                               REVISED JULY 29, 2010
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                              FILED
                                                                              July 27, 2010

                                     No. 07-60445                            Lyle W. Cayce
                                   Summary Calendar                               Clerk


CHARLES EGBERT CLARKE, also known as Shawn Phillips, also known as
Charlie Charkes, also known as Charles Clark, also known as Sean C Phillips,
also known as Karl J Clarke, also known as Junior Davis, also known as Junior
Smith, also known as Charle Willmoe, also known as Rambo Gibbs, also known
as Junior Kojak, also known as Shan Phillips

                                                  Petitioner
v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                                  Respondent



                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A39 059 578


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
ON PETITION FOR REHEARING EN BANC
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-60445

      Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is GRANTED in part. Accordingly,
we WITHDRAW our previous opinion and replace it with the following opinion.
      Clarke petitioned this court for review of the decision of the Board of
Immigration Appeals (BIA) dismissing his appeal and affirming the immigration
judge’s (IJ) order finding him ineligible for cancellation of removal because he
had committed an aggravated felony; removable pursuant to 8 U.S.C.
§ 1227(a)(2)(B)(i) because he had been convicted of a controlled substance
violation; and removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he had
been convicted of an aggravated felony.
      In the now-withdrawn opinion, filed in December 2009, this panel relied
on Carachuri-Rosendo v. Holder, 570 F.3d 263, 266-68 (5th Cir. 2009), and held
that the BIA did not err in finding Clarke committed an aggravated felony based
upon his 2006 conviction in New York of criminal possession of crack cocaine in
the seventh degree after he had been convicted in New York in 1995 of criminal
possession of cocaine in the seventh degree. On June 14, 2010, the Supreme
Court unanimously reversed our decision in Carachuri-Rosendo. Carachuri-
Rosendo v. Holder, No. 09-60, 2010 U.S. LEXIS 4764, 560 U.S. ____ (June 14,
2010), rejecting this court’s “hypothetical approach” and holding that “the
defendant must also have been actually convicted of a crime that is itself
punishable as a felony under federal law.” Id. at *32, *35.
      Carachuri-Rosendo, however, does not carry the day for Clarke, because
the BIA found Clarke removable as an aggravated felon, and thus ineligible for
cancellation of removal, for two independent reasons. Although we had no reason
to address the Board’s alternate finding in our earlier opinion, Clarke was also
convicted in 1991 for attempted criminal sale of cocaine in the third degree, in
violation of §§ 110 and 220.39(1) of the N.Y. PENAL LAW. “To qualify as an
‘aggravated felony’ under the [Immigration and Nationality Act (INA)], the


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conduct prohibited by state law must be punishable as a felony under federal
law.”1 Carachuri-Rosendo, 2010 U.S. LEXIS 4764, at *35 (citing Lopez v.
Gonzales, 549 U.S. 47, 60 (2006)). The BIA properly found that Clarke’s
conviction for attempted criminal sale of cocaine encompassed conduct
punishable as a felony under the Controlled Substances Act (CSA), 21 U.S.C.
§§841(a)(1) and 846, attempted possession of cocaine with intent to distribute.
       A recent panel of this court stated that “we have found that a violation of
[N.Y. PENAL LAW] § 220.39 for criminal sale of controlled substances in the third
degree does not constitute a drug trafficking crime under the [United States
Sentencing Guidelines]” because statutes that punish “offers to sell” are not drug
trafficking crimes under the CSA. Davila v. Holder, No. 08-60530, 2010 U.S.
App. LEXIS 12230, at *5 (5th Cir. June 15, 2010) (unpublished) (citing United
States v. Stanley, 281 F. App’x 370, 372 (5th Cir. 2008) (unpublished)).2 Stanley,
however, actually held that “a conviction under New York Penal Statute
§ 220.39, based on the text of the statute alone, is not a conviction for a drug
trafficking offense.” Stanley, 281 F. App’x at 372 (emphasis added). Using the
method approved by the Supreme Court in Shepard v. United States, 544 U.S.
13, 16 (2005), the court in Stanley looked to the charging instrument and to “the
law of the jurisdiction in which the guilty plea was entered” to determine
whether the defendant was subject to a sentencing enhancement under the
categorical approach. Id. Under New York law, a guilty plea “constitutes an



       1
         We note that under 8 U.S.C. § 1101(a)(43)(U), an attempt to commit any of the
offenses described therein is an aggravated felony.
       2
         We have previously held that because “the Guidelines definition of ‘controlled
substance offense’ is nearly identical to the definition of conduct defined as a felony under the
Controlled Substances Act,” Vasquez-Martinez v. Holder, 564 F.3d 712, 719 (5th Cir. 2009),
CSA cases may rely on determinations of drug trafficking crimes made in the sentencing
context. Davila, 2010 U.S. App. LEXIS at **5-6.
.

