Jeune v. Atty Gen USA

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

2-20-2007

Jeune v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-3103

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 05-3103

JEAN JUNIOR JEUNE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of Final Decision of the

Board of Immigration Appeals

BIA No.: A37-089-885

Immigration Judge: Donald Vincent Ferlise

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 11, 2006

Before: SMITH and ROTH, Circuit Judges,

and IRENAS, District Judge*

*

The Honorable Joseph E. Irenas, Senior District Judge

for the United States District of New Jersey, sitting by

designation.

1

(Filed: February 20, 2007)

OPINION

SMITH, Circuit Judge.

The instant appeal raises a discrete issue: whether a

conviction under 35 PA. CONS. STAT. ANN. § 780-113(a)(30)

(“[M]anufacture, delivery, or possession with intent to

manufacture or deliver, a controlled substance”), without any

additional facts, constitutes an “aggravated felony” under the

Immigration and Nationality Act (“INA”). See 8 U.S.C. §

1227(a)(2)(A)(iii). It cannot. To hold otherwise would be

inconsistent with our recent holding in Garcia v. Attorney

General of the United States, 462 F.3d 287 (3d Cir. 2006), that

a violation of 35 PA. CONS. STAT. ANN. § 780-113(a)(30) is not

categorically an aggravated felony.

I. Facts and Procedural History

Jean Jeune (“Jeune”) filed a petition for a writ of habeas

corpus and stay of removal with the United States District Court

for the Eastern District of Pennsylvania, asking for review of the

lawfulness of the final order of removal ordered against him by

the Board of Immigration Appeals (“BIA”). Congress

subsequently eliminated district court jurisdiction over habeas

petitions filed by aliens concerning removal orders. See 8

2

U.S.C. § 1252(a)(5). Jeune’s habeas petition was converted to

a petition for review by this Court.

Jeune is a native and citizen of Haiti. He entered the

United States as a lawful permanent resident on September 7,

1980, at the age of eleven. Jeune was arrested on February 20,

1996 for possession of marijuana and charged with one count of

violating 35 PA. CONS. STAT. ANN. § 780-113(a)(30). The

statute states, in relevant part:

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.

Id. Jeune pled guilty and was sentenced to five years probation.

On February 21, 2002, he was charged with being subject

to removal under INA § 237(a)(2)(A)(iii) for committing an

“aggravated felony” of “illicit trafficking in a controlled

substance,” and under INA § 237(a)(2)(B)(i) for violating “any

3

law . . . relating to a controlled substance.” See 8 U.S.C. §

1227(a)(2)(A)(iii), (a)(2)(B)(i). These charges followed from

his conviction under 35 PA. CONS. STAT. ANN. § 780-113(a)(30).

The Immigration Judge (“IJ”) found that Jeune’s conviction

constituted an aggravated felony and therefore prevented him

from applying for discretionary relief from removal. The IJ

ordered Jeune removed from the United States. The BIA

affirmed.

II. Discussion

We have jurisdiction over Jeune’s petition for review

pursuant to 8 U.S.C. § 1252(a)(2)(D). See Ng v. Att’y Gen., 436

F.3d 392, 394 (3d Cir. 2006) (noting that our jurisdiction

extends to “questions of law raised upon a petition for review,”

including petitions for review of removal orders based on

aggravated felony convictions). We exercise plenary review

over Jeune’s legal argument that he was not convicted of an

aggravated felony. See Tran v. Gonzales, 414 F.3d 464, 467 (3d

Cir. 2005).

Jeune contends that the IJ erred by holding that Jeune had

committed an aggravated felony within the meaning of the INA

§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The Government

argues that we are bound by this Court’s decision in Garcia v.

Attorney General of the United States, 462 F.3d 287 (3d Cir.

2006). Though the Government is correct, we suspect that our

fidelity to Garcia will be cold comfort to them. Garcia dictates

4

that the practically non-existent record in this case cannot

support an aggravated felony determination. We will reverse

the BIA and remand for further proceedings consistent with this

opinion.

Aliens who have been convicted of an aggravated felony

are ineligible for discretionary relief from an order of removal.

See 8 U.S.C. § 1158(b)(2)(A)(ii) (asylum); 8 U.S.C. §

1229(a)(3) (cancellation of removal); 8 U.S.C. §

1231(b)(3)(B)(ii) (withholding of removal). The INA defines an

aggravated felony as “illicit trafficking in a controlled substance

(as defined in section 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).

We set out the framework for determining whether an

offense is an aggravated felony in Gerbier v. Holmes, 280 F.3d

297, 313 (3d Cir. 2002). We held that there are two routes by

which an offense may qualify as an aggravated felony. Id.

