                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 12-3668
                                   _____________

                           ALEX EDMOND ERIC SMITH,
                                             Petitioner

                                          v.

                          ATTORNEY GENERAL OF THE
                          UNITED STATES OF AMERICA,
                                                Respondent
                                _______________

                      On Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                              (BIA No. A036-799-753)
                   Immigration Judge: Honorable Walter A. Durling
                                 _______________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 28, 2013

             Before: FISHER, JORDAN and ALDISERT, Circuit Judges.

                              (Filed: November 5, 2013)
                                  _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.

      Alex Smith petitions for review of an August 23, 2012 decision of the Board of

Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) determination that
he is removable under 8 U.S.C. § 1227(a)(2)(A)(iii). For the reasons that follow, we will

deny the petition.

I.     Background

       Smith is a native and citizen of Antigua and Barbuda and has been a lawful

permanent resident of the United States since he immigrated to this country in 1981. On

March 31, 2010, he pled guilty in Pennsylvania state court to one violation of 35 Pa. Stat.

§ 780-113(a)(30), which criminalizes “the manufacture, delivery, or possession with

intent to manufacture or deliver, a controlled substance.” Based on that conviction, the

Department of Homeland Security (“DHS”) charged Smith with removability due to the

commission of an “aggravated felony” under the Immigration and Nationality Act

(“INA”).1 As evidence of Smith’s removability, DHS submitted to the IJ a copy of his

written guilty plea, in which he had agreed “to allow the Judge to incorporate … into the

record” the factual allegations “from the Affidavit of Probable Cause,” instead of having

the Assistant District Attorney summarize the facts on which his guilty plea was based.

(A.R. at 106.) The Affidavit of Probable Cause revealed that Smith had conspired with

his brother to buy 75 pounds of marijuana for $52,500.

       Based on that evidence, the IJ concluded that Smith had been convicted of an

aggravated felony under the INA and was therefore subject to deportation. Smith

appealed to the BIA, which affirmed the IJ’s decision. This timely petition followed.




       1
        The INA provides that “[a]ny alien who is convicted of an aggravated felony at
any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

                                             2
II.    Discussion2

       Smith argues that the BIA and IJ erroneously concluded that his 2010 conviction

constitutes an “aggravated felony” under the INA. Although he concedes that “the

Affidavit of Probable Cause contains information sufficient to base a determination that

the conviction was an Aggravated Felony” (Petitioner’s Opening Br. at 4 n.3), he says

that it was improper for the IJ to rely on the Affidavit in reaching its conclusion, and that,

absent the Affidavit, the record is insufficient to show that he committed an aggravated

felony.

       The INA defines “aggravated felony,” in relevant part, 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). Section

924(c) in turn defines “drug trafficking crime” as “any felony punishable under the

Controlled Substances Act.” 18 U.S.C. § 924(c)(2). A state drug conviction constitutes

an aggravated felony if “(a) it would be punishable as a felony under the federal

Controlled Substances Act, or (b) it is a felony under state law and includes an illicit

trafficking element.” Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 2008).

Accordingly, we have identified “two routes by which an offense may qualify as an

aggravated felony.” Jeune v. Att’y Gen., 476 F.3d 199, 201 (3d Cir. 2007). Under the

“illicit trafficking route,” “the state conviction is an aggravated felony if it is a felony



       2
        We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and “determine de novo
whether [Smith’s] conviction constituted an aggravated felony.” See Evanson v. Att’y
Gen., 550 F.3d 284, 288 (3d Cir. 2008).

                                               3
under state law and contains a ‘trafficking element.’” Id. (quoting Gerbier v. Holmes,

280 F.3d 297, 313 (3d Cir. 2002)). The second route – termed the “hypothetical federal

felony route” – requires that “we compare the offense of conviction to the federal

Controlled Substances Act to determine if it is analogous to an offense under that Act.”

Evanson, 550 F.3d at 289.

       Under either route, “we presumptively apply the ‘formal categorical approach’”

when making “aggravated felony” determinations, which requires that we “look only to

the statutory definitions of the prior offenses.” Garcia v. Att’y Gen., 462 F.3d 287, 291

(3d Cir. 2006) (quoting Singh v. Ashcroft, 383 F.3d 144, 147-48 (3d Cir. 2004)) (internal

quotation marks omitted). In other words, when comparing an offense to a hypothetical

federal felony or determining whether it contains a trafficking element, we generally

consider only the elements of the relevant statute. We may depart from the formal

categorical approach, however, when the statute of conviction “is phrased in the

disjunctive such that it is unclear from the face of the statute whether the conviction was

an aggravated felony.” Jeune, 476 F.3d at 202. In such an instance, we can apply the

“modified categorical approach,” which allows us to look beyond the statutory definition

for the limited purpose “of determining the elements necessarily found by a jury, or

admitted by a defendant in pleading guilty.” Evanson, 550 F.3d at 290 & n.4.

       As we have explained previously, a conviction under 35 Pa. Stat. § 780-113(a)(30)

– the statute of conviction involved here – is not necessarily an aggravated felony under

either the hypothetical federal felony approach or the illicit trafficking element approach.