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effective judicial admission by a defendant that he committed the acts charged
in the accusatory instrument.” People v. Lee, 448 N.E.2d 1328, 1329 (N.Y. 1983).
      Stanley noted that while the statutory definition of “to sell” contained in
§ 220.39 encompassed an “offer to sell,” see N.Y. PENAL LAW § 220.00(1),
Stanley’s indictment alleged that she committed “a violation of § 220.39[1] ‘as
follows.’ The indictment alleges that she ‘sold . . . cocaine.’” Stanley, 281 F. App’x
at 373. “When determining whether a prior offense is a drug-trafficking offense,
the court may also consider documents such as the charging instrument and the
jury instructions.” United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007)
(per curiam). In United States v. Gutierrez-Ramirez, we stated that we could not
use an indictment to narrow the offense of conviction where “the indictment
merely tracks the language of the statute, and includes language relating to
conduct that would not qualify as a ‘drug trafficking offense.’” 405 F.3d 352, 359
(5th Cir. 2005). In Stanley, however, the indictment alleged that Stanley
“knowingly and unlawfully sold” cocaine, “conduct which falls within the
definition of ‘drug trafficking offense.’” Stanley, 281 F. App’x at 373. The court
rejected Stanley’s contention that it should “interpret [the word] ‘sold’ in her
indictment to encompass all of the alternative definitions provided in §
220.00(1), including ‘offer to sell.’” Id. Giving the term “to sell” as it is used
within the statutory definition of “sell” its ordinary meaning, the court concluded
that the district court had not committed plain error when it determined
Stanley’s § 220.39 conviction was a drug trafficking offense.
      The record is sufficient to establish that Clarke’s conviction under N.Y.
PENAL LAW § 220.39 is a drug trafficking crime under the CSA. The record
indicates Clarke pleaded guilty to § 220.39. Under New York law, this plea
constitutes a judicial admission of commission of the acts charged in the
indictment. Lee, 448 N.E.2d at 1329. Because a violation of § 220.39 may
encompass conduct that does not qualify as a drug trafficking crime under the


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CSA, we consider Clarke’s indictment. The language in Clarke’s indictment is
virtually indistinguishable from the indictment discussed in Stanley. It accuses
Clarke of the crime of criminal sale of a controlled substance in the third degree
(§ 220.39) “as follows: The defendants, each aiding the other, on or about March
20, 1989, in the County of Kings, knowingly and unlawfully sold a narcotic drug,
namely: cocaine, to a person known to the grand jury.” As in Stanley, Clarke’s
indictment does not merely track the language of the statute—it alleges he “sold”
cocaine to another individual. Like the panel in Stanley, we accord the word
“sold” its ordinary meaning and conclude that the record establishes Clarke’s
§ 220.39 conviction was not for an “offer to sell,” and that it therefore constitutes
a drug trafficking crime under the CSA. Cf. Davila, 2010 U.S. App. LEXIS at *7
(“In this case, examining these documents does not reveal anything about the
nature of Davila’s ‘sale,’ because the indictment merely tracks the language of
the statute. Thus, the record fails to establish that Davila’s conviction under
N.Y. PENAL LAW § 220.41 was not merely for an offer to sell.”).
      The Supreme Court’s decision in Carachuri-Rosendo did not disturb our
other conclusions. We recount them here. Clarke’s claims that several due
process violations occurred with respect to his removal proceedings were not
exhausted before the BIA, and we therefore lack jurisdiction to consider them.
See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam). Clarke also
previously filed a petition for review (PFR) of the BIA’s denial of his motion for
reconsideration, raising arguments identical to arguments raised with respect
to Clarke’s PFR from the BIA’s dismissal of his appeal. Accordingly, Clarke’s
PFR from the denial of his motion for reconsideration lacks merit for the same
reasons stated above. The Government also moved to dismiss Clarke’s PFR from
the denial of his motion for reconsideration.
      For the reasons stated above, Clarke’s PFR from the dismissal of his
appeal is DENIED, his PFR from the denial of his motion for reconsideration is


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DENIED, and the Government’s motion to dismiss is DENIED as unnecessary.
All other motions pending before this court are DENIED.




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