                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2007

Jeune v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-3103




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PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                      Case No: 05-3103

                   JEAN JUNIOR JEUNE,

                              Petitioner

                                 v.

     ATTORNEY GENERAL OF THE UNITED STATES,

                             Respondent

      On Petition for Review of Final Decision of the
               Board of Immigration Appeals
                  BIA No.: A37-089-885
       Immigration Judge: Donald Vincent Ferlise

     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   December 11, 2006

          Before: SMITH and ROTH, Circuit Judges,
                 and IRENAS, District Judge*


      *
        The Honorable Joseph E. Irenas, Senior District Judge
for the United States District of New Jersey, sitting by
designation.

                             1
                  (Filed: February 20, 2007)


                           OPINION


SMITH, Circuit Judge.

       The instant appeal raises a discrete issue: whether a
conviction under 35 PA. CONS. STAT. ANN. § 780-113(a)(30)
(“[M]anufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance”), without any
additional facts, constitutes an “aggravated felony” under the
Immigration and Nationality Act (“INA”). See 8 U.S.C. §
1227(a)(2)(A)(iii). It cannot. To hold otherwise would be
inconsistent with our recent holding in Garcia v. Attorney
General of the United States, 462 F.3d 287 (3d Cir. 2006), that
a violation of 35 PA. CONS. STAT. ANN. § 780-113(a)(30) is not
categorically an aggravated felony.

              I. Facts and Procedural History

        Jean Jeune (“Jeune”) filed a petition for a writ of habeas
corpus and stay of removal with the United States District Court
for the Eastern District of Pennsylvania, asking for review of the
lawfulness of the final order of removal ordered against him by
the Board of Immigration Appeals (“BIA”). Congress
subsequently eliminated district court jurisdiction over habeas
petitions filed by aliens concerning removal orders. See 8

                                2
U.S.C. § 1252(a)(5). Jeune’s habeas petition was converted to
a petition for review by this Court.

        Jeune is a native and citizen of Haiti. He entered the
United States as a lawful permanent resident on September 7,
1980, at the age of eleven. Jeune was arrested on February 20,
1996 for possession of marijuana and charged with one count of
violating 35 PA. CONS. STAT. ANN. § 780-113(a)(30). The
statute states, in relevant part:

       a) The following acts and the causing thereof
       within the Commonwealth are hereby prohibited:

                             ***

       (30) Except as authorized by this act, the
       manufacture, delivery, or possession with intent
       to manufacture or deliver, a controlled substance
       by a person not registered under this act, or a
       practitioner not registered or licensed by the
       appropriate State board, or knowingly creating,
       delivering or possessing with intent to deliver, a
       counterfeit controlled substance.

Id. Jeune pled guilty and was sentenced to five years probation.

       On February 21, 2002, he was charged with being subject
to removal under INA § 237(a)(2)(A)(iii) for committing an
“aggravated felony” of “illicit trafficking in a controlled
substance,” and under INA § 237(a)(2)(B)(i) for violating “any

                               3
law . . . relating to a controlled substance.” See 8 U.S.C. §
1227(a)(2)(A)(iii), (a)(2)(B)(i). These charges followed from
his conviction under 35 PA. CONS. STAT. ANN. § 780-113(a)(30).
The Immigration Judge (“IJ”) found that Jeune’s conviction
constituted an aggravated felony and therefore prevented him
from applying for discretionary relief from removal. The IJ
ordered Jeune removed from the United States. The BIA
affirmed.

                         II. Discussion

       We have jurisdiction over Jeune’s petition for review
pursuant to 8 U.S.C. § 1252(a)(2)(D). See Ng v. Att’y Gen., 436
F.3d 392, 394 (3d Cir. 2006) (noting that our jurisdiction
extends to “questions of law raised upon a petition for review,”
including petitions for review of removal orders based on
aggravated felony convictions). We exercise plenary review
over Jeune’s legal argument that he was not convicted of an
aggravated felony. See Tran v. Gonzales, 414 F.3d 464, 467 (3d
Cir. 2005).

