order of removal
by the Board of Immigration Appeals (BIA) which concluded that his convictions
under Arizona Revised Statutes §§ 13-3407 and 13-1003 rendered him
categorically removable and ineligible for cancellation of removal. Because the
parties are familiar with the factual and procedural history of this case, we do not
recount additional facts except as necessary to explain our decision. Because we
lack jurisdiction over the appeal, we dismiss the petition and do not address Banda-
Montoya’s remaining assignments of error.
If an alien is removable because of a conviction for an aggravated felony, we
lack jurisdiction to review the final order of removal. 8 U.S.C. § 1252(a)(2)(C).
For purposes of the Immigration and Nationality Act (INA), “aggravated felony”
includes, inter alia, “illicit trafficking in a controlled substance . . . , including a
drug trafficking crime (as defined in section 924(c) of Title 18),” 8 U.S.C. §
1101(a)(43)(B), and “an attempt or conspiracy to commit an offense described in
this paragraph,” id. § 1101(a)(43)(U).
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
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Because Arizona Revised Statutes § 13-3407(A) is a divisible statute, we
must apply the modified categorical approach to determine whether Banda-
Montoya was necessarily convicted of the elements of the generic crime. See
Rendon v. Mukasey, 520 F.3d 967, 974–75 (9th Cir. 2008). In so doing, we may
consider, among other documents, the state court’s minute order, United States v.
Snellenberger, 548 F.3d 699, 701–02 (9th Cir. 2008) (en banc) (per curiam), and
the charging documents, Rendon, 520 F.3d at 975. The minute order states that
Banda-Montoya pleaded guilty to “Conspiracy to Possess Dangerous Drugs for
Sale.” The indictment states that his conduct involved “Methamphetamine, a
dangerous drug.”
“[A] state drug crime is an aggravated felony ‘if it contains a trafficking
element,’” or “if it would be punishable as a felony under the federal drug laws.”
Rendon, 520 F.3d at 974 (citations omitted). Banda-Montoya’s conviction under
§ 13-3407 constitutes an aggravated felony because he pleaded guilty to a state
drug crime that contained a trafficking element. See Rendon, 520 F.3d at 976(“[P]ossession of a controlled substance with the intent to sell contains a
trafficking element and is an aggravated felony”). The conviction also constitutes
an aggravated felony because the state crime would be punishable as a felony
under the federal drug laws. See 21 U.S.C. § 841(a)(1) (“it shall be unlawful for
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any person knowingly or intentionally . . . to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled
substance”); 21 U.S.C. § 812, Scheds. II(c), III(a)(3) (listing methamphetamine as
a controlled substance).
Because Banda-Montoya pleaded guilty to conspiracy to commit the
underlying crime, we must also compare the state-law crime of conspiracy with the
federal definition. See Rebilas v. Mukasey, 527 F.3d 783, 785 (9th Cir. 2008).
Arizona Revised Statutes § 13-1003 has the following elements: “(1) an intent to
promote or aid the commission of an offense, (2) an agreement with one or more
persons that one of them or another person will engage in conduct constituting the
offense, and (3) an overt act committed in furtherance of the offense.” State v.
Newman, 688 P.2d 180, 185 (Ariz. 1984). The federal definition contains the
following elements: “an agreement to accomplish an illegal objective coupled with
one or more overt acts in furtherance of the illegal purpose and the requisite intent
necessary to commit the underlying substantive offense.” United States v.
Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980) (citation and internal quotation
marks omitted). Because the statute of conviction contains the same elements as
the federal definition, Banda-Montoya’s conviction constitutes conspiracy for
purposes of the INA.
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PETITION DISMISSED.
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