Cite as 24 I&N Dec. 452 (BIA 2008)

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

Matter of Lamin ARUNA, Respondent

File A44 754 412 - Baltimore

Decided February 26, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Absent controlling precedent to the contrary, a State law misdemeanor offense of

conspiracy to distribute marijuana qualifies as an “aggravated felony” under section

101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000),

where its elements correspond to the elements of the Federal felony offense of conspiracy

to distribute an indeterminate quantity of marijuana, as defined by 21 U.S.C. §§ 841(a)(1),

(b)(1)(D), and 846 (2000 & Supp. IV 2004).

FOR RESPONDENT: Mary Ann Berlin, Esquire, Baltimore, Maryland

FOR THE DEPARTMENT OF HOMELAND SECURITY: Billy J. Sapp, Assistant Chief

Counsel

BEFORE: Board Panel: FILPPU and PAULEY, Board Members; KESSLER, Temporary

Board Member.

PAULEY, Board Member:

The respondent has appealed from an Immigration Judge’s decision dated

October 4, 2007, finding him removable under section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), as an

alien convicted of an “aggravated felony.”1 The Department of Homeland

Security (“DHS”) opposes the appeal. The appeal will be dismissed.

1

The Immigration Judge also found the respondent removable as an alien convicted of

a violation of State law relating to a controlled substance under section 237(a)(2)(B)(i) of the

Act. The respondent does not dispute that he is removable from the United States on that

ground.

452

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Sierra Leone who was

convicted on January 2, 2007, of conspiracy to distribute a controlled

dangerous substance (marijuana) in violation of Maryland law. Relying on the

United States Supreme Court’s decision in Lopez v. Gonzales, 127 S. Ct. 625

(2006), the Immigration Judge determined that the respondent’s Maryland

offense is an aggravated felony within the meaning of sections 101(a)(43)(B)

and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(B) and (U) (2000), i.e., a

“conspiracy” to commit a “drug trafficking crime” under 18 U.S.C. § 924(c)

(2000). Specifically, the Immigration Judge concluded that the Maryland

offense of conspiracy to distribute marijuana qualifies as an aggravated felony

because it corresponds to an offense punishable as a felony under the Federal

Controlled Substances Act (“CSA”).

The only issue on appeal is whether the respondent’s offense is an

aggravated felony that renders him removable and ineligible for cancellation

of removal under section 240A(a)(3) of the Act, 8 U.S.C. § 1229b(a)(3)

(2000). The respondent argues that his Maryland offense cannot qualify as an

aggravated felony because it was classified as a “misdemeanor” under

Maryland law. In the alternative, he disputes the Immigration Judge’s

conclusion that his Maryland crime corresponds to any Federal felony.

II. LEGAL BACKGROUND

Section 101(a)(43) of the Act defines the term “aggravated felony” to

include a “drug trafficking crime” as defined in 18 U.S.C. § 924(c), “whether

in violation of Federal or State law,” as well as any “conspiracy” to commit

such an offense. In turn, 18 U.S.C. § 924(c)(2) defines “drug trafficking

crime” to mean “any felony punishable under the Controlled Substances Act

(21 U.S.C. § 801 et seq.).” The United States Supreme Court has held that “a

state offense constitutes a ‘felony punishable under the Controlled Substances

Act’ only if it proscribes conduct punishable as a felony under that federal

law.” Lopez v. Gonzales, supra, at 633. Thus, for a State drug offense to

qualify as a “drug trafficking crime” and, by extension, an aggravated felony,

it must correspond to an offense that carries a maximum term of imprisonment

exceeding 1 year under the CSA. Id. at 631 & n.7.

III. ISSUE

The issue on appeal is whether the respondent’s 2007 Maryland conviction

was for an offense that “proscribes conduct punishable as a felony” under the

453

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

CSA within the meaning of Lopez v. Gonzales, supra, at 633, such that it may

be considered a “drug trafficking crime” and, by extension, an “aggravated

felony.”

