                                                                          FILED
                              NOT FOR PUBLICATION *                        JUL 26 2011

                                                                       MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                   U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT

                                                    No. 09-72449
    CHUNG WEI HAM,
                                                    Agency No. A043-125-309
              Petitioner,
     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 May 6, 2011
                                  Pasadena, California

Before: NOONAN and PAEZ, Circuit Judges, and KORMAN, Senior District Judge.**


          Chung Wei Ham, a native and citizen of Taiwan, petitions for review of the

Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an

immigration judge’s order denying him a waiver of inadmissibility based on his


*
  This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
   The Honorable Edward R. Korman, Senior District Judge for the U.S. District
Court for Eastern New York, Brooklyn, sitting by designation.

                                            1
aggravated felony conviction. We have jurisdiction pursuant to 8 U.S.C. § 1252. We

review de novo “[w]hether an offense is an aggravated felony under 8 U.S.C. §

1101(a) . . . .” Martinez-Perez v. Gonzales, 417 F.3d 1022, 1025 (9th Cir. 2005).

      Ham challenges the BIA’s finding that his conviction for knowingly possessing

for sale articles bearing a counterfeit mark, in violation of Cal. Penal Code §

350(d)(3), constitutes an aggravated felony. 8 U.S.C. § 1101(a)(43)(R); see 8 U.S.C.

§ 1182(h). Ham claims that the definition of the term “spurious mark” in Cal. Penal

Code § 350 regulates activities outside the core counterfeiting offense. While the

felony complaint alleges that Ham committed his crimes before the “spurious mark”

definition became effective, Ham maintains that the categorical approach of Taylor

v. United States, 495 U.S. 575 (1990), precludes us from “conclud[ing] that [he]

committed the offense . . . prior to the . . . legislative amendment[] . . . and [that we

therefore] cannot assume that [the] state court applied . . . [the unamended] statutory

scheme.” Pet’r Reply Br. at 5-6. We disagree.

      The categorical approach “is driven . . . by a policy to ‘avoid ad-hoc mini-

trials,” United States v. Piccolo, 441 F.3d 1084, 1087 (9th Cir. 2006), on whether a

defendant’s conduct “‘was less or more culpable than what his actual conviction

required.’” Garcia v. Holder, 638 F.3d 511, 517 (6th Cir. 2011) (quoting Martinez

v. Mukasey, 551 F.3d 113, 121 (2d Cir. 2008)). Here, we do not look beyond the



                                           2
judgment of conviction to determine whether Ham’s conduct independently

constitutes an aggravated felony.        Instead, we merely reference the charging

documents and minute entries to determine which version of Cal. Penal Code § 350

governed Ham’s conviction. Because this examination does not focus on Ham’s

conduct, the categorical approach does not preclude our inquiry.

       As charged in the felony complaint, the activities underlying Ham’s conviction

occurred between January 1, 1996 and April 20, 1998. A minute entry preceding his

sentencing also indicates that the offense took place “on or about” January 1, 1996.

At the earliest, the statutory definition of the term “spurious mark” became effective

on September 13, 1998. 1998 Cal. ALS 454. Consequently, the definition of

“spurious mark” could not have governed Ham’s conviction, because the actions

underlying his offense occurred before the effective date of the statutory amendment.

See Cal. Penal Code § 3 (“No part of [the California Penal Code] is retroactive, unless

expressly . . . declared.”); see also Strauss v. Horton, 207 P.3d 48, 119 (Cal. 2009)

(“‘It is a widely recognized legal principal [in California] . . . that in the absence of a

clear legislative intent to the contrary statutory enactments apply prospectively.’”

(quoting Evangelatos v. Superior Court, 753 P.2d 585, 587 (Cal. 1988))); In re E.J.,

223 P.3d 31, 39 (Cal. 2010) (“[S]ection 3 [of the California Penal Code] reflects the

common understanding that legislative provisions are presumed to operate



                                            3
prospectively, and they should be so interpreted unless express language or clear and

unavoidable implication negatives the presumption.”) (internal quotations omitted).

Ham’s argument that “new rules in criminal cases apply ‘to . . . proceeding[s] which,

at the time of the supervening legislation, ha[ve] not yet reach[ed] final disposition .

. . ,” Pet’r Reply Br. at 6 (quoting People v. Nasalga, 12 Cal. 4th 784, 785 n.5 (Cal.

1996) (internal quotations and citation omitted), is unavailing. The principle only

applies to statutory amendments when they “mitigate[] punishment.” Nasalga, 12

Cal. 4th at 797. Consequently, the definition of the term “spurious mark” did not

apply to Ham’s conviction.

      We quickly dispose of Ham’s remaining argument that Cal. Penal Code § 350

does not incorporate an intent to defraud as an essential element of the offense for the

reasons articulated in Rodriguez-Valencia v. Holder, No. 09-72060, --- F.3d ----, 2011

WL 2899605, at *2 (9th Cir. July 21, 2011).

      The petition for review is DENIED.




                                           4
