                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 22 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARK DEVON SMART, a.k.a. Mark                    No. 11-70051
Smart,
                                                 Agency No. A034-347-072
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted August 30, 2012**

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

       Mark Smart, a native and citizen of Belize, petitions pro se for review of a

decision by the Board of Immigration Appeals (“BIA”). Smart raises the same

arguments before this Court that he raised before the BIA. The BIA upheld the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge’s ruling that Smart’s conviction for possession of marijuana for

sale, in violation of California Health and Safety Code § 11359, constituted a drug

trafficking crime and therefore was an aggravated felony under 8 U.S.C. §

1101(a)(43)(B), rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). The

BIA also rejected Smart’s due process claim. To the extent Smart challenges these

holdings, we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Kwong v. Holder,

671 F.3d 872, 876 (9th Cir. 2011); see also Kin v. Holder, 595 F.3d 1050 (9th Cir.

2010); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008). However,

to the extent Smart raises other issues, we do not have jurisdiction to consider

them. 8 U.S.C. § 1252(a)(2)(C).

      Where, as here, the BIA writes its own decision and does not adopt the

immigration judge’s decision, we review the BIA’s decision only. See Aden v.

Holder, 589 F.3d 1040, 1043 (9th Cir. 2009). We review de novo the BIA’s

conclusions regarding questions of law, including due process claims and the

question of whether an offense qualifies as an aggravated felony. Kwong, 671 F.3d

at 876; Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).

      Smart contends that he was not convicted of an aggravated felony. We

reject this contention. Smart’s attempt to vacate his conviction for possession of

marijuana for sale, in violation of California Health and Safety Code § 11359, was


                                          2                                    11-70051
unsuccessful and he therefore has a conviction for purposes of determining

whether he was convicted of an aggravated felony. See 8 U.S.C. §

1101(a)(48)(A)(i); Planes v. Holder, 652 F.3d 991, 995-97 (9th Cir. 2011). A state

offense qualifies as an aggravated felony if it proscribes conduct that would be

punishable as a felony under the Controlled Substances Act. Lopez v. Gonzales,

549 U.S. 47, 55-60 (2006). A violation of California Health and Safety Code §

11359 would be punishable as a felony under 21 U.S.C. § 841(a)(1) and (b)(1)(D).

See United States v. Martinez-Rodriguez, 472 F.3d 1087, 1096 (9th Cir. 2007)

(recognizing that California’s possession for sale statute closely mirrors the federal

statute that criminalizes possession with intent to distribute); compare United

States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003) (holding that the

elements of possession with intent to distribute under § 841(a)(1) are: (1)

knowingly possessing a controlled substance; (2) with intent to deliver it to another

person) with People v. Harris, 83 Cal. App. 4th 371, 374 (2000) (holding that

unlawful possession of marijuana for sale requires proof that the defendant

possessed the contraband with the intent of selling it and with knowledge of both

its presence and illegal character).

      Contrary to Smart’s contentions, his offense is not comparable to the

misdemeanor provisions set forth in 21 U.S.C. § 841(b)(4). By its plain language,


                                          3                                    11-70051
§ 841(b)(4) applies only to distribution of marijuana, see 21 U.S.C. § 841(b)(4),

and section 11359 does not prohibit the distribution of marijuana, see California

Health and Safety Code § 11359. We therefore hold that Smart was convicted of

an aggravated felony.

      We also reject Smart’s due process challenge. Smart was not prevented

from reasonably presenting his case. See Ibarra-Flores, 439 F.3d at 620.

Moreover, it was not a denial of due process for the agency to rely on the

rebuttable presumption that a drug trafficking offense is a particularly serious

crime. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949-50 (9th Cir. 2007).

      PETITION FOR REVIEW DENIED.




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