IV. ANALYSIS

At the outset, we reject the respondent’s contention that his Maryland

offense must be excluded from aggravated felony treatment simply by virtue

of the fact that Maryland law denominates it a “misdemeanor.” By placing the

term “aggravated felony” in quotes followed by the word “means,” Congress

made clear that “aggravated felony” is a term of art that is defined by the

subsections that follow, and it is well established that the term encompasses

nonfelony offenses that are otherwise encompassed by its language. Wireko

v. Reno, 211 F.3d 833, 835-36 (4th Cir. 2000); see also Biskupski v. Att’y Gen.

of U.S., 503 F.3d 274, 280 n.10 (3d Cir. 2007), and cases cited therein; Matter

of Small, 23 I&N Dec. 448 (BIA 2002). Under the rationale of Lopez v.

Gonzales, supra, whether a State drug offense is a “drug trafficking crime”

aggravated felony turns solely on its correspondence to a Federal felony, not

on how the State graded the offense. See Lopez v. Gonzales, supra, at 633

(rejecting as implausible the Government’s argument that “the law of the

convicting jurisdiction [is] dispositive” of whether an offense is a “felony”

within the meaning of 18 U.S.C. § 924(c)(2)); see also Matter of

Carachuri-Rosendo, 24 I&N Dec. 382, 399 (BIA 2007) (Pauley, concurring)

(“[T]he upshot of the approach adopted by the Court [in Lopez] is that the

penalty assigned by the State to a drug offense is irrelevant; it is the

hypothetical Federal penalty that could be applied that counts for ‘drug

trafficking crime’ aggravated felony purposes.”). Accordingly, we conclude

that a State drug offense that corresponds to a Federal felony qualifies as a

“drug trafficking crime” aggravated felony under section 101(a)(43)(B) of the

Act, even if the offense is classified as a misdemeanor under State law. We

now turn to the question whether such a correspondence exists in this case.

The Supreme Court has explained that “a state offense whose elements

include the elements of a felony punishable under the CSA is an aggravated

felony.” Lopez v. Gonzales, supra, at 631. The elements of the respondent’s

Maryland offense were a “conspiracy” to “distribute” a “controlled dangerous

substance,” marijuana. The distribution of controlled dangerous substances is

prohibited by section 5-602 of the Maryland Criminal Law, while the offense

of “conspiracy” is prohibited by the Maryland courts as a matter of State

common law. See Acquah v. State, 686 A.2d 690, 694 n.1 (Md. Ct. Spec. App.

1996). The CSA likewise prohibits the “distribution” of controlled substances

(including marijuana), 21 U.S.C. § 841(a)(1) (2000), and provides that “[a]ny

person who . . . conspires to commit any [such] offense . . . shall be subject to

454

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

the same penalties as those prescribed for the offense, the commission of

which was the object of the . . . conspiracy.” 21 U.S.C. § 846 (2000). The

Maryland Code and the CSA both define the term “distribution” to encompass

transfers of controlled substances without remuneration. Compare Md. Code

Ann., Crim. Law §§ 5-101(h), (l) (West 2007), with 21 U.S.C. §§ 802(8), (11)

(2000). See generally United States v. Washington, 41 F.3d 917, 919 (4th Cir.

1994) (holding that “[s]haring drugs with another constitutes ‘distribution’

under [the CSA]”). And both Maryland law and the CSA define “conspiracy”

to include any knowing agreement to commit a crime, even in the absence of

any “overt act” in furtherance of the agreement. Compare Hudson v. State,

832 A.2d 834, 850 (Md. Ct. Spec. App. 2003), with United States v. Shabani,

513 U.S. 10, 13-16 (1994). Thus, we conclude that the elements of the

respondent’s Maryland offense correspond to the elements of the Federal

offense of conspiracy to distribute marijuana, a crime that carries a maximum

penalty of 5 years’ imprisonment under the CSA, absent enhancements based

on quantity or recidivism. 21 U.S.C. §§ 841(b)(1)(D), 846 (2000 & Supp. IV

2004).

The respondent argues that marijuana distribution under Maryland law does

not correspond to a Federal felony because 21 U.S.C. § 841(b)(4) (2000)

provides that an offender who distributes a “small amount of marihuana for no

remuneration shall be treated” as if he committed simple possession, which is

a Federal misdemeanor under 21 U.S.C. § 844(a) (2000).2 According to the

respondent, the DHS failed to meet its burden of proving his deportability

because no evidence was provided to show that he was convicted of either

2

The CSA does not define a “small amount,” and the Federal courts of appeals have issued

few precedent decisions clarifying the meaning of the phrase. See, e.g., United States v.