        Jeune contends that the IJ erred by holding that Jeune had
committed an aggravated felony within the meaning of the INA
§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B). The Government
argues that we are bound by this Court’s decision in Garcia v.
Attorney General of the United States, 462 F.3d 287 (3d Cir.
2006). Though the Government is correct, we suspect that our
fidelity to Garcia will be cold comfort to them. Garcia dictates


                                4
that the practically non-existent record in this case cannot
support an aggravated felony determination. We will reverse
the BIA and remand for further proceedings consistent with this
opinion.

        Aliens who have been convicted of an aggravated felony
are ineligible for discretionary relief from an order of removal.
See 8 U.S.C. § 1158(b)(2)(A)(ii) (asylum); 8 U.S.C. §
1229(a)(3) (cancellation of removal); 8 U.S.C. §
1231(b)(3)(B)(ii) (withholding of removal). The INA defines an
aggravated felony as “illicit trafficking in a controlled substance
(as defined in section 802 of Title 21), including a drug
trafficking crime (as defined in section 924(c) of Title 18).” 8
U.S.C. § 1101(a)(43)(B).

       We set out the framework for determining whether an
offense is an aggravated felony in Gerbier v. Holmes, 280 F.3d
297, 313 (3d Cir. 2002). We held that there are two routes by
which an offense may qualify as an aggravated felony. Id.
Under the first route, the illicit trafficking approach, the state
conviction is an aggravated felony if it is a felony under state
law and contains a “trafficking element.” Id. Under the second
route, the hypothetical federal felony approach, the state
conviction is an aggravated felony if it would qualify as a felony
under the Federal Controlled Substances Act. Id. at 299.

      We elaborated in Singh v. Ashcroft, 383 F.3d 144 (3d Cir.
2004), that we should presumptively apply the “formal


                                5
categorical approach” when making the Gerbier determination.
Id. at 147 (citing Taylor v. United States, 495 U.S. 575, 600
(1990)). Under this approach, we “must look only to the
statutory definitions of the prior offenses, and may not consider
other evidence concerning the defendant’s prior crimes,
including, the particular facts underlying [a] conviction[ ].”
Singh, 383 F.3d at 147-48 (internal quotes omitted).

       However, some statutes may require departure from the
formal categorical approach. Id. at 162. The “statute of
conviction” invites departure when it is phrased in the
disjunctive such that it is unclear from the face of the statute
whether the conviction was an aggravated felony. Id. (“Where
some variations meet the aggravated-felony requisites and others
do not, we have . . . allowed further inquiry to see which
variation was actually committed.”). We held in Garcia that 35
PA. CONS. STAT. ANN. § 780-113(a)(30) “is disjunctive, and
therefore departure from the formal categorical approach is
appropriate.” 462 F.3d at 293.




              A. The Illicit Trafficking Route

        In Garcia, we recognized that a conviction under 35 PA.
CONS. STAT. ANN. § 780-113(a)(30) is a felony under state law
and, therefore, constitutes an aggravated felony if it contains a
“trafficking element.” See Garcia, 462 F.3d at 293. As 35 PA.


                               6
CONS. STAT. ANN. § 780-113(a)(30) is not categorically clear as
to whether trafficking is an element of the offense, we look to
the facts of the conviction. Garcia, 462 F.3d at 293. To contain
a trafficking element, a state felony must involve “the unlawful
trading or dealing of a controlled substance.” Gerbier, 280 F.3d
at 305.

