Guerrero-Silva v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN GUERRERO-SILVA, 

Petitioner, No. 05-77420

v.

 Agency No.

A090-098-228

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 12, 2010*

San Francisco, California

Filed March 31, 2010

Before: Procter Hug, Jr. and Jay S. Bybee, Circuit Judges,

and James S. Gwin,** District Judge.

Opinion by Judge Bybee

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation.

5059

GUERRERO-SILVA v. HOLDER 5061

COUNSEL

Michael K. Mehr, Law Office of Michael K. Mehr, Santa

Cruz, California, for the petitioner.

Peter D. Keisler, M. Jocelyn Lopez Wright & Lindsay L.

Chichester, United States Department of Justice, Civil Divi-

sion, Washington, D.C., for the respondent.

OPINION

BYBEE, Circuit Judge:

Again, we face the question of whether a state conviction

qualifies as a removable offense under federal immigration

law. Adrian Guerrero-Silva argues that his conviction under

California Health and Safety Code § 11361(b) does not qual-

ify as a controlled substance offense under 8 U.S.C.

§ 1227(a)(2)(B)(i). We conclude that Guerrero-Silva is

removable and, because Guerrero-Silva does not raise any

other constitutional questions or questions of law, we dismiss

his petition. 8 U.S.C. § 1252(a)(2)(D); see Luu-Le v. INS, 224

F.3d 911, 914 (9th Cir. 2000).

I

Guerrero-Silva, a citizen of Mexico, entered the United

States at age two. He later adjusted his status in the United

States to that of a lawful permanent resident. In 2002,

Guerrero-Silva was convicted in California Superior Court of

“furnish[ing], administer[ing], or giv[ing], or offer[ing] to fur-

nish, administer, or give,” marijuana to a minor older than

fourteen. CAL. HEALTH & SAFETY CODE § 11361(b).

5062 GUERRERO-SILVA v. HOLDER

In 2005, the Department of Homeland Security commenced

removal proceedings against Guerrero by issuing a Notice to

Appear. [AR 346.] The Notice told Guerrero that he was

“subject to removal from the United States pursuant to . . .

Section 237(a)(2)(B)(i) of the Immigration and Nationality

Act.” [AR 357;] see 8 U.S.C. § 1227(a)(2)(B)(i). After a hear-

ing, the Immigration Judge held that Guerrero was removable

and denied Guerrero’s application for cancellation of removal.

The Board of Immigration Appeals affirmed, and Guerrero

timely appealed.

II

[1] Under the categorical approach outlined in Taylor v.

United States, 495 U.S. 575, 588-89 (1990), we compare the

state statute of conviction, California Health and Safety Code

§ 11361(b), with the federal predicate offense, 8 U.S.C.

§ 1227(a)(2)(B)(i), to determine whether the state statute

criminalizes only conduct that falls within the federal offense.

We conclude that the state statute at issue here fits categori-

cally within the federal offense.

[2] California Health and Safety Code § 11361(b) pro-

vides:

Every person 18 years of age or over who furnishes,

administers, or gives, or offers to furnish, administer,

or give, any marijuana to a minor 14 years of age or

older shall be punished by imprisonment in the state

prison for a period of three, four, or five years.

Section 1227(a)(2)(B)(i) makes removable

[a]ny 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

GUERRERO-SILVA v. HOLDER 5063

Title 21), other than a single offense involving pos-

session for one’s own use of 30 grams or less of

marijuana . . . .

8 U.S.C. § 1227(a)(2)(B)(i). Because federal law lists mari-

juana as a controlled substance, 21 U.S.C. §§ 802(6),

812(b)(1)(C), California Health and Safety Code § 11361(b)

criminalizes only conduct that “relat[es] to a controlled sub-

stance,” Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir.

2009). We recognize that 8 U.S.C. § 1227(a)(2)(B)(i) pro-

vides an exception to removability for a “single offense

involving possession for one’s own use of 30 grams or less of

marijuana.” That provision does not apply here, however,

because the actions California Health and Safety Code

§ 11361(b) prohibits—“furnish[ing], administer[ing], or giv-

[ing], or offer[ing] to furnish, administer, or give”—are

actions that, by definition, do not include “possession for

one’s own use.” See WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 923 (1993) (defining furnish to mean “to provide

or supply”); id. at 27 (defining “administer” to mean “to give

or furnish a real or assumed benefit”); id. at 959 (defining

“give” to mean “to confer the ownership of without receiving

a return”).

Guerrero-Silva offers one argument in response. He says

that California Health and Safety Code § 11361(b) includes

solicitation offenses because it prohibits “offers” to “furnish,

administer, or give” marijuana. From this, he argues that he

is not removable because some of our cases have held that

some solicitation offenses are not removable offenses under

the statute. See Coronado-Durazo v. INS, 123 F.3d 1322 (9th

Cir. 1997), and United States v. Rivera-Sanchez, 247 F.3d 905

(9th Cir. 2001) (en banc), superseded on other grounds by

U.S.S.G. § 2L1.2 cmt. n.4 (2002). In accordance with recent

precedent, we accept Guerrero-Silva’s premise but not his

conclusion.

In Coronado-Durazo, we held that solicitation under Ari-

zona Revised Statute § 13-1002 does not constitute a remov-

5064 GUERRERO-SILVA v. HOLDER

able offense within the meaning of 8 U.S.C.

§ 1227(a)(2)(B)(i). 123 F.3d at 1323. We explained: “aliens

who have been convicted of violating laws specifically aimed

at the regulation . . . of controlled substances are deportable,

as are aliens who have been convicted of conspiracy or

attempt to violate such laws.” Id. Arizona’s statute, we held,

did not fit that structure because it “specifie[d] a general

offense applicable to a range of underlying offenses including

but not limited to controlled substance violations.” Id. at

1325. In Rivera-Sanchez, we addressed a different removable

offense: an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B);

247 F.3d at 909. We held that “solicitation offenses are [not]

aggravated felonies.” Rivera-Sanchez, 247 F.3d at 909.

Guerrero-Silva’s reliance on these cases is foreclosed by

our decision in Mielewczyk. In that case, we held that a con-

viction under California Health and Safety Code § 11352(a)

qualified as a removable offense under 8 U.S.C.

§ 1227(a)(2)(B)(i) “[b]ecause the statute of conviction by its

own terms is a state law ‘relating to a controlled substance’

. . . .” 575 F.3d at 993. We distinguished Coronado-Durazo

based on the fact that Coronado-Durazo involved a generic

solicitation statute, whereas California Health and Safety

Code § 11352(a) is specifically aimed at controlled substance

offenses. See id. at 996. We held that Rivera-Sanchez did not

apply because it involved aggravated felonies under 8 U.S.C.

§ 1101(a)(43)(B), not controlled substance offenses under 8

U.S.C. § 1227(a)(2)(B)(i). Mielewczyk, 575 F.3d at 997.

[3] As with California Health and Safety Code § 11352(a),

California Health and Safety Code § 11361(b)—which, by its

own terms, is limited to offenses involving marijuana—is a

state law “specifically aimed at controlled substance

offenses.” Mielewczyk, 575 F.3d at 998. As a result, Guerrero-

Silva’s conviction under § 11361(b) renders him removable

under 8 U.S.C. § 1227(a)(2)(B)(i). Id. Guerrero-Silva’s

removability, in turn, strips this court of further jurisdiction

over his petition for review. See 8 U.S.C. § 1252(a)(2)(C).

GUERRERO-SILVA v. HOLDER 5065

III

The petition is DISMISSED.