Under the first route, the illicit trafficking approach, the state

conviction is an aggravated felony if it is a felony under state

law and contains a “trafficking element.” Id. Under the second

route, the hypothetical federal felony approach, the state

conviction is an aggravated felony if it would qualify as a felony

under the Federal Controlled Substances Act. Id. at 299.

We elaborated in Singh v. Ashcroft, 383 F.3d 144 (3d Cir.

2004), that we should presumptively apply the “formal

5

categorical approach” when making the Gerbier determination.

Id. at 147 (citing Taylor v. United States, 495 U.S. 575, 600

(1990)). Under this approach, we “must look only to the

statutory definitions of the prior offenses, and may not consider

other evidence concerning the defendant’s prior crimes,

including, the particular facts underlying [a] conviction[ ].”

Singh, 383 F.3d at 147-48 (internal quotes omitted).

However, some statutes may require departure from the

formal categorical approach. Id. at 162. The “statute of

conviction” invites departure when it is phrased in the

disjunctive such that it is unclear from the face of the statute

whether the conviction was an aggravated felony. Id. (“Where

some variations meet the aggravated-felony requisites and others

do not, we have . . . allowed further inquiry to see which

variation was actually committed.”). We held in Garcia that 35

PA. CONS. STAT. ANN. § 780-113(a)(30) “is disjunctive, and

therefore departure from the formal categorical approach is

appropriate.” 462 F.3d at 293.

A. The Illicit Trafficking Route

In Garcia, we recognized that a conviction under 35 PA.

CONS. STAT. ANN. § 780-113(a)(30) is a felony under state law

and, therefore, constitutes an aggravated felony if it contains a

“trafficking element.” See Garcia, 462 F.3d at 293. As 35 PA.

6

CONS. STAT. ANN. § 780-113(a)(30) is not categorically clear as

to whether trafficking is an element of the offense, we look to

the facts of the conviction. Garcia, 462 F.3d at 293. To contain

a trafficking element, a state felony must involve “the unlawful

trading or dealing of a controlled substance.” Gerbier, 280 F.3d

at 305.

In Garcia, we looked to the charging instrument to

determine whether the conviction contained a trafficking

element. 462 F.3d at 292-293. We may look only to the records

of the state conviction to establish the facts of the underlying

conviction. Singh, 383 F.3d at 162-63. Unfortunately, the

appellate record contains only three documents relating to the

state conviction; the charging instrument, the sentence, and the

certificate of probation. None of these documents shed any light

on the facts of the conviction. Neither counsel has aided our

inquiry. The record indicates only that Jeune was sentenced to

five years probation, court costs, and $6,600 in restitution to

“Donald Lee, Comcast Cellular Communication Corp.” This

record’s vagueness distinguishes the instant case from Garcia,

where the charging instrument related that “the defendant

unlawfully sold and delivered a controlled substance, to wit,

marijuana to an undercover police officer, and at a latter time on

the same date the [defendant] possessed an additional 38 packets

of marijuana [] in a quantity and under circumstances indicating

intent to deliver.” 462 F.3d at 293.

The Garcia panel concluded that, “it is clear from the

7

criminal complaint that Garcia pled guilty to delivery and

possession with the intent to deliver.” Id. The Garcia panel

stated:

In Gerbier, we noted that “distribution,

solicitation, [and] possession with intent to

distribute” suggest trading or dealing in a

controlled substance. Since Garcia pled guilty to

delivery and possession with the intent to deliver,

the Pennsylvania equivalent of distribution and

possession with the intent to distribute, his

conviction indicates that he was trading or dealing

in a controlled substance. Moreover, the criminal

complaint clearly establishes that Garcia did in

fact sell drugs to an undercover officer. For these

reasons, we conclude that Garcia’s Pennsylvania

drug conviction is an aggravated felony under the

illicit trafficking route of Gerbier.

Id. (internal citations omitted). The record before us reveals no

such specificity.

The charging instrument indicates that, after Jeune’s

conviction, “the Commonwealth will proceed under 18 PA.

CONS. STAT. ANN. § 7508 (concerning drug trafficking

sentencing and penalties) and seek imposition of a sentence in

accordance.” The Government contends that we may conclude

based solely on this information that Jeune committed an

aggravated felony.

8

The Government asks us to rest our decision on this

slender reed.1 It cannot support the IJ’s decision. The

Government’s argument is superficially plausible. The very title

of the sentencing provision indicates that 18 PA. CONS. STAT.

ANN. § 7508 “concern[s] drug trafficking.” However, this

sentencing provision is mandatory for convictions under 35 PA.

CONS. STAT. ANN. § 780-113(a)(30). 18 PA. CONS. STAT. ANN.

