                 REVISED NOVEMBER 17, 2011
          IN THE UNITED STATES COURT OF APPEALSCourt of Appeals
                                           United States
                   FOR THE FIFTH CIRCUIT            Fifth Circuit

                                                                               FILED
                                                                            November 8, 2011
                                       No. 10-60826
                                                                              Lyle W. Cayce
                                                                                   Clerk
ADRIAN PHILLIP MONCRIEFFE,

                                                           Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                           Respondent




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


Before JONES, Chief Judge, and HAYNES, Circuit Judge and CRONE,
District Judge.*
EDITH H. JONES, Chief Judge:
      Adrian Moncrieffe petitions for review of a removal order of the Board of
Immigration Appeal’s (“BIA”). After he pled guilty to possessing marijuana with
intent to distribute in Georgia, the Department of Homeland Security (“DHS”)
charged Moncrieffe with being removable for this crime, which it contends
should be considered a felony under the Controlled Substances Act (“CSA”) and
an “aggravated felony” under immigration law. See 8 U.S.C. § 1227(a)(2)(A)(iii).



      *
          District Judge of the Eastern District of Texas, sitting by designation.
                                   No. 10-60826

The immigration judge (“IJ”) agreed, and on appeal, the BIA endorsed the felony
classification and dismissed Moncrieffe’s appeal. For the following reasons we
DENY the Petition for Review.
                                 BACKGROUND
         Moncrieffe, a native of Jamaica, entered the United States legally as a
permanent resident in 1984 at the age of three. Moncrieffe pled guilty to
“Possession of Marijuana With Intent to Distribute” under Georgia law in 2008
and was sentenced to five years probation. Because of his guilty plea, DHS
charged Moncrieffe with being removable under both 8 U.S.C. § 1227(a)(2)(B)
relating to controlled substances offenses and under § 1227(a)(2) “as an
aggravated felon” because the conviction was for a “drug trafficking crime” as
defined by 18 U.S.C. § 924(c).1 DHS produced the Georgia judgment and
charging document at the immigration hearing in support of its position. The
IJ ruled that the state conviction was analogous to a federal felony under
21 U.S.C. § 841 (a)(1) and that Moncrieffe was thus removable as an aggravated
felon.
         Moncrieffe appealed to the BIA arguing that the Georgia crime should not
be considered an aggravated felony. Moncrieffe argued that GA. CODE §16-13-
30(j) punishes acts that are equivalent to misdemeanors under the CSA.
Specifically, distribution of “a small amount of marijuana for no remuneration”
falls under the Georgia provision but is only a misdemeanor under 21 U.S.C.
§ 841(b)(4). The charging document and Georgia judgment did not indicate how
much marijuana Moncrieffe possessed. Because the government did not prove



         1
          BIA did not rule on, and we do not consider, whether the Georgia conviction
constituted a “controlled substances” violation for purposes of removal.

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                                 No. 10-60826

that there was remuneration or more than a small amount of marijuana,
Moncrieffe argued that his conviction should be considered a federal
misdemeanor. In an unpublished Fifth Circuit case, Jordan v. Gonzales, 204 F.
App’x 425 (5th Cir. 2006), this court held that a conviction for possession of
marijuana with intent to distribute was considered a federal misdemeanor under
21 U.S.C. § 841(b)(4) in the absence of proof of remuneration or of more than a
small amount of marijuana.
      The BIA was not swayed by Jordan. Under BIA precedent, a state
conviction for possessing an indeterminate amount of marijuana with intent to
distribute is considered an aggravated felony under the CSA. In re Matter of
Aruna, 24 I.&N. Dec. 452, 2008 WL 512678 (BIA Feb. 26, 2008). The BIA found
no reversible error in the IJ’s decision to follow its precedent rather than an
unpublished, non-precedential circuit court opinion. Moncrieffe petitions for a
review of the BIA decision dismissing his appeal.
                          STANDARD OF REVIEW
      This court has jurisdiction to review questions of law in petitions from the
BIA. 8 U.S.C. § 1252(a)(2). We review such questions de novo. Omagah v.
Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). Whether a prior state conviction
falls within the federal definition of aggravated felony is also reviewed de novo
because “[d]etermining a particular federal or state crime’s elements lies beyond
the scope of the BIA’s delegated power or accumulated expertise.” Id. We
review only the BIA decision “unless the IJ’s decision has some impact on the
BIA’s decision.” Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997). Factual
findings are reviewed for substantial evidence and are overturned only if “the




                                        3
                                No. 10-60826

evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion.” Chen v. Gonzales, 470 F.3d 1121, 1134 (5th Cir. 2006).




