Carachuri-Rosendo v. Holder

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 29, 2009

No. 07-61006 Charles R. Fulbruge III

Clerk

JOSE ANGEL CARACHURI-ROSENDO

Petitioner

v.

ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

Respondent

Petition For Review of an Order

of the United States Board of Immigration Appeals

Before JONES, Chief Judge, and KING and ELROD, Circuit Judges.

EDITH H. JONES, Chief Judge:

Jose Angel Carachuri-Rosendo appeals an en banc order of the Board of

Immigration Appeals (BIA) holding that he is ineligible for cancellation of

removal based on a recidivist state misdemeanor conviction for drug possession

that could have been punished as a felony under the federal Controlled

Substances Act. The repeat conviction was deemed an aggravated felony under

the Immigration and Naturalization Act (INA). Because this holding is correct,

we DENY Carachuri’s petition for review.

No. 07-61006

I. Background

Carachuri was admitted to the United States in 1993 and became a lawful

permanent resident. In 2004, in a Texas court, he pled guilty to misdemeanor

possession of marijuana and was sentenced to 20 days in jail. See T EX. H EALTH

& S AFETY C ODE § 481.121. A year later, he pled nolo contendere, also in Texas,

to misdemeanor possession of Alprazolam (Xanax) and was sentenced to 10 days

in jail. See T EX. H EALTH & S AFETY C ODE § 481.117(b). He was not prosecuted

under Texas law as a recidivist. See T EX. P ENAL C ODE § 12.43.

In October 2006, Carachuri received notice that he was removable for

having “been convicted of a violation of . . . any law . . . of a State . . . relating to

a controlled substance.” See 8 U.S.C. § 1227(a)(2)(B)(i). Carachuri applied for

cancellation of removal,1 but an immigration judge ruled that Carachuri was

ineligible because he had been convicted of an aggravated felony. See 8 U.S.C.

§ 1229b(a)(3) (preventing cancellation of removal for aliens convicted of

aggravated felonies). Specifically, the judge ruled Carachuri had committed a

“drug trafficking crime,” an aggravated felony under the INA, 8 U.S.C.

§ 1101(a)(43)(B), which is defined by reference to 18 U.S.C. § 924(c)(2) as “any

felony punishable under the Controlled Substances Act.” Under the CSA, in

turn, a misdemeanor possession offense—committed after the conviction for a

prior misdemeanor possession offense is final—can be punished as a felony

because conviction requires a term of “not less than 15 days but not more than

2 years.” 21 U.S.C. § 844(a); 18 U.S.C. § 3559(a) (defining a felony as any offense

punishable by more than one year in prison). Because Carachuri’s second state

conviction could have been punished as a felony under the CSA, had he been

1

The Attorney General may cancel removal if an alien who is inadmissible or

deportable has resided in the United States continuously for at least seven years, has been a

lawful permanent resident for five years, and has not been convicted of an aggravated felony.

8 U.S.C. § 1229b(a).

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prosecuted in federal court, he committed a “drug trafficking crime,” making him

ineligible for cancellation of removal.

Carachuri appealed to the BIA, which issued an en banc opinion. The

BIA’s preferred interpretation of 8 U.S.C. § 1101(a)(43)(B) would require that an

alien’s “status as a recidivist drug possessor must have been admitted or

determined by a court or jury within the prosecution for the second drug crime.”

In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 391 (B.I.A. 2007). In other words,

the second possession offense, the BIA reasoned, must be prosecuted under a

state recidivism law that corresponds to the federal recidivism law; immigration

judges should not go outside the record of the second conviction to determine

what, hypothetically, might have been prosecuted. Id. at 393. The BIA did not

follow this reasoning, however, because it was bound by this court’s decision in

United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005). There, we

held, as the immigration judge did here, that a second state misdemeanor

possession offense qualifies as an aggravated felony simply because it could have

been prosecuted as a felony under federal law. Id. at 577. Accordingly, the BIA

dismissed Carachuri’s appeal, and Carachuri filed a timely petition for review.

II. Jurisdiction and Standard of Review

Although Carachuri has been deported, his removal does not render moot

an otherwise valid petition for review of a removal order because he could pursue

an application for cancellation of removal. See Lopez v. Gonzales, 549 U.S. 47,

52 n.2, 127 S. Ct. 625, 629 n.2 (2006). We are generally prohibited from

reviewing removal orders for aliens who have committed an aggravated felony.

Larin-Ulloa v. Gonzales, 462 F.3d 456, 460-61 (5th Cir. 2006) (citing 8 U.S.C.

§ 1252(a)(2)(C)). A statutory exception, however, confers jurisdiction to review

constitutional or legal questions raised in removal petitions. Id. at 461 (citing

8 U.S.C. § 1252(a)(2)(D)). Carachuri’s petition for review falls within this

exception, and we review the BIA’s resolution of legal claims de novo. See id.

