                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 11-1640


YANNICK TOURE,

                 Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   December 13, 2011               Decided:   January 5, 2012


Before KING, WYNN, and DIAZ, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Jason L. Pope, BERLIN & ASSOCIATES, P.A., Baltimore, Maryland,
for Petitioner.     Tony West, Assistant Attorney General, M.
Jocelyn Lopez Wright, Senior Litigation Counsel, Kelly J. Walls,
Trial Attorney, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Yannick       Toure,    a     native      and   citizen       of     France,

petitions for review of an order of the Board of Immigration

Appeals   (“Board”)          dismissing      his    appeal     from    the   immigration

judge’s order finding Toure was removable for having committed

an aggravated felony and determining he was not eligible for

relief    from       removal.          Toure       contends     that     his        Maryland

conviction      for    conspiracy       to    distribute       marijuana       is    not    an

aggravated felony because it is not a drug trafficking crime

under    the    Controlled       Substances        Act    (“CSA”).        We       deny    the

petition for review.

               Under     8   U.S.C.     § 1252(a)(2)(C)         (2006),      this      court

lacks jurisdiction to review any final order of removal against

an alien who is removable for having committed an aggravated

felony or       a   controlled        substance     violation.         See     8    U.S.C.A.

§ 1227(a)(2)(A)(iii), (B)(i) (West 2005 & Supp. 2011).                              However,

the court retains jurisdiction to ascertain whether in fact the

petitioner is an alien and that he has been convicted of a

relevant offense.            See Argaw v. Ashcroft, 395 F.3d 521, 524 (4th

Cir. 2005).         In addition, the jurisdictional bar set forth above

does not apply to questions of law and constitutional claims.

See 8 U.S.C. § 1252(a)(2)(D).                 This court does not defer to the

Board’s    determination          that       a     particular     state        conviction

qualifies as an aggravated felony.                    See Argaw, 395 F.3d at 524.

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Toure’s claim that his marijuana conspiracy conviction is not an

aggravated felony is a question of law.

              Under         INA           § 237(a)(2)(A)(iii),                8         U.S.C.A.

§ 1227(a)(2)(A)(iii),             an      alien       is   removable    for       having      been

convicted of an aggravated felony at any time after admission.

Under   INA       § 101(a)(43)(B),          8     U.S.C.A.      § 1101(a)(43)(B)              (West

2005    &   Supp.     2011),         an   aggravated         felony    includes         “illicit

trafficking in a controlled substance . . . including a drug

trafficking crime (as defined in section 924(c) of Title 18)[.]”

In addition, a conviction for a conspiracy to commit a drug

trafficking        crime    is       also    an       aggravated      felony.           See     INA

§ 101(a)(43)(U); 8 U.S.C.A. § 1101(a)(43)(U).

              A     “[d]rug          trafficking           crime”     means       any     felony

punishable under the CSA.                    See 18 U.S.C. § 924(c)(2) (2006);

Lopez v. Gonzales, 549 U.S. 47, 53 (2006).                             “[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, 549 U.S. at 60.                Thus, a misdemeanor

state drug offense may be considered a drug trafficking crime if

the    same       crime    is    a     felony     under       the   CSA.          21    U.S.C.A.

§ 841(a)(1) (West 1999 & Supp. 2011) of the CSA provides that it

is unlawful “knowingly or intentionally . . . to manufacture,

distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance[.]”                                    Under the

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federal     statute,       distribution         or        possession      with      intent    to

distribute up to fifty kilograms of marijuana is punishable by

up    to   five   years’       imprisonment,          which      renders    the     offense    a

felony.      See 21 U.S.C.A. § 841(b)(1)(D); Lopez, 549 U.S. at 56

n.7    (under     the   CSA,     felonies       are       those    crimes      to    which    it

assigns      a     punishment          exceeding           one     year       imprisonment).

Likewise, a conspiracy to commit the same offense carries the

same penalties.         See 21 U.S.C. § 846 (2006).

             Toure’s       arguments       are        without      merit.           His     state

conviction        for    conspiracy        to        distribute        marijuana          clearly

constitutes a felony punishable under the CSA and is thus an

aggravated felony.             See, e.g., Garcia v. Holder, 638 F.3d 511,

515-16 (6th Cir. 2011)                  Because Toure was properly found to

have been convicted of an aggravated felony, he is not eligible

for relief from removal.               See 8 U.S.C. § 1229b(a)(2006).

             Accordingly,         we    deny        the    petition     for    review.         We

dispense     with       oral     argument       because          the   facts        and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                           PETITION DENIED




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