                                                                             FILED
                               NOT FOR PUBLICATION                            MAY 16 2012

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



                               FOR THE NINTH CIRCUIT


THANH VAN LE,                                     No. 08-74865

                 Petitioner,                      Agency No. A042-804-351

     v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

                 Respondent.


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

                Argued May 5, 2010 and Submitted December 16, 2011
                                Seattle, Washington

Before: WARDLAW, GOULD, and CALLAHAN, Circuit Judges.

          Thanh Van Le, a Vietnamese citizen and lawful permanent resident, pled

guilty to, and was convicted of, possession of a controlled substance with intent to

deliver in violation of § 69.50.401 of the Revised Code of Washington. On

returning from a trip to Vietnam in 2005, Le was charged with being removable as

an inadmissible arriving alien whom the immigration authorities had reason to


 *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
believe was an illicit trafficker in a controlled substance under 8 U.S.C.

§ 1182(a)(2)(C). The Department of Homeland Security later added an additional

charge of removability under § 1182(a)(2)(A)(i)(II), alleging that Le had been

convicted of a controlled substance violation. The Immigration Judge determined

that the state crime was not an aggravated felony but in discretion denied

cancellation of removal. The Board of Immigration Appeals held that Le’s state

conviction was an aggravated felony for immigration purposes, so Le was

statutorily ineligible for cancellation of removal, and on this basis affirmed the

denial of cancellation of removal.

      The petition for review that is before us followed. Whether an offense

constitutes an aggravated felony “presents a question of law over which we have

jurisdiction.” Suazo Perez v. Mukasey, 512 F.3d 1222, 1225 (9th Cir. 2008).

      The parties agree that the state statute of conviction is not categorically an

aggravated felony. The remaining issues are whether the court may apply the

modified categorical approach, and if so, whether Le’s state conviction constitutes

an aggravated felony under that approach.

      On the first issue, Le argued that the state statute of conviction was missing

an element of the generic crime and under Navarro-Lopez v. Gonzales, 503 F.3d

1063 (9th Cir. 2007) (en banc), the modified categorical approach could not be


                                          2
used. We stayed this petition for review pending our en banc decision in Aguila-

Montes, which overruled Navarro-Lopez, and held that the modified categorical

approach could be used even if the statute of conviction was missing an element of

the generic crime. United States v. Aguila-Montes de Oca, 655 F.3d 915, 916 (9th

Cir. 2011) (en banc). Le now contends that Aguila-Montes should not be applied

retroactively to him. We disagree. As we explained in Aguila-Montes:

      Before Navarro-Lopez, our cases drew no distinction between
      different kinds of statutes in terms of when the modified categorical
      approach could be applied. We simply applied the categorical
      approach and, even if we determined that the offense of conviction
      was missing an element of the generic crime, we then applied the
      modified categorical approach without any inquiry as to whether the
      approach should be applied.

655 F.3d at 922. Le’s conviction occurred in 2001, six years before our Navarro-

Lopez decision. Le did not enter a guilty plea to a crime in reliance on the missing

element rule of Navarro-Lopez. Accordingly, we conclude that we may apply the

modified categorical approach to Le’s conviction, with no unfairness to him or

detriment to any reliance interest.

      Under the modified categorical approach, we must determine whether “the

defendant was convicted of the necessary elements of the generic crime.” Suazo

Perez, 512 F.3d at 1226. “In other words, the purpose of the modified categorical

approach is to determine (1) what facts the state conviction necessarily rested on


                                         3
and (2) whether these facts satisfy the elements of the generic offense.”

Aguila-Montes, 655 F.3d at 936.

      A state conviction involving a controlled substance can qualify as the

aggravated felony of drug trafficking “if it would be punishable as a felony under

the federal drug laws.” Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

Applying the modified categorical approach, we compare the elements of Le’s

state conviction to the elements required for a violation of the Controlled

Substance Act (“CSA”) and determine whether Le’s offense would be a federal

felony. Id. Le was convicted of possession with intent to deliver marijuana.

Under 21 U.S.C. § 841(a)(1)—an aggravated felony drug-trafficking crime

incorporated into 8 U.S.C. § 1101(a)(43)(B) by 18 U.S.C. § 924(c)(2)—it is

unlawful to knowingly or intentionally “manufacture, distribute, or dispense, or

possess with intent to distribute or dispense, a controlled substance.”

      Le contends that conduct that falls under “deliver” in the state statute is

broader than conduct that falls under “distribute” in the federal statute, and so Le’s

state conviction for intent to deliver does not constitute intent to distribute under

§ 841(a)(1). He relies on the fact that the federal definition for distribute “means to

deliver (other than by administering or dispensing) a controlled substance or a

listed chemical,” 21 U.S.C. § 802(11), but the state definition does not contain


                                           4
those exceptions, so he could have been convicted for dispensing or

administering—behavior not criminalized under the federal generic statute. But

dispensing is clearly criminalized under § 841(a)(1). Further, administering is

defined as to apply a controlled substance to the body of a patient or research

subject. 21 U.S.C. § 802. Because the officer found drugs in the trunk of Le’s car,

it is clear that Le’s possession did not fall into the administering exception to

distribution, and Le’s state conviction for intent to deliver constitutes intent to

distribute under § 841(a)(1).

      However, the CSA creates an exception to § 841(a)(1) for the distribution of

a “small amount of marihuana for no remuneration,” which it classifies as a

misdemeanor rather than a felony. § 841(b)(4). Le’s state conviction does not fall

within that exception. The “narrow, specified set of documents that are part of the

record of conviction,” Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004), do

not state how much marijuana Le possessed, but we may also consider the contents

of additional documents “if specifically incorporated into the guilty plea or

admitted by a defendant.” Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir.

2005). We may do so even if the defendant chooses to plead guilty despite

maintaining his innocence, so long as he incorporates the additional documents

into his plea. Suazo Perez, 512 F.3d at 1226–27 & n.4.


                                           5
      As in Suazo Perez, Le checked the box on his guilty plea incorporating

police reports and the statement of probable cause, giving no statement of facts

himself. In the certification for determination of probable cause, Special Agent

Grafton said that he found more than fifty pounds of marijuana in the trunk of the

car. We made clear in Aguila-Montes that where a permissible document satisfies

an element of a crime in only one way, “then the factfinder was ‘actually required’

to find that the defendant [committed the crime that way], and the conviction

‘necessarily rested’ on this fact.” Aguila-Montes, 655 F.3d at 938. Here, the

certification for determination of probable cause states that a “search of the

residence lead [sic] to the seizure of 51.2 pounds of marijuana.” This is the only

statement identifying the marijuana in Le’s possession. And Le himself adopted

this statement when he made his guilty plea and incorporated this statement as a

basis for his guilty plea. Because 51.2 pounds is not a “small amount,” Le was not

eligible for the exception under 841(b)(4).1

      The petition is DENIED.




1
  Because we hold that Le was convicted of an aggravated felony, rendering him
ineligible for cancellation of removal, we need not and do not address his claim
that the Immigration Judge’s discretionary denial of cancellation of removal was
affected by such substantial errors that Le’s right to due process was violated.

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