           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 8, 2009

                                      No. 08-60279                    Charles R. Fulbruge III
                                      A35 815 164                             Clerk



Gregorio MONTOYA

                                                  Petitioner
v.

Eric H. HOLDER, Jr., U.S. Attorney General

                                                  Respondent




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


Before GARWOOD, OWEN, and HAYNES, Circuit Judges.
GARWOOD, Circuit Judge:*
       Gregorio Montoya (Montoya) petitions for review of the Board of
Immigration Appeals’ (BIA) decision dismissing his appeal from the Immigration
Judge’s (IJ) decision finding him removable and denying his motion to remand.
For the following reasons, we DENY the Petition for Review.
                     FACTS AND PROCEEDINGS BELOW
       In 2004, Montoya, a native of Mexico and lawful permanent resident of the
United States, was convicted following a guilty plea in a Texas state court for

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR . R. 47.5.4.
“possession with intent to deliver a controlled substance of four grams or more,
but less than 200 grams, namely: cocaine” in violation of Texas Health and
Safety Code § 481.112(a). Montoya was later charged with removability under
8 U.S.C. § 1227(a)(2)(A)(iii) for being convicted of an “aggravated felony” as
defined in 8 U.S.C. § 1101(a)(43)(B). When Montoya appeared before the IJ, he
admitted to the Texas conviction and conceded removability. Further, Montoya
conceded that he was ineligible for cancellation of removal because he had been
convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3). The IJ ordered
Montoya removed to Mexico.
      On October 17, 2006, Montoya appealed his order of removal to the BIA
under the then-pending Supreme Court case of Lopez v. Gonzales,1 which
Montoya argued might offer him relief. For the first time on appeal, Montoya
argued that his Texas conviction was not an aggravated felony under the
Immigration and Nationality Act (INA). On December 5, 2006, the Court issued
its decision in Lopez, holding that, in order to constitute an aggravated felony for
immigration purposes, a state drug conviction must either be punishable as a
federal felony under the Controlled Substances Act (CSA) or fall within the
general term “illicit trafficking.” 127 S.Ct. 625, 630–33 (2006). On April 2, 2007,
Montoya filed a motion with the BIA to remand his case to the IJ in light of
Lopez. The BIA found that Montoya’s conviction was an aggravated felony even
under Lopez and that Montoya had failed to demonstrate that he was eligible for
relief from removal. See 8 U.S.C. § 1229a(c)(4)(A)(i). Accordingly, the BIA
dismissed Montoya’s appeal and denied his motion to remand. Montoya timely
filed this petition for review.
                 JURISDICTION AND STANDARD OF REVIEW


      1
          This opinion was later published at 127 S.Ct. 625 (2006).

                                               2
      Pursuant to 8 U.S.C. § 1252(a)(2)(C), this court is generally precluded from
reviewing a final order of removal based upon an aggravated felony. Arce-Vences
v. Mukasey, 512 F.3d 167, 170 (5th Cir. 2007). However, this jurisdictional bar
does not apply to the “review of constitutional claims or questions of law raised
upon a petition for review with an appropriate court of appeals.” 8 U.S.C. §
1252(a)(2)(D). Whether an alien’s prior conviction constitutes an aggravated
felony under 8 U.S.C. § 1101 is a question of law, therefore we have jurisdiction.
See Arce-Vences, 512 F.3d at 170. We review this question of law de novo.
Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005).
                                  DISCUSSION
      An alien convicted of an “aggravated felony” as defined in the INA is
removable    and   ineligible   for   cancellation   of removal.     8   U.S.C. §§
1227(a)(2)(A)(iii), 1229b(a)(3). The INA defines the term “aggravated felony” to
include “illicit trafficking in a controlled substance . . . including a drug
trafficking crime (as defined in section 924(c) of Title 18).” Id. § 1101(a)(43)(B).
“Drug trafficking crime” is defined as “any felony punishable under the [CSA]
(21 U.S.C. § 801 et. seq.).” 18 U.S.C. § 924(c)(2). In Lopez, the Supreme Court
held that “a state offense constitutes a ‘felony punishable under the [CSA]’ only
if it proscribes conduct punishable as a felony under that federal law.” 127 S.Ct.
at 633.
      Montoya argues that because the Texas crime of possession with intent to
deliver encompasses conduct broader than the federal crime of possession with
intent to distribute, his Texas conviction should not be considered an aggravated
felony preventing him from seeking relief from removal. Montoya was convicted
under Texas Health and Safety Code § 481.112(a), which provides that “a person
commits an offense if the person knowingly manufactures, delivers, or possesses
with intent to deliver a controlled substance listed in Penalty Group 1.” Cocaine