§ 7508(c). The sentencing provision states, in relevant part,

that:

(a) General rule.--Notwithstanding any other

provisions of this or any other act to the contrary,

the following provisions shall apply:

(1) A person who is convicted of

violating section 13(a)(14), (30) or

(37) of the act of April 14, 1972

(P.L. 233, No. 64), known as The

1

The Government “has the burden of establishing by

clear and convincing evidence that, in the case of an alien who

has been admitted to the United States, the alien is deportable.”

8 U.S.C. § 1229a (“No decision on deportability shall be valid

unless it is based upon reasonable, substantial, and probative

evidence.”); see Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132

(10th Cir. 2005) (holding that the Government failed to meet its

burden of showing that a prior state conviction subjected a

resident alien to deportation “because the weakness of the

administrative record does not satisfy the stringent evidentiary

standard”).

9

Controlled Substance, Drug,

Device and Cosmetic Act, where

the controlled substance is

marijuana shall, upon conviction,

be sentenced to a mandatory

minimum term of imprisonment

and a fine as set forth in this

subsection:

(i) when the amount of marijuana

involved is at least two pounds, but

less than ten pounds, or at least ten

live plants but less than 21 live

plants; one year in prison and a

fine of $5,000 or such larger

amount as is sufficient to exhaust

the assets utilized in and the

proceeds from the illegal activity;

however, if at the time of

sentencing the defendant has been

convicted of another drug

trafficking offense: two years in

prison and a fine of $10,000 or

such larger amount as is sufficient

to exhaust the assets utilized in and

the proceeds from the illegal

activity.

18 PA. CONS. STAT. ANN. § 7508(a). The fact that the

prosecution intended to proceed under this sentencing provision

tells us no more than that Jeune was convicted under 35 PA.

10

CONS. STAT. ANN. § 780-113(a)(30). As the Garcia panel held

that 35 PA. CONS. STAT. ANN. § 780-113(a)(30) is not

categorically a trafficking offense, the Government’s argument

cannot stand. See 462 F.3d at 293. The Garcia holding and the

argument that sentencing under 18 PA. CONS. STAT. ANN. §

7508 alone establishes a trafficking element are mutually

incompatible.

If we reject the Government’s argument on this point, we

have no information before us to establish a “trafficking

element” beyond the mere fact of the conviction. The

mandatory minimums in the sentencing provision indicate that

Jeune possessed less than two pounds of marijuana or fewer

than ten live plants. 18 PA. CONS. STAT. ANN. § 7508(a)(1)(i).

The absence of a fine “to exhaust the assets utilized in and the

proceeds from the illegal activity” suggests the absence of a

criminal enterprise (though the thin record leaves the basis of

the $6,600 restitution payment a mystery). See id. The sentence

of only probation suggests the possibility of a non-trafficking

offense. As the Garcia panel stated, a person convicted under

35 PA. CONS. STAT. ANN. § 780-113(a)(30) may have been

growing marijuana for personal use. 462 F.3d at 293, n.9.2

2

The Garcia panel observed:

[T]he key is whether the provision is disjunctive

in a relevant sense. Here, the Pennsylvania

statute describes three distinct offenses:

manufacture, delivery, and possession with the

11

intent to deliver or manufacture. Based on the

broad scope of section 13(a)(30), it appears that

the section 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. For

example, there may be circumstances in which a

defendant simply manufactured drugs for his own

personal use. As a result, it is unclear from the

face of the statute whether a conviction under the

section automatically qualifies as an aggravated

felony. Therefore, the statute is disjunctive in a

relevant sense and departure from the categorical

approach is appropriate. . . .

462 F.3d at 293, n.9 (emphasis added). In this footnote, the

Garcia Court specifically pointed to a source of ambiguity in 35

PA. CONS. STAT. ANN. § 780-113(a)(30), though not necessarily

the sole source. Id. Therefore, the charging statement does not

eliminate the relevant ambiguity by demonstrating that Jeune

“unlawfully manufactured, delivered, or possessed with intent

to deliver,” excluding the possession with intent to manufacture

offense included in the statute. The fact that the charging

instrument omits the intent to “manufacture or” from the

possession crime does not eliminate the ambiguity under

Garcia. Simply put, the first “manufacturing” crime is

ambiguous on its own. This is the most faithful interpretation of

Singh, 383 F.3d at 162. Specifically, Garcia recognizes that just

because “manufacturing” is not literally disjunctive does not

mean that it is unambiguous. Pursuant to Singh, the Garcia

12

Manufacturing marijuana for personal use would arguably not

be an aggravated felony. What we do know since Garcia is that

there are some offenses within the “broad scope” of 35 PA.