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III. Discussion

Carachuri, with amicus curiae, advances the BIA’s preferred

interpretation of 8 U.S.C. § 1101(a)(43)(B) as applied to his case. Unlike the

BIA, he contends that this court’s alternative holding in United States v.

Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005), and our intervening decision

in United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. 2008), do not control his

case. They do.

In Sanchez-Villalobos, this court held, in a ruling since abrogated, that a

single state drug possession conviction qualifies as an aggravated felony if the

state crime is punishable under the CSA and it is punishable as a felony under

state or federal law. 412 F.3d at 576. In an alternative, but still viable, holding

this court also concluded that Sanchez’s state possession offense qualified as an

aggravated felony because it was his second possession offense and, therefore,

could have been punished as a felony under the CSA’s recidivism provision. Id.

As we have often recognized, alternative holdings are binding precedent, not

dicta. E.g., United States v. Wright, 496 F.3d 371, 375 n.10 (5th Cir. 2007).

The first holding was abrogated by the Supreme Court’s opinion in Lopez

v. Gonzalez, 549 U.S. 47, 127 S. Ct. 625 (2006), an immigration case. The Court

rejected the argument that a single possession offense punished as a felony

under state law, but as a misdemeanor under the CSA, qualifies as an

aggravated felony. The Court was concerned that varying state criminal law

classifications would frustrate the scheme Congress chose.2 Id. at 58-59,

127 S. Ct. at 632-33. Recognizing this potential incongruity, the Court concluded

that federal, not state law is determinative. It held that “a state offense

constitutes a ‘felony punishable under the Controlled Substances Act’ only if it

2

“We cannot imagine that Congress took the trouble to incorporate its own statutory

scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose

to punish a given act more heavily.” Id. at 58, 127 S. Ct. at 632-33.

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proscribes conduct punishable as a felony under that federal law.” Id. at 60,

127 S. Ct. at 633. This procedure, which looks to conduct proscribed by state law,

not just the elements of the state law offense, and compares that conduct to

federal law has been termed the “hypothetical approach.”3 See, e.g., United

States v. Cepeda-Rios, 550 F.3d 333, 335 (5th Cir. 2008) (per curiam); United

States v. Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir. 2008) (per curiam) denying

rh’g to 506 F.3d 545 (7th Cir. 2007); Behre v. Gonzales, 464 F.3d 74, 80, 84 (1st

Cir. 2006).

Although Lopez abrogated Sanchez-Villalobos’s first holding, the

alternative holding remained untouched. In United States v. Cepeda-Rios,

550 F.3d 333 (5th Cir. 2008) (per curiam), we reaffirmed that Lopez is

“consistent with our earlier ‘hypothetical’ approach in Sanchez-Villalobos,” and

determined that a second state possession offense that could have been punished

as a felony under federal law qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B). Id. at 334-35. Consequently, Carachuri’s case is controlled by

the alternative holding in Sanchez-Villalobos, as unaltered by the Supreme

Court in Lopez, and as reaffirmed in Cepeda-Rios.

Nevertheless, Carachuri argues that the hypothetical approach applied in

both Sanchez-Villalobos and Cepeda-Rios contravenes our prior case law. This

court follows a categorical approach for immigration cases, under which “courts

3

The hypothetical approach should not be confused with the modified categorical

approach. Under our modified categorical approach, a court or immigration official may look

at the record of conviction to determine under which subsection of a multi-offense statute an

alien was convicted. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006); Omari

v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005). Sometimes this court uses yet a different

approach in sentencing contexts. See United States v. Carbajal-Diaz, 508 F.3d 804, 807-09

(5th Cir. 2007) (explaining how the modified categorical approach differs for enumerated

offenses and crime of violence sentencing enhancements). Lopez’s hypothetical approach does

not involve looking at the record of conviction. It only means going beyond the state statute’s

elements to look at the hypothetical conduct a state statute proscribes. See United States v.

Pacheco-Diaz, 513 F.3d 776 , 778-779 (7th Cir. 2008) (per curiam) denying reh’g to 506 F.3d

545 (7th Cir. 2007).

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No. 07-61006

look to the text of the statute violated, not the underlying factual

circumstances.” See Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000);

Martinez v. Mukasey, 508 F.3d 255, 258 (5th Cir. 2008) (per curiam).4 Because

the hypothetical approach departs from past precedent, Carachuri argues,

Sanchez-Villalobos and Cepeda-Rios must be abandoned. See Central Pines

Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001) (“[O]ne panel of this

court may not overrule another.”)

This argument is misplaced. We are not confined to the categorical

approach in cases like Carachuri’s because the Supreme Court in Lopez goes

beyond the categorical approach. Lopez, 549 U.S. at 60, 127 S. Ct. at 633

(emphasis added) (ruling that if the conduct proscribed by state offense could

have been prosecuted as a felony under the CSA, then the state conviction

qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)); see Pacheco-

Diaz, 513 F.3d at 779; Rashid v. Mukasey, 531 F.3d 438, 443 (6th Cir. 2008)

(“The Lopez Court . . . embraced the hypothetical federal-felony approach.”).