        In Garcia, we looked to the charging instrument to
determine whether the conviction contained a trafficking
element. 462 F.3d at 292-293. We may look only to the records
of the state conviction to establish the facts of the underlying
conviction. Singh, 383 F.3d at 162-63. Unfortunately, the
appellate record contains only three documents relating to the
state conviction; the charging instrument, the sentence, and the
certificate of probation. None of these documents shed any light
on the facts of the conviction. Neither counsel has aided our
inquiry. The record indicates only that Jeune was sentenced to
five years probation, court costs, and $6,600 in restitution to
“Donald Lee, Comcast Cellular Communication Corp.” This
record’s vagueness distinguishes the instant case from Garcia,
where the charging instrument related that “the defendant
unlawfully sold and delivered a controlled substance, to wit,
marijuana to an undercover police officer, and at a latter time on
the same date the [defendant] possessed an additional 38 packets
of marijuana [] in a quantity and under circumstances indicating
intent to deliver.” 462 F.3d at 293.

       The Garcia panel concluded that, “it is clear from the


                                7
criminal complaint that Garcia pled guilty to delivery and
possession with the intent to deliver.” Id. The Garcia panel
stated:

       In Gerbier, we noted that “distribution,
       solicitation, [and] possession with intent to
       distribute” suggest trading or dealing in a
       controlled substance. Since Garcia pled guilty to
       delivery and possession with the intent to deliver,
       the Pennsylvania equivalent of distribution and
       possession with the intent to distribute, his
       conviction indicates that he was trading or dealing
       in a controlled substance. Moreover, the criminal
       complaint clearly establishes that Garcia did in
       fact sell drugs to an undercover officer. For these
       reasons, we conclude that Garcia’s Pennsylvania
       drug conviction is an aggravated felony under the
       illicit trafficking route of Gerbier.

Id. (internal citations omitted). The record before us reveals no
such specificity.

      The charging instrument indicates that, after Jeune’s
conviction, “the Commonwealth will proceed under 18 PA.
CONS. STAT. ANN. § 7508 (concerning drug trafficking
sentencing and penalties) and seek imposition of a sentence in
accordance.” The Government contends that we may conclude
based solely on this information that Jeune committed an
aggravated felony.


                               8
       The Government asks us to rest our decision on this
slender reed.1 It cannot support the IJ’s decision. The
Government’s argument is superficially plausible. The very title
of the sentencing provision indicates that 18 PA. CONS. STAT.
ANN. § 7508 “concern[s] drug trafficking.” However, this
sentencing provision is mandatory for convictions under 35 PA.
CONS. STAT. ANN. § 780-113(a)(30). 18 PA. CONS. STAT. ANN.
§ 7508(c). The sentencing provision states, in relevant part,
that:

       (a) General rule.--Notwithstanding any other
       provisions of this or any other act to the contrary,
       the following provisions shall apply:

              (1) A person who is convicted of
              violating section 13(a)(14), (30) or
              (37) of the act of April 14, 1972
              (P.L. 233, No. 64), known as The

       1
         The Government “has the burden of establishing by
clear and convincing evidence that, in the case of an alien who
has been admitted to the United States, the alien is deportable.”
8 U.S.C. § 1229a (“No decision on deportability shall be valid
unless it is based upon reasonable, substantial, and probative
evidence.”); see Cruz-Garza v. Ashcroft, 396 F.3d 1125, 1132
(10th Cir. 2005) (holding that the Government failed to meet its
burden of showing that a prior state conviction subjected a
resident alien to deportation “because the weakness of the
administrative record does not satisfy the stringent evidentiary
standard”).

                                9
             Controlled Substance, Drug,
             Device and Cosmetic Act, where
             the controlled substance is
             marijuana shall, upon conviction,
             be sentenced to a mandatory
             minimum term of imprisonment
             and a fine as set forth in this
             subsection:

             (i) when the amount of marijuana
             involved is at least two pounds, but
             less than ten pounds, or at least ten
             live plants but less than 21 live
             plants; one year in prison and a
             fine of $5,000 or such larger
             amount as is sufficient to exhaust
             the assets utilized in and the
             proceeds from the illegal activity;
             however, if at the time of
             sentencing the defendant has been
             convicted of another drug
             trafficking offense: two years in
             prison and a fine of $10,000 or
             such larger amount as is sufficient
             to exhaust the assets utilized in and
             the proceeds from the illegal
             activity.