                                      4
                                 No. 10-60826

                                 DISCUSSION
      An alien who is convicted of an “aggravated felony” is removable. 8 U.S.C.
§ 1227(a)(2)(A)(iii).   “Drug trafficking crimes” are considered “aggravated
felonies.” 8 U.S.C. § 1101(a)(43)(B). “Drug trafficking crimes” include any felony
punishable under the CSA, see 18 U.S.C. § 924(c)(2), even if the offense is a
misdemeanor under state law. Lopez v. Gonzales, 549 U.S. 47, 60, 127 S. Ct.
625, 633 (2006) (noting that there “is no reason to think Congress meant to allow
the States to supplant its own [misdemeanor/felony] classifications when it
specifically constructed its immigration law to turn on them”). Felonies under
§ 924(c)(2) are those crimes that are punishable by more than one year in prison.
Lopez, 549 U.S. at 56 n.7, 127 S. Ct. at 631 n.7.
      The Fifth Circuit uses a categorical approach to determine whether a state
conviction qualifies as a felony under the CSA. Omari v. Gonzales, 419 F.3d 303,
307 (5th Cir. 2005). Under the categorical approach, the court considers whether
the elements of the state statute are analogous to a federal felony instead of
looking at the underlying facts of the crime. Id. If a state statute is divisible,
meaning that some conduct would be punished as a felony but other conduct only
punished as a misdemeanor under the CSA, then some evidence of the
underlying criminal act can be considered in the determination. Id. at 308. We
have limited the government to presenting evidence approved in Shepard v.
United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), to determine whether a guilty
plea conviction under a divisible state law was an aggravated felony. Omari,
419 F.3d at 308. Acceptable evidence includes the “charging document, written
plea agreement, transcript of plea colloquy, and any explicit factual finding by




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the trial judge to which the defendant assented.” Shepard, 544 U.S. at 16,
125 S. Ct. at 1257.
       Ordinarily, convictions for possession with intent to distribute are felonies
under the CSA. See 21 U.S.C. § 841. A subsection of the provision, however,
provides for misdemeanor treatment for distribution of small amounts of
marijuana without remuneration. 21 U.S.C. § 841(b)(4). When a state criminal
statute covers both the felony and misdemeanor conduct proscribed by § 841, the
courts of appeals are split on whether the conviction, if lacking specifics of the
underlying criminal conduct, should be treated as a felony or a misdemeanor.
The First and Sixth Circuits hold that the default punishment under § 841 is a
felony, while the Second and Third Circuits hold that the default punishment is
a misdemeanor.2 In an unpublished opinion preceding these circuit cases,
Jordan, 204 F. App’x 425, this court held that when there was no evidence of
how much marijuana was involved or of remuneration, the state conviction could
not be considered a federal felony. Jordan, however, conflicts with published
Fifth Circuit precedent construing the CSA. We decline to follow it and adopt
the First and Sixth Circuits’ approach.
       While acknowledging the circuit split, the Sixth Circuit recently ruled that
the felony provision, not the misdemeanor subsection (§ 841(b)(4)), is “the default
provision for punishing possession of the drug with intent to distribute.” Garcia,
638 F.3d at 516. The amount of marijuana is not, the court noted, an element
that prosecutors must establish for conviction under the felony provision. Id.
(citing United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002)). As a

       2
          Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011); Martinez v. Mukasey, 551 F.3d 113
(2d Cir. 2008); Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); Jeune v. Attorney General,
476 F.3d 199 (3d Cir. 2007).