See Evanson, 550 F.3d at 290. Under that Pennsylvania statute, which broadly

                                             4
criminalizes “the manufacture, delivery, or possession with intent to manufacture or

deliver, a controlled substance,” 35 Pa. Stat. § 780-113(a)(30), a person could be

prosecuted for “distributing a small amount of marijuana for no remuneration,” which

would not be equivalent to a federal drug felony, Catwell v. Att’y Gen., 623 F.3d 199, 207

(3d Cir. 2010), or for manufacturing drugs for personal use, which would not involve a

trafficking element, Garcia, 462 F.3d at 293 n.9. But the statute is “disjunctive,” in that

it “describes three distinct offenses: manufacture, delivery, and possession with the intent

to deliver or manufacture.” Id. at 293 & n.9. We are therefore not limited to considering

just Smith’s statute of conviction, but can apply the modified categorical approach to

determine whether he was convicted of an aggravated felony. Evanson, 550 F.3d at 291-

92.3

       Even under the modified categorical approach, however, we can only look beyond

the statutory definition to a limited extent and for a limited purpose. We are allowed “to

determine what elements formed the basis for a defendant’s underlying conviction” by

consulting “the charging document and jury instructions.”4 Id. at 291. When a defendant




       3
           In Evanson, we applied the modified categorical approach with regard to the
illicit trafficking element approach, and we expressed uncertainty as to whether “the
Pennsylvania statute is disjunctive in a sense that is relevant to the inquiry under the
hypothetical federal felony test.” 550 F.3d at 292 n.5. We subsequently resolved that
uncertainty by holding, in a case involving the hypothetical federal felony test, that,
because the Pennsylvania statute is divisible, “this Court will apply the modified
categorical approach.” Catwell, 623 F.3d at 207.
       4
        Although the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990),
defined the categorical approach in the context of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1), we apply the same approach “in evaluating whether predicate
                                             5
has pled guilty to the underlying offense, as Smith did, the Supreme Court’s decision in

Shepard v. United States permits us to examine the “statutory definition, charging

document, written plea agreement, transcript of the plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented,” with our focus directed at the

elements upon which the plea necessarily rested. Id. (quoting Shepard v. United States,

544 U.S. 13, 16 (2005)) (internal quotation marks omitted).

       Given that standard, Smith acknowledges that the IJ and the BIA could properly

consider his written guilty plea, as it is one of the documents expressly mentioned in

Shepard. See 544 U.S. at 16. Furthermore, he does not contest that, if the Affidavit of

Probable Cause had been properly incorporated into the written guilty plea, it could also

be considered, as it would thus have become part of the Shepard documents. Cf. Parrilla

v. Gonzalez, 414 F.3d 1038, 1044 (9th Cir. 2005) (“Although police reports and

complaint applications, standing alone, may not be used to enhance a sentence following

a criminal conviction, the contents of these documents may be considered if specifically

incorporated into the guilty plea or admitted by a defendant.” (citations omitted)).

Smith’s only argument against the use of the Affidavit is that, although the guilty plea

gave the judge permission to incorporate the Affidavit into the plea, it is unclear from the

record whether the Affidavit was actually incorporated. Because of that alleged

ambiguity, Smith says that the IJ and BIA were barred from considering the Affidavit, as




convictions fall within the definition of ‘aggravated felony’” in the INA. Evanson, 550
F.3d at 291.

                                             6
it is precisely the type of document the Shepard Court placed off-limits under the

modified categorical approach.

       But Smith cannot wish away the record so easily. His guilty plea specifically

stated the following: “Your plea is based on factual accusations placed in writing by the

police and sworn to before a District Justice who issued an arrest warrant for these

charges.” (A.R. at 106.) He was asked, “Are you willing to allow the Judge to

incorporate these factual accusations into the record from the Affidavit of Probable Cause

or would you prefer the Assistant District Attorney to summarize the facts on which you

plead?” (Id.) And he answered “incorporate.” (Id.) In other words, he was permitted to

participate in the framing of the record, and he unambiguously chose to have the

Affidavit of Probable Cause incorporated into his guilty plea. He expressly pled guilty to

the allegations in the Affidavit of Probable Cause. See Evanson, 550 F.3d at 290 & n.4

(explaining that the modified categorical approach allows courts to look beyond the

statutory definition for the limited purpose “of determining the elements necessarily

found by a jury, or admitted by a defendant in pleading guilty”). Under those

circumstances, it was entirely proper for the BIA and IJ to consider the Affidavit for the

limited purpose of determining whether Smith pled guilty to elements that constitute an

aggravated felony under the INA.

       Even Smith acknowledges that, once the Affidavit is taken into account, his

Pennsylvania conviction is an aggravated felony, and we agree.5 Because Smith’s prior


       Taking the hypothetical felony route, for example, “[a] state marijuana conviction
       5


is … equivalent to a federal drug felony if the offense involved payment or more than a
                                             7
conviction was indeed an aggravated felony, the BIA correctly determined that he is

removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

III.   Conclusion

       For the foregoing reasons, we will deny the petition for review.




small amount of marijuana.” Catwell, 623 F.3d at 206 (quoting Evanson, 550 F.3d at
289) (internal quotation marks omitted). We require the amount of marijuana possessed
by a defendant to be sufficient to qualify as a felony under the hypothetical federal felony
test so as to satisfy 21 U.S.C. § 841(b)(4), which provides that “gratuitous distribution of
an undefined small amount of marijuana without remuneration is not inherently a felony
under federal law.” Jeune, 476 F.3d at 205 (internal quotation marks omitted). Here, the
plea colloquy with the Affidavit reflects that Smith was convicted of possession with
intent to distribute 75 pounds – just over 34 kilograms – of marijuana. That amount is
obviously well beyond the “small amount” contemplated in § 841(b)(4) and is many
times the 120.5 grams we found large enough to constitute a felony in Catwell, 623 F.3d
at 209. Thus, viewed under the modified categorical approach, the record demonstrates
that Smith’s conviction would fall under 21 U.S.C. § 841(b)(1)(D), which penalizes as a
felony the possession of less than 50 kilograms of marijuana.

                                             8