18 PA. CONS. STAT. ANN. § 7508(a). The fact that the
prosecution intended to proceed under this sentencing provision
tells us no more than that Jeune was convicted under 35 PA.

                              10
CONS. STAT. ANN. § 780-113(a)(30). As the Garcia panel held
that 35 PA. CONS. STAT. ANN. § 780-113(a)(30) is not
categorically a trafficking offense, the Government’s argument
cannot stand. See 462 F.3d at 293. The Garcia holding and the
argument that sentencing under 18 PA. CONS. STAT. ANN. §
7508 alone establishes a trafficking element are mutually
incompatible.

       If we reject the Government’s argument on this point, we
have no information before us to establish a “trafficking
element” beyond the mere fact of the conviction. The
mandatory minimums in the sentencing provision indicate that
Jeune possessed less than two pounds of marijuana or fewer
than ten live plants. 18 PA. CONS. STAT. ANN. § 7508(a)(1)(i).
The absence of a fine “to exhaust the assets utilized in and the
proceeds from the illegal activity” suggests the absence of a
criminal enterprise (though the thin record leaves the basis of
the $6,600 restitution payment a mystery). See id. The sentence
of only probation suggests the possibility of a non-trafficking
offense. As the Garcia panel stated, a person convicted under
35 PA. CONS. STAT. ANN. § 780-113(a)(30) may have been
growing marijuana for personal use. 462 F.3d at 293, n.9.2

       2
           The Garcia panel observed:

       [T]he key is whether the provision is disjunctive
       in a relevant sense. Here, the Pennsylvania
       statute describes three distinct offenses:
       manufacture, delivery, and possession with the

                               11
       intent to deliver or manufacture. Based on the
       broad scope of section 13(a)(30), it appears that
       the section may encompass conduct that does not
       involve trading or dealing. In particular, it is not
       clear that every violation of the manufacturing
       provision involves trading or dealing. For
       example, there may be circumstances in which a
       defendant simply manufactured drugs for his own
       personal use. As a result, it is unclear from the
       face of the statute whether a conviction under the
       section automatically qualifies as an aggravated
       felony. Therefore, the statute is disjunctive in a
       relevant sense and departure from the categorical
       approach is appropriate. . . .

462 F.3d at 293, n.9 (emphasis added). In this footnote, the
Garcia Court specifically pointed to a source of ambiguity in 35
PA. CONS. STAT. ANN. § 780-113(a)(30), though not necessarily
the sole source. Id. Therefore, the charging statement does not
eliminate the relevant ambiguity by demonstrating that Jeune
“unlawfully manufactured, delivered, or possessed with intent
to deliver,” excluding the possession with intent to manufacture
offense included in the statute. The fact that the charging
instrument omits the intent to “manufacture or” from the
possession crime does not eliminate the ambiguity under
Garcia. Simply put, the first “manufacturing” crime is
ambiguous on its own. This is the most faithful interpretation of
Singh, 383 F.3d at 162. Specifically, Garcia recognizes that just
because “manufacturing” is not literally disjunctive does not
mean that it is unambiguous. Pursuant to Singh, the Garcia

                               12
Manufacturing marijuana for personal use would arguably not
be an aggravated felony. What we do know since Garcia is that
there are some offenses within the “broad scope” of 35 PA.
CONS. STAT. ANN. § 780-113(a)(30) that are not aggravated
felonies, and that something more than the bare fact of
conviction is required to reach that threshold. 462 F.3d at 293.
We lack that here.

        Moreover, this Court has indicated that we must assume
that Jeune’s conduct was only the minimum necessary to
comport with the statute and record. Partyka v. Att’y Gen. of
U.S., 417 F.3d 408, 411 (3d Cir. 2005) (“Under this categorical
approach, we read the applicable statute to ascertain the least
culpable conduct necessary to sustain a conviction under the
statute.”); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)
(“Because the state statute under which Wilson pled guilty does
not contain sale for remuneration as an element, we cannot
determine from the state court judgment that Wilson's
conviction necessarily entails a finding of remuneration.”);
Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (limiting
the inquiry to what the state court must necessarily have found).
To conform with these precedents, we must conclude that
Jeune’s conduct was the bare minimum necessary to trigger 35



panel focused on whether “some variations meet the
aggravated-felony requisites and others do not.” Id.
Manufacturing for others is an aggravated felony.
Manufacturing for one’s self is likely not.