CONS. STAT. ANN. § 780-113(a)(30) that are not aggravated

felonies, and that something more than the bare fact of

conviction is required to reach that threshold. 462 F.3d at 293.

We lack that here.

Moreover, this Court has indicated that we must assume

that Jeune’s conduct was only the minimum necessary to

comport with the statute and record. Partyka v. Att’y Gen. of

U.S., 417 F.3d 408, 411 (3d Cir. 2005) (“Under this categorical

approach, we read the applicable statute to ascertain the least

culpable conduct necessary to sustain a conviction under the

statute.”); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)

(“Because the state statute under which Wilson pled guilty does

not contain sale for remuneration as an element, we cannot

determine from the state court judgment that Wilson's

conviction necessarily entails a finding of remuneration.”);

Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (limiting

the inquiry to what the state court must necessarily have found).

To conform with these precedents, we must conclude that

Jeune’s conduct was the bare minimum necessary to trigger 35

panel focused on whether “some variations meet the

aggravated-felony requisites and others do not.” Id.

Manufacturing for others is an aggravated felony.

Manufacturing for one’s self is likely not.

13

PA. CONS. STAT. ANN. § 780-113(a)(30) and therefore does not

constitute an aggravated felony.

B. The Hypothetical Federal Felony Route

We held in Garcia that the defendant’s conviction was an

aggravated felony under the illicit trafficking route, and it was

therefore unnecessary for us proceed to the hypothetical federal

felony route. 462 F.3d at 293-94. The IJ’s examination of the

issue was cursory, stating only that Jeune’s conviction

constituted “a Class E felony under Title 18, U.S.C. 3559(a).”

However, as Jeune’s conviction does not, on the record before

us, constitute an aggravated felony under the illicit trafficking

route, we must proceed to the hypothetical federal felony route.

We have held that New Jersey’s similar statute

“criminaliz[ing] possession of at least one ounce (and less than

five pounds) of marijuana with intent to manufacture, distribute,

or dispense it,” is analogous to 21 U.S.C. § 841(a)(1), “which

proscribes the identical conduct.” Wilson, 350 F.3d at 381. The

analogous statute to 35 PA. CONS. STAT. ANN. § 780-113(a)(30)

is also 21 U.S.C. § 841(a)(1).

The instant case, however, presents a difficulty similar to

that which we faced in Wilson. 350 F.3d at 381. We observed

that:

The matter is somewhat more complicated,

however, because 21 U.S.C. §§ 841(b)(1)(D) and

14

(b)(4) establish an exception. The exception

provides that a person who violates Section

841(a) “by distributing a small amount of

marihuana for no remuneration” shall be punished

under the misdemeanor provisions of 21 U.S.C. §

844. Thus, gratuitous distribution of an undefined

“small amount” of marijuana “without

remuneration is not inherently a felony under

federal law.” Because the state statute under

which Wilson pled guilty does not contain sale for

remuneration as an element, we cannot determine

from the state court judgment that Wilson’s

conviction necessarily entails a finding of

remuneration.

Id. (citing Steele, 236 F.3d at 137) (internal citations omitted).

The instant case is essentially identical. The Pennsylvania

statute does not contain remuneration as an element. The

record, which we are permitted to examine under Garcia,

contains no indication that Jeune was distributing marijuana for

money. We must rely only on “what the convicting court must

necessarily have found to support the conviction.” Steele, 236

F.3d at 135; see also Gerbier, 280 F.3d at 313. Nevertheless,

the Government states that “there is no basis for making the leap

that this exception is the analogous federal statute to Jeune’s

conviction.” Yet, we cannot infer remuneration where neither

the face of the statute nor the record of the conviction establish

that it existed. We do know from the state sentence that Garcia

possessed less than two pounds of marijuana or fewer than ten

live plants. See 18 PA. CONS. STAT. ANN. § 7508(a)(1)(i). The

15

Government contends that the federal threshold for exceeding

the statutory “small amount” exception is far lower. We cannot

speculate, however, as to the amount of marijuana that Garcia

may have possessed.

Jeune’s conviction does not, on the record before us,

constitute an aggravated felony under the hypothetical federal

felony route.

III. Conclusion

Simply put, we clearly contemplated in Garcia situations

in which a conviction under 35 PA. CONS. STAT. ANN. § 780-

113(a)(30) would not constitute an aggravated felony. The

instant case presents a conviction under that statute with no

additional facts available from the record. We cannot hold

Jeune’s conviction to be an aggravated felony and remain

consistent with our holding in Garcia.

We will grant the petition for review and remand the case

to the BIA for further proceedings consistent with this opinion.

16