The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 24 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TULIO KARTIK CARDOZO-ARIAS, No. 08-74870
Petitioner, Agency No. A078-079-767
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2011
San Francisco, California
Submission Withdrawn December 1, 2011
Resubmitted October 16, 2012
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, Senior District
Judge.**
Tulio Kartik Cardozo-Arias (Cardozo) petitions for review of the Board of
Immigration Appeals’ (BIA) affirmance of a decision by an Immigration Judge (IJ)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for Central Illinois, sitting by designation.
finding Cardozo removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA
held that Cardozo’s conviction for manufacturing controlled substances under
California law qualifies as a drug trafficking crime, which constitutes an
aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(B). Cardozo challenges
the BIA’s determination that his conviction qualifies as an aggravated felony under
the modified categorical approach and contends that there is insufficient proof in
the record to support such a finding.
The BIA concluded that “[Cardozo]’s abstract of judgment and information,
taken together, establish that he was convicted in California of knowingly
manufacturing concentrated cannabis, a substance that qualifies as marihuana
under Federal law. That offense corresponds to the manufacture of marihuana
under 21 U.S.C. § 841(a)(1) . . . Thus, [Cardozo]’s California offense is a drug
trafficking crime under 18 U.S.C. § 924(c) and, by extension, an aggravated felony
under section 101(a)(43)(B) of the Act.” Citing United States v. Snellenberger,
548 F.3d 699, 702 (9th Cir. 2008) (en banc) (per curiam), the BIA rejected
Cardozo’s argument that the IJ erred in relying on the Abstract of Judgment.
At the time of Cardozo’s conviction, Cal. Health & Safety Code §
11379.6(a) provided that “every person who manufactures, compounds, converts,
produces, derives, processes, or prepares, either directly or indirectly by chemical
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extraction or independently by means of chemical synthesis, any controlled
substance . . . shall be punished by imprisonment in the state prison for three, five,
or seven years and by a fine not exceeding fifty thousand dollars ($50,000).”
Although not explicitly contained in the statute, California courts have construed
Cal. Health & Safety Code, § 11379.6(a) as incorporating a knowledge
requirement. See People v. Coria, 985 P.2d 970, 971 (Cal. 1999) (“[A]lthough [a]
defendant may be convicted of the crime without proof that he intended to violate
the law, his knowledge of the character of the substance being manufactured is a
prerequisite to a conviction under that provision. . . .”).
The generic federal drug statute, 21 U.S.C. § 841(a)(1), provides that it is
“unlawful for 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. § 841(a)(1). The Abstract of Judgment and
Information demonstrate that Cardozo was convicted of manufacturing controlled
substances, in violation of Cal. Safety & Health Code § 11379.6(a) and that he
“manufacture[d], process[ed], or prepare[d] . . . concentrated cannabis. . .” See
Cabantac v. Holder, No. 09-71336, –F.3d– 2012 WL 3608532, at *2 (9th Cir.
Aug. 23, 2012) (per curiam) (“We hold that where, as here, the abstract of
judgment or minute order specifies that a defendant pleaded guilty to a particular
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count of the criminal complaint or indictment, we can consider the facts alleged in
that count. . . .”).
In turn, a conviction under § 11379.6(a) requires proof of knowledge of the
character of the controlled substance manufactured. See Coria, 985 P.2d at 971.
“‘Concentrated cannabis’ means the separated resin, whether crude or purified,
obtained from marijuana.” People v. Bergen, 166 Cal. App. 4th 161, 168 (2008)
(citation and internal quotation marks omitted). The federal definition of
marijuana includes the resin extracted from the Cannabis plant. See 21 U.S.C. §
802(16). Therefore, the documents in the administrative record establish, under the
modified categorical approach, that Cardozo’s conviction corresponds to the
generic definition of manufacturing controlled substances, and thus qualifies as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B).1
PETITION DENIED.
1
Cardozo’s reliance on Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1079 (9th
Cir. 2007), United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) (en banc), and Li
v. Ashcroft, 389 F.3d 892 (9th Cir. 2004), is unavailing, as those cases were
decided prior to our recent jurisprudence approving reliance on Abstracts of
Judgment.
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