                               13
PA. CONS. STAT. ANN. § 780-113(a)(30) and therefore does not
constitute an aggravated felony.

        B. The Hypothetical Federal Felony Route

       We held in Garcia that the defendant’s conviction was an
aggravated felony under the illicit trafficking route, and it was
therefore unnecessary for us proceed to the hypothetical federal
felony route. 462 F.3d at 293-94. The IJ’s examination of the
issue was cursory, stating only that Jeune’s conviction
constituted “a Class E felony under Title 18, U.S.C. 3559(a).”
However, as Jeune’s conviction does not, on the record before
us, constitute an aggravated felony under the illicit trafficking
route, we must proceed to the hypothetical federal felony route.

        We have held that New Jersey’s similar statute
“criminaliz[ing] possession of at least one ounce (and less than
five pounds) of marijuana with intent to manufacture, distribute,
or dispense it,” is analogous to 21 U.S.C. § 841(a)(1), “which
proscribes the identical conduct.” Wilson, 350 F.3d at 381. The
analogous statute to 35 PA. CONS. STAT. ANN. § 780-113(a)(30)
is also 21 U.S.C. § 841(a)(1).

       The instant case, however, presents a difficulty similar to
that which we faced in Wilson. 350 F.3d at 381. We observed
that:

       The matter is somewhat more complicated,
       however, because 21 U.S.C. §§ 841(b)(1)(D) and

                               14
       (b)(4) establish an exception. The exception
       provides that a person who violates Section
       841(a) “by distributing a small amount of
       marihuana for no remuneration” shall be punished
       under the misdemeanor provisions of 21 U.S.C. §
       844. Thus, gratuitous distribution of an undefined
       “small amount” of marijuana “without
       remuneration is not inherently a felony under
       federal law.” Because the state statute under
       which Wilson pled guilty does not contain sale for
       remuneration as an element, we cannot determine
       from the state court judgment that Wilson’s
       conviction necessarily entails a finding of
       remuneration.

Id. (citing Steele, 236 F.3d at 137) (internal citations omitted).
The instant case is essentially identical. The Pennsylvania
statute does not contain remuneration as an element. The
record, which we are permitted to examine under Garcia,
contains no indication that Jeune was distributing marijuana for
money. We must rely only on “what the convicting court must
necessarily have found to support the conviction.” Steele, 236
F.3d at 135; see also Gerbier, 280 F.3d at 313. Nevertheless,
the Government states that “there is no basis for making the leap
that this exception is the analogous federal statute to Jeune’s
conviction.” Yet, we cannot infer remuneration where neither
the face of the statute nor the record of the conviction establish
that it existed. We do know from the state sentence that Garcia
possessed less than two pounds of marijuana or fewer than ten
live plants. See 18 PA. CONS. STAT. ANN. § 7508(a)(1)(i). The

                               15
Government contends that the federal threshold for exceeding
the statutory “small amount” exception is far lower. We cannot
speculate, however, as to the amount of marijuana that Garcia
may have possessed.

       Jeune’s conviction does not, on the record before us,
constitute an aggravated felony under the hypothetical federal
felony route.

                       III. Conclusion

       Simply put, we clearly contemplated in Garcia situations
in which a conviction under 35 PA. CONS. STAT. ANN. § 780-
113(a)(30) would not constitute an aggravated felony. The
instant case presents a conviction under that statute with no
additional facts available from the record. We cannot hold
Jeune’s conviction to be an aggravated felony and remain
consistent with our holding in Garcia.

       We will grant the petition for review and remand the case
to the BIA for further proceedings consistent with this opinion.




                              16