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is a controlled substance listed in Penalty Group 1. T EX. H EALTH AND S AFETY
C ODE A NN. § 481.102(3)(D). “Deliver” is defined in relevant part as “to transfer,
actually or constructively, to another a controlled substance . . . [and] includes
offering to sell a controlled substance.”     Id. § 481.002(8) (emphasis added).
Similarly, the CSA makes it “unlawful for any person knowingly or intentionally
. . . to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.”         21 U.S.C. §
841(a)(1). The CSA defines “distribute” as “to deliver . . . a controlled substance,”
and it further defines the terms “deliver” or “delivery” as “the actual,
constructive, or attempted transfer of a controlled substance.” Id. §§ 802(11),
802(8). Even absent prior drug convictions, possession with intent to distribute
a schedule II controlled substance, such as cocaine, is a federal felony punishable
by a term of imprisonment of up to twenty years. Id. §§ 841(b)(1)(C), 812(c).
      Montoya contends that, because the CSA does not include offering to sell
in its definition of “distribute,” the Texas crime of possession with intent to
deliver is broader than the federal crime of possession with intent to distribute.
Thus, Montoya asserts that his Texas conviction should not be construed as a
“drug trafficking crime” as defined in 18 U.S.C. § 924(c) and therefore an
aggravated felony under the INA. In support, Montoya relies on our decision in
United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007). In Gonzales, we held
that the Texas crime of delivery of a controlled substance was not the equivalent
of a “drug trafficking offense” as defined in the United States Sentencing
Guidelines (U.S.S.G. or Guidelines), because the Texas offense encompassed
offering to sell whereas the U.S.S.G. definition did not. 484 F.3d at 714–16
(citing United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005)). At the
time, the Guidelines defined a “drug trafficking offense” as “an offense under
federal, state, or local law that prohibits the manufacture, import, export,

                                         4
distribution, or dispensing of a controlled substance . . . or the possession of a
controlled substance . . . with intent to manufacture, import, export, distribute,
or dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2004).2 Employing the categorical
approach adopted by the Supreme Court in Taylor v. United States, 110 S.Ct.
2143 (1990), we determined that the defendant could have been convicted under
Texas Health and Safety Code § 481.112(a) for activity that would not have been
a drug trafficking offense under the U.S.S.G. Id. at 714–15. Therefore, we held
that the district court committed error in concluding that the defendant’s Texas
conviction was a drug trafficking offense under the Guidelines. Id. at 716.
Montoya argues that our analysis in Gonzales comparing the Texas crime of
delivery of a controlled substance to the U.S.S.G.’s definition of a “drug
trafficking offense” should apply with equal force in the immigration context for
the purpose of determining whether his conviction for possession with intent to
deliver under the same Texas statute constitutes a “drug trafficking crime”
under the CSA.
       This argument is foreclosed by our recent decision in Vasquez-Martinez v.
Holder. See — F.3d —, 2009 WL 866195, at *4–5 (5th Cir. Apr. 2, 2009). Just
as here, the petitioner in Vasquez-Martinez was found ineligible for cancellation
of removal due to his conviction for possession with intent to deliver cocaine
under Texas Health and Safety Code § 481.112(a).                Id. at *1.   On appeal,
Vasquez-Martinez advanced almost exactly the same argument as the one now
urged by Montoya. See id. at *4. After acknowledging this court’s holding in




       2
         Effective November 1, 2008, Congress amended this definition to clarify that an
“offer to sell” a controlled substance is a drug trafficking offense under the U.S.S.G.,
presumably in response to judicial decisions such as Gonzales. See U.S.S.G. § 2L1.2 Hist.
Note (2008).

