                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 19 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JUAN M. CORONA-GARCIA,

                Petitioner,

    v.                                                   No. 04-9549
                                                    (BIA No. A70-749-886)
    ALBERTO R. GONZALES,        *
                                                     (Petition for Review)

                Respondent.




                              ORDER AND JUDGMENT         **




Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Petitioner Juan M. Corona-Garcia seeks review of an order removing him

from the United States based on his state conviction for aiding and abetting the

delivery of a controlled substance (methamphetamine), which the Immigration

Judge (IJ) held warranted petitioner’s removal both as an “aggravated felony” and

as a crime “relating to a controlled substance” under 8 U.S.C. § 1227(a)(2)(A)(iii)

and (a)(2)(B)(i). The Board of Immigration Appeals (BIA) summarily affirmed,

making the IJ’s decision the final agency determination for purposes of judicial

review. See 8 C.F.R. § 1003.1(e)(4). As explained below, petitioner has failed to

negate the conditions warranting removal under § 1227(a)(2). Accordingly, we

dismiss his petition for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C).   1



       Petitioner was indicted for aiding and abetting another defendant’s delivery

of methamphetamine in violation of Idaho Code § 37-2732(a)(1) (delivery of

controlled substance) and § 18-204 (aiding and abetting). App. 201-02. He was

adjudged “guilty as charged” on the basis of his plea, and given a sentence of

three to six years’ confinement, execution of which was suspended under Idaho

Code § 19-2601(2) in favor of a six-year term of probation. App. 198-99.

       The Department of Homeland Security took petitioner into custody in

anticipation of removal proceedings under § 1227(a)(2), and transferred him to a


1
       The limited nature of our review in connection with the jurisdictional bar in
§ 1252(a)(2)(C) is explained in Cruz-Garza v. Ashcroft , 396 F.3d 1125, 1127 n.2
(10 th Cir. 2005), and cases discussed therein.

                                            -2-
facility in Colorado. Thereafter, petitioner moved for a transfer of venue to an

immigration tribunal within the Ninth Circuit, insisting that his case ultimately be

reviewed by (and under the precedent of) the circuit with jurisdiction over the

state where the operative conviction had been obtained.    2
                                                               In particular, he sought

the benefit of Lujan-Armendariz v. INS , 222 F.3d 728 (9 th Cir. 2000), which

ameliorated the immigration consequences of certain state drug offenses so as to

replicate the effect of the Federal First Offender Act (FFOA), 18 U.S.C. § 3607,

placing certain deferred/expunged adjudications for first-time, simple-possession

offenses outside the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), and,

thus, outside the removal provisions in § 1227(a)(2).     See Lujan-Armendariz ,

222 F.3d at 734-38, 742-43, 749-50 (reaffirming Ninth Circuit view after

amendment of § 1101(a)(48)(A)).     3
                                        An IJ sitting in Denver denied petitioner’s

motion and found him removable under § 1227(a)(2)(A)(iii) and (a)(2)(B)(i). The

IJ held that the venue issue was legally inconsequential, since petitioner’s crime

would not have qualified as a simple possession offense for FFOA purposes in

2
       A petition for review of a removal order “shall be filed in the court of
appeals for the judicial circuit in which the immigration judge completed the
proceedings,” 8 U.S.C. § 1252(b)(2), and the law of that circuit properly governs
the case, Peters v. Ashcroft , 383 F.3d 302, 305 n.2 (5 th Cir. 2004).
3
      The Third Circuit rejected the Ninth Circuit’s equal protection rationale for
extending FFOA benefits to state offenders in this way in   Acosta v. Ashcroft ,
341 F.3d 218, 225-27 (3d Cir. 2003), which we credited but did not expressly
adopt in our rejection of a similar argument regarding an expunged foreign
conviction in Elkins v. Comfort , 392 F.3d 1159, 1162-64 (10 th Cir. 2004).

                                            -3-
any event. Petitioner raised the same issue (among others) to the BIA, App. at 23,

77, which affirmed the IJ’s decision without opinion.

       The focus of petitioner’s primary objection has shifted over time. He

continues to insist that Ninth Circuit law would have favored his cause, but the

precedent and point of law emphasized now are not           Lujan-Armendariz and the

extension of FFOA benefits to state offenders. Instead, petitioner relies heavily

on Cazarez-Gutierrez v. Ashcroft     , 382 F.3d 905 (9 th Cir. 2004), which has

nothing to do with the FFOA, but does hold that state drug possession offenses

that would not be punishable as felonies under federal drug law should not be

counted as aggravated felonies for immigration purposes simply because a state

chooses to classify them as such.     Id. at 909-10, 918.

       As the government has pointed out, one critical problem with the latter

argument is that it relates only to the “aggravated felony” conviction provision in

§ 1227(a)(2)(A)(iii). The “controlled substance” conviction provision remains a

distinct basis sufficient in itself to support removability under § 1227(a)(2)(B)(i).