Lopez did not hold that courts or immigration officials should look to the alien’s

actual conduct as reflected in the record of conviction. But courts must look

beyond the text of the state statute violated—a departure from the categorical

approach, which confines courts to that text. Pacheco-Diaz, 513 F.3d at 779

(“Looking at the conduct reflected in the state convictions, as opposed to the

precise state crime charged, is the only way to implement the hypothetical-

federal-felony view that Lopez adopted as its holding.”).

The hypothetical approach in Sanchez-Villalobos and Cepada-Rios moves

incrementally, and justifiably, from the Supreme Court’s holding in Lopez, which

involved only one state possession conviction. Under this court’s approach for

successive state possession convictions, a court or an immigration official

4

The modified categorical approach described in note 3 is an exception to the

categorical approach and is not at issue here.

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No. 07-61006

characterizes the conduct proscribed in the latest conviction, by referring back

to the conduct proscribed by a prior conviction as well.5 In Cepeda-Rios, we

ruled this procedure was supported by Lopez’s holding that federal law should

control; by its reasoning, which expressed concern that differences among state

laws will frustrate federal classifications; and by its footnote, which expressly

recognized that federal statutes referring to illicit drug “trafficking” are

“counterintuitively” defined to include recidivist possession offenses. Cepeda-

Rios, 530 F.3d at 335.6 Because nothing in Cepeda-Rios squarely contradicts our

prior cases, we may not disregard it.7

5

Although this court has already chosen sides, we note a circuit split regarding how

the hypothetical approach applies when the alien has two state possession convictions. The

Seventh Circuit agrees with this court’s approach. See Fernandez v. Mukasey, 544 F.3d 862

(7th Cir. 2008); United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007) reh’g denied,

513 F.3d 776 (7th Cir. 2008) (per curiam). But the First, Second, Third, and Sixth Circuits

have adopted the approach the BIA advocated in its en banc opinion in this case, 24 I. & N.

Dec. 382 (B.I.A. 2007). See Behre v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Alsol v. Mukasey,

548 F.3d 207 (2d Cir. 2008); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Rashid v.

Mukasey, 531 F.3d 438 (6th Cir. 2008).

6

See Lopez, 549 U.S. at 55 n.6, 127 S. Ct. at 630 n.6:

Of course, we must acknowledge that Congress did counterintuitively define

some possession offenses as “illicit trafficking.” Those state possession crimes

that correspond to felony violations of one of the three statutes enumerated in

§ 924(c)(2), such as possession of cocaine base and recidivist possession, see 21

U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C.

§ 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal

possession felonies or their state counterparts constitute “illicit trafficking in

a controlled substance” or “drug trafficking” as those terms are used in ordinary

speech. But this coerced inclusion of a few possession offenses in the definition

of “illicit trafficking” does not call for reading the statute to cover others for

which there is no clear statutory command to override ordinary meaning.

(emphasis added).

7

Carachuri argues that lenity should apply, but lenity is only appropriate where “there

is grievous ambiguity or uncertainty in the statute.” United States v. Salazar, 542 F.3d 139,

147 (5th Cir. 2008) (quoting Muscarello v. United States, 524 U.S. 125, 138-139, 118 S. Ct.

1911, 1919 (1998)). As we have interpreted the relevant statutory language, no such grievous

ambiguity exists.

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Carachuri, supported by amicus, also contends that criminal sentencing

cases, like Cepeda-Rios and Sanchez-Villalobos, should not be applied in the

immigration context, where the absence of criminal procedural safeguards

denies aliens a fair opportunity to challenge their prior convictions. Accordingly,

he reprises his argument that recidivism should be established at the prior state

criminal proceeding, not by an immigration judge. This is not a textual

argument, and the distinction it suggests has been repeatedly rejected. The

statute analyzed in both sentencing and immigration cases is the same. See

8 U.S.C. § 1101(a)(43)(B); United States v. Hernandez-Avalos, 251 F.3d 505, 509

(5th Cir. 2001). Further, Lopez explicitly recognized that a definition for the

aggravated felony at issue here controls both sentencing cases and the Attorney

General’s discretion to cancel removal. Lopez, 549 U.S. at 50-51, 127 S. Ct. at

628 (interpreting 8 U.S.C. § 1101(a)(43)(B)). This court is compelled to hold that

“Lopez ineluctably applies with equal force to immigration and criminal cases.”

United States v. Estrada-Mendoza, 475 F.3d 258, 261 (5th Cir. 2007) (per

curiam); see also Fernandez v. Mukasey, 544 F.3d 862, 868 (7th Cir. 2008);

United States v. Matamoros-Modesta, 523 F.3d 260, 264–65 (4th Cir. 2008);

United States v. Figueroa-Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007).

IV. Conclusion

For the foregoing reasons, Carachuri’s petition for review is DENIED.

8