Fort, 248 F.3d 475, 483 (5th Cir. 2001) (concluding that 561.2 pounds of marijuana is not

a “small amount”); United States v. Salazar-Flores, 238 F.3d 672, 674 n.1 (5th Cir. 2001)

(concluding that 195 pounds of marijuana is not a “small amount”). The United States Court

of Appeals for the Sixth Circuit has emphasized that 21 U.S.C. § 841(b)(4) was “designed

to address the casual sharing of marijuana; behavior that is akin to mere possession rather

than distribution.” Garcia-Echavarria v. United States, 376 F.3d 507, 514 n.5 (6th Cir.

2004). In accordance with that understanding, the court held that although distribution of

8 ounces of marijuana in violation of Kentucky law was a “small-scale drug transaction,” it

did not qualify for misdemeanor treatment under 21 U.S.C. § 841(b)(4) because it

represented “more than casual sharing.” Id.

The Seventh Circuit has held that the term “small amount” has no absolute meaning and

that the scope of the term depends not only on the weight of the marijuana distributed, but

also on the context in which it is distributed. United States v. Damerville, 27 F.3d 254,

258-59 (7th Cir. 1994) (holding that conspiracy to distribute 17.2 grams of marijuana in

prison could not be treated as a Federal misdemeanor because 17.2 grams was not a “small

amount” in prison, even if it would be so considered when distributed in the general

community).

455

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

distributing a large amount of marijuana or distributing marijuana for

remuneration. In other words, the respondent argues that the proper Federal

analogue for his State distribution offense is “misdemeanor marijuana

distribution” under 21 U.S.C. § 841(b)(4), rather than “felony marijuana

distribution” under 21 U.S.C. § 841(b)(1)(D). We reject the respondent’s

argument.

The present aggravated felony determination is subject to the “categorical

approach,” meaning that the “elements” of the respondent’s predicate offense

must correspond to the “elements” of an offense that carries a maximum term

of imprisonment of more than 1 year under the CSA. See Lopez v. Gonzales,

supra, at 631; Matter of Carachuri-Rosendo, supra, at 389. For purposes of

categorical analysis, the “elements” of a Federal felony under the CSA are

those facts that must be proved to a jury beyond a reasonable doubt in order

to convict. Shepard v. United States, 544 U.S. 13, 24-26 (2005) (discussing

the interplay between the categorical approach and the Sixth Amendment jury

trial requirements announced in Jones v. United States, 526 U.S. 227 (1999),

and Apprendi v. New Jersey, 530 U.S. 466 (2000)).

Under Apprendi v. New Jersey, supra, at 490, and its progeny, any

aggravating fact (other than a prior conviction) that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt. Consequently, such facts may often

need to be treated as the equivalent of offense “elements” for purposes of

categorical analysis. Matter of Martinez-Zapata, 24 I&N Dec. 424, 425-26

(BIA 2007); Matter of Carachuri-Rosendo, supra, at 388-89. By contrast,

mitigating facts that decrease the penalty below the statutory maximum need

not be proved to a jury or treated as “elements” for any purpose. Apprendi v.

New Jersey, supra, at 490 n.16 (noting that where a judge finds a fact which

allows a defendant to “escape the statutory maximum” attached to a jury

verdict, that finding by the judge “neither expos[es] the defendant to a

deprivation of liberty greater than that authorized by the verdict according to

statute, nor is the judge imposing upon the defendant a greater stigma than that

accompanying the jury verdict alone”). Thus, because the categorical

approach is concerned only with the facts that a jury must have decided

beyond a reasonable doubt, it follows that the respondent’s Maryland offense

must correspond not to the Federal “offense” that carries the lowest penalty

(since mitigating facts need not have been proved to a jury beyond a

reasonable doubt), but rather to the offense that may be proved to a jury upon

the fewest facts. Cf. United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir.

2003).

A Federal prosecutor seeking to convict a defendant of marijuana

distribution under the CSA need not prove to a jury beyond a reasonable doubt

that the quantity of marijuana distributed was not a small amount or that a

456

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

remunerative exchange occurred. On the contrary, according to the

United States Court of Appeals for the Fourth Circuit, in whose jurisdiction

this proceeding arises, “[21 U.S.C.] § 841(b)(1)(D) is the ‘baseline’ provision

because it states a complete crime upon the fewest facts.” United States v.