                                            5
Gonzales,3 the Vasquez-Martinez court nonetheless concluded that our decision
in United States v. Ford, 509 F.3d 714 (5th Cir. 2007), was controlling. Id. at
*4–5.
        In Ford, we held that a conviction for possession with intent to deliver a
controlled substance under Texas Health and Safety Code § 481.112(a) was the
equivalent of a “controlled substance offense” for the purposes of sentencing
enhancement under the U.S.S.G. 509 F.3d at 717. Although the Ford court
recognized that the U.S.S.G. definitions of “controlled substance offense” and
“drug trafficking crime” were nearly identical,4 the court declined to follow our
decision in Gonzales. 509 F.3d at 716–17. Instead, the Ford court distinguished
that case on the basis that the conviction in Gonzales was for delivery, whereas
the conviction in Ford was for possession with intent to deliver. 509 F.3d at 717.
Ultimately, the Ford court concluded that “it is pure sophistry to distinguish
between the conduct of one who possesses drugs with intent to deliver those
drugs and one who possesses drugs with intent to distribute them.”                      Id.
Therefore, we upheld the sentence enhancement for what we determined was a
controlled substance offense under the Guidelines. Id.
        In Vasquez-Martinez, we concluded that our sentencing cases addressing
the interplay between state and federal definitions of drug offenses should also
control in the immigration context. See 2009 WL 866195, at *4–5. However, we
chose to follow Ford and not Gonzales, because, like the petitioner in Ford,
Vasquez-Martinez was convicted of possession with intent to deliver and not


        3
       The Vasquez-Martinez court also considered our decision in United States v.
Morales-Martinez, 496 F.3d 356, 358–60 (5th Cir. 2007), which, like Gonzales, found that a
Texas conviction for delivery of a controlled substance was not a drug trafficking offense
under the Guidelines. 2009 WL 866195, at *4–5.
        4
            Compare U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2004) with U.S.S.G. § 4B1.2(b).

                                                 6
delivery. See id. Thus, we held that possession with intent to deliver under
Texas Health and Safety Code § 481.112(a) is the equivalent of possession with
intent to distribute under the CSA. Id. Further, because possession with intent
to distribute cocaine is punishable as a federal felony under the CSA, we
determined that the BIA did not err in concluding that Vasquez-Martinez was
ineligible for cancellation of removal. Id. at *5.
                                CONCLUSION
      We find this court’s conclusion in Ford that possession with intent to
deliver is the equivalent of possession with intent to distribute to be eminently
reasonable. See 509 F.3d at 717. More importantly, we are bound by this court’s
decision in Vasquez-Martinez, which specifically applied Ford to find that a
conviction for possession with intent to deliver under Texas Health and Safety
Code § 481.112(a) is the equivalent of possession with to distribute under the
CSA. See 2009 WL 866195, at *5. Of these above cited decisions of our court,
only Vasquez-Martinez is an immigration case. As a result, because the Texas
crime of possession with intent to deliver cocaine is punishable as a federal
felony under the CSA, it is a “drug trafficking crime” as defined in 18 U.S.C. §
924(c) and is therefore an aggravated felony under the INA. As such, the BIA
correctly concluded that Montoya was ineligible for cancellation of removal
under 8 U.S.C. § 1229b(a)(3). The BIA did not err in dismissing Montoya’s
appeal and denying his motion to remand.
      Therefore, we DENY the Petition for Review.




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