An appellate challenge that extends to only one of two alternate bases for a

disposition necessarily leaves that disposition standing,       see Berna v. Chater , 101

F.3d 631, 634 (10 th Cir. 1996), which in this case would preserve the negation of

our jurisdiction under § 1252(a)(2)(C).




                                             -4-
       In contrast, petitioner’s argument under        Lujan-Armendariz , that the FFOA

expungement provision should be deemed to apply to first time state offenders

who would have qualified under the FFOA had they been federally prosecuted,

would undercut the existence of a     conviction per se, thus negating either predicate

under § 1227(a)(2). It is not clear whether petitioner intends to reassert this

argument. He does not cite     Lujan-Armendariz in his brief, though he does appear

at one point to invoke the substance of its holding.       See Op. Br. at 24 (noting

“[t]he very first state conviction for simple possession of a drug, whether felony

or misdemeanor, in the Ninth Circuit, can be eliminated for immigration purposes

by ‘rehabilitative relief’”). Even if we deem this oblique reference sufficient to

present the matter for review, however, we agree with the IJ that petitioner’s

conviction for aiding and abetting the    delivery of methamphetamine could not in

any event have qualified under the FFOA.      4




4
        We properly look to the offense elements stated in the charging document
in conjunction with the judgment of conviction in determining the nature of the
offense. Hernandez-Martinez v. Ashcroft , 343 F.3d 1075, 1076 (9 th Cir. 2003);
see also United States v. Venegas-Ornelas , 348 F.3d 1273, 1276 (10 th Cir. 2003),
cert. denied , 125 S. Ct. 494 (2004). Here, these show petitioner was charged with
and convicted of aiding the delivery of a controlled substance, specified in the
indictment as methamphetamine. It is not clear why, but petitioner’s commitment
order mistakenly refers to “Aid & Abet Possession of A Controlled Substance
With Intent to Deliver,” App. at 203, but as possession with intent to deliver is
not in any event simple possession, the difference is immaterial to our analysis.
Petitioner’s occasional reference in his brief to a charge of “Aiding and Abetting
Possession,” Op. Br. at 9, 13, is misleading, but, as he otherwise consistently
                                                                       (continued...)

                                            -5-
       The FFOA “applies exclusively to first-time drug offenders who are guilty

only of simple possession” as specified in 21 U.S.C. § 844.       Dillingham v. INS ,

267 F.3d 996, 1005 (9 th Cir. 2001); see Elkins v. Comfort , 392 F.3d 1159, 1160

(10 th Cir. 2004). But delivery of a controlled substance, which is sufficient to

qualify as distribution in violation of 21 U.S.C. § 841,      United States v. Wigley ,

627 F.2d 224, 226 (10 th Cir. 1980), involves more than simple possession.        5



Indeed, this point is plainly reflected in the Idaho statute under which petitioner

was convicted.    Compare Idaho Code § 37-2732(a) (specifying offenses involving

manufacture or delivery of, or possession with intent to manufacture or deliver,

controlled substance)   with id. § 37-2732(c) (specifying offenses involving only

possession of controlled substance).




4
 (...continued)
refers to delivery, we assume this was inadvertent.
5
       For immigration purposes, a conviction of aiding or abetting a crime under
federal law is treated as a conviction of the substantive offense, because “the
aiding and abetting statute [18 U.S.C. § 2] does not define a separate offense but
rather makes punishable as a principal one who aids or abets another in the
commission of the substantive offense.”    Londono-Gomez v. INS , 699 F.2d 475,
476 (9 th Cir. 1983) (distinguishing aiding/abetting from misprision). The state
law under which petitioner was convicted likewise holds aiders/abettors to be
principals guilty of the substantive offense and distinguishes them from mere
accessories after the fact, compare Idaho Code § 18-204 and § 19-1430     with id.
§ 18-203 and § 18-205. Thus, petitioner’s conclusory objection that the state
record does not foreclose the possibility that his was merely “a misprision of a
felony type of accessory conviction” that should not carry the consequences of a
substantive drug offense, Op. Br. at 18, is plainly belied by the governing law.

                                             -6-
      In sum, petitioner has failed to advance a meritorious challenge to the

validity of one of the grounds invoked for removal under § 1227(a)(2). Pursuant

to § 1252(a)(2)(C), we lack jurisdiction to review the removal order any further.

Finally, we note a recurrent theme in petitioner’s brief to the effect that he pled

guilty to the underlying state offense based on expectations about immigration

consequences that, as we have seen, have not been borne out. Any repercussions

with respect to his plea, however, are beyond the scope of our review.

      The petition for review is DISMISSED. Petitioner’s motion to proceed in

forma pauperis is GRANTED.

                                                     Entered for the Court


                                                     Michael W. McConnell
                                                     Circuit Judge




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