                                               6
                                 No. 10-60826

result, the misdemeanor provision “is ‘best understood as a mitigating
sentencing provision’ and not ‘a stand alone misdemeanor offense.’” Id. (quoting
Julce, 530 F.3d at 34-36).
      The Second and Third Circuits, in contrast, focus on the doctrine of “least
culpable offense.” Martinez, 551 F.3d 113; Jeune, 476 F.3d 199. The Second
Circuit emphasized that “only the minimum criminal conduct necessary to
sustain a conviction under a given statute is relevant” to the categorical
approach.   Martinez, 551 F.3d at 118 (quoting Gertsenshteyn v. Mukasey,
544 F.3d 137, 143 (2d Cir. 2008)). Because a New York statute covered offenses
involving only two grams of marijuana, the court concluded that the conviction
at issue could possibly have been a non-remunerative transfer of a small amount
of marijuana and therefore should be treated as a misdemeanor under
§ 841(b)(4). Id. at 120.
      Published Fifth Circuit case law compels us to reject the Second Circuit’s
approach and agree with the First and Sixth Circuits. In United States v.
Walker, 302 F.3d 322, 324 (5th Cir. 2002), this court held that the default
sentencing range for a marijuana distribution offense is the CSA’s felony
provision, § 841(b)(1)(D), rather than the misdemeanor provision. Prior to
Walker, this court held that for sentencing purposes, when no jury determination
of drug quantity is available, the default punishment is a felony-based maximum
of five years under § 841(b)(1)(D). United States v. Garcia, 242 F.3d 593, 599
(5th Cir. 2001). The First Circuit relied on Walker as evidence that the default
punishment for any possession of marijuana with intent to distribute is
equivalent to a felony under the CSA and that the defendant bears the burden
of producing mitigating evidence in order to qualify for misdemeanor treatment.


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                                        No. 10-60826

Julce, 530 F.3d at 35. We adopt the same interpretation of § 841 for immigration
purposes as for sentencing purposes.                United States v. Hernandez-Avalos,
251 F.3d 505, 509 (5th Cir. 2001) (“We fail to see the validity of interpreting this
statute differently based on this distinction between sentencing and immigration
cases; it is, after all, the same words of the same phrase from the same statute
that is being interpreted in each instance.”), overruled on other grounds, Lopez,
549 U.S. at 60, 127 S. Ct. at 633; see also Lopez, 549 U.S. at 58, 127 S. Ct. at 632
(concluding that Congress incorporated “its own statutory scheme of felonies and
misdemeanors” in the immigration removal context). While this approach
conflicts with the unpublished opinion in Jordan, it is important to follow our
published Fifth Circuit sentencing cases. See Garcia, 638 F.3d at 517-18 (Sixth
Circuit “declin[ing] to interpret a drug-based aggravated felony differently in
immigration and criminal-sentencing contexts”). But see Martinez, 551 F.3d at
121 (Second Circuit acknowledges conflict between its own sentencing and
immigration cases interpreting § 841).
       Based on this reading of § 841, we deny Moncrieffe’s Petition for Review.
He pled guilty to possession of marijuana with intent to distribute under GA.
CODE § 16-13-30(j). Even if that section of the Georgia code could cover conduct
that would be considered a misdemeanor under § 841(b)(4), Moncrieffe bore the
burden to prove that he was convicted of only misdemeanor conduct. In re
Matter of Aruna, 24 I.&N. Dec. at 457.3 Otherwise, as is true for federal

       3
         Moncrieffe did not offer any proof of the allegedly small amount of marijuana involved
in his crime until he appealed to the BIA. This was untimely under BIA rules. 8 C.F.R.
§ 1003.1(d)(3)(iv). Therefore, we need not address the question of what quality and quantum of
proof must be offered by the defendant to show that his drug quantity qualifies for treatment under
21 U.S.C. § 841(b)(4). The evidence, even if admissible, could not be addressed in the first
instance on appeal.

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                                      No. 10-60826

defendants charged under § 841, his crime is equivalent to a federal felony. The
petitioner’s other arguments are without merit.4
                                                                       Petition DENIED.




       4
           Petitioner’s argument that the state crime was considered a misdemeanor by the
state is irrelevant given the Supreme Court’s holding in Lopez. 549 U.S. at 60 (noting that
there “is no reason to think Congress meant to allow the States to supplant its own
[misdemeanor/felony] classifications”). The petitioner’s reliance on Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010), is also misplaced because that case merely held that uncharged
and unproven recidivism could not convert a misdemeanor into an aggravated felony.
Moncrieffe was charged and pled guilty to the conduct for which he was removed.

                                              9