Hamlin, supra, at 670 (holding that the statutory maximum penalty for a

person convicted of distributing an indeterminate amount of marijuana is the

5-year term of imprisonment specified by 21 U.S.C. § 841(b)(1)(D), and not

the shorter period called for by 21 U.S.C. § 841(b)(4) (citing United States v.

Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002), and United States v. Outen,

286 F.3d 622, 638 (2d Cir. 2002))); see also United States v. Walker, 302 F.3d

322, 324-25 (5th Cir. 2002).3 Accordingly, 21 U.S.C. § 841(b)(4) does not

define “elements” of the “offense” of “misdemeanor marijuana distribution,”

as the respondent argues; rather, it merely defines a “mitigating exception” to

the otherwise applicable 5-year statutory maximum. United States v. Hamlin,

supra, at 671. As with an affirmative defense, moreover, it is ultimately the

defendant who bears the burden of proving the additional facts, i.e., the

“smallness” of the amount of marijuana and the absence of remuneration, that

trigger this mitigating exception. Id. (holding that “the possibility that the

defendant can ‘escape the statutory maximum’ by showing that he distributed

‘a small amount of marijuana for no remuneration’ does not affect the

five-year statutory maximum” (quoting Apprendi v. New Jersey, supra, at 490

n.16 and 21 U.S.C. § 841(b)(4))).

We conclude that facts that must be proved by the accused in order to

support a reduced sentence do not constitute “elements” of an offense for

purposes of categorical analysis.4 Thus, the respondent’s Maryland offense

3

The First Circuit has likewise endorsed this approach, albeit in a different context.

United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 52-53 (1st Cir. 2004).

4

The Third Circuit has arrived at a contrary conclusion in several precedent decisions,

treating the presence of remuneration as if it were an “element” of an “offense” defined by

21 U.S.C. § 841(b)(4) that must be established categorically by the DHS. Jeune v. Att’y Gen.

of U.S., 476 F.3d 199, 205 (3d Cir. 2007); Wilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir.

2003); Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. 2001). As we have held in the past,

we owe deference to the meaning of Federal criminal law as articulated in precedent

decisions of the Supreme Court and the Federal circuit courts of appeals. Matter of

Carachuri-Rosendo, supra, at 385 (citing Matter of Yanez, 23 I&N Dec. 390, 396-97 (BIA

2002)). Thus, these Third Circuit precedents are controlling in removal proceedings arising

within the Third Circuit. However, we respectfully disagree with the Third Circuit’s

reasoning as it relates to marijuana distribution offenses, and we therefore decline to apply

those precedents in removal proceedings arising outside the Third Circuit.

457

Cite as 24 I&N Dec. 452 (BIA 2008)

Interim Decision #3600

qualifies as a drug trafficking crime and, by extension, an aggravated felony,

because its elements correspond to the elements of the Federal felony of

conspiracy to distribute an indeterminate quantity of marijuana.5

V. CONCLUSION

In conclusion, we find that the respondent’s Maryland offense of conspiracy

to distribute marijuana is an aggravated felony under sections 101(a)(43)(B)

and (U) of the Act, despite its classification as a “misdemeanor” under State

law, because the elements of that State offense correspond to the elements of

an offense that carries a maximum penalty of 5 years’ imprisonment under the

CSA. Lopez v. Gonzales, supra, at 633. Accordingly, the respondent’s appeal

will be dismissed.

ORDER: The appeal is dismissed.

5

The respondent, who pled guilty, made no effort during his proceedings before the

Immigration Judge to prove that the quantity of marijuana in his offense was “small” or that

his offense involved a conspiracy to distribute marijuana for no remuneration, beyond his

mere assertion of such, nor does he request a remand for this purpose. See

Garcia-Echavarria v. United States, supra, at 513; cf. United States v. Washington, 17 F.3d

230, 232 (8th Cir. 1994) (stating that a defendant bears the initial burden to prove that a

firearm is an “antique” so as to be exempted from the definition of a “firearm”); Matter of

P-F-, 20 I&N Dec. 661, 663 n.2 (BIA 1993) (same). See generally Matter of Babaisakov,

24 I&N Dec. 306 (BIA 2007).

458