                         REVISED AUGUST 23, 2010

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                       No. 08-60530                        June 15, 2010

                                                                          Lyle W. Cayce
                                                                               Clerk
Giancarlo DAVILA,

                                                  Petitioner
v.

Eric H. HOLDER, Jr., U.S. Attorney General,

                                                  Respondent



     Petition for Review of an Order of the Board of Immigration Appeals
                                No. 091 674 892


Before HIGGINBOTHAM, DAVIS, and BENAVIDES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Giancarlo Davila (“Davila”) petitions for review of the Board of
Immigration Appeals (“BIA”) order dismissing his appeal from the Immigration
Judge’s (“IJ”) order finding him ineligible for cancellation of removal. For the
following reasons, we grant Davila’s petition and remand the case to the BIA for
further proceedings consistent with this opinion.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-60530


                                        I.
      Davila entered the United States from Peru in 1981, and became a lawful
permanent resident in 1989. In 2003, he pleaded guilty to criminal sale of
cocaine in the second degree under N.Y. PENAL LAW § 220.41 and to criminal
possession of a handgun under N.Y. PENAL LAW § 265.01.              In 2007, the
Department of Homeland Security (“DHS”) initiated removal proceedings
against Davila under 8 U.S.C. §§ 1227(a)(2)(B)(i), (a)(2)(C). In February 2008,
the IJ ordered Davila removed to Peru and found Davila ineligible for
discretionary cancellation of removal because Davila’s conviction for sale of
cocaine in the second degree constituted an aggravated felony under 8 U.S.C. §
1227(a)(2)(A)(iii). Davila appealed the IJ’s determination that he was convicted
of an aggravated felony. In May 2008, the BIA dismissed Davila’s appeal,
agreeing with the IJ that Davila committed an “aggravated felony,” and thus
was barred from applying for discretionary cancellation of removal under 8
U.S.C. § 1229b(a)(3).


                                       II.
      “The BIA’s determination that an alien is ineligible for discretionary relief
in the form of cancellation of removal is a question of law that we review de
novo.” Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). However,
if a statute is ambiguous, we defer to the agency’s interpretation of the
provisions it administers, so long as those interpretations are based on a
permissible construction of the statute. Chevron, U.S.A., Inc. v. NRDC, 467 U.S.
837, 843 (1984).


                                       III.



                                        2
                                  No. 08-60530

      The Immigration and Nationality Act (“INA”) provides that discretionary
cancellation of removal is not available to anyone convicted of “any aggravated
felony.” 8 U.S.C. § 1229b(a)(3). Davila’s prior conviction for selling cocaine
under N.Y. PENAL LAW § 220.41 is an aggravated felony if it constitutes a “drug
trafficking crime” as defined by the Controlled Substances Act (“CSA”). 8 U.S.C.
§ 1101(a)(43)(B). The CSA defines a drug trafficking crime to mean any felony
punishable under the CSA. 18 U.S.C. § 924(c)(2). In Lopez v. Gonzales, the
Supreme Court held that “a state offense constitutes a ‘felony punishable under
the [CSA]’ only if it proscribes conduct punishable as a felony under that federal
law.” 549 U.S. 47, 60 (2006). Thus, the question narrows to whether Davila’s
conviction under N.Y. PENAL LAW § 220.41 is a felony under the CSA.
      To determine whether a state crime proscribes conduct punishable by the
CSA, we use a “categorical approach.” Larin-Ulloa v. Gonzales, 462 F.3d 456,
463 (5th Cir. 2006); Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir. 2005). Under
this approach, “we refer only to the statutory definition of the crime for which
the alien was convicted” and ask whether every possible conviction under that
statute is a felony under the CSA. Larin-Ulloa, 462 F.3d at 463. Put another
way, the lone inquiry is whether there is a possibility that Davila could have
violated N.Y. PENAL LAW § 220.41 without violating the CSA. See Taylor v. U.S.,
495 U.S. 575, 599–602 (1990).
      N.Y. PENAL LAW § 220.41 provides that “a person is guilty of criminal sale
of a controlled substance in the second degree when he knowingly and
unlawfully sells [one-half ounce or more of cocaine].” However, one may be
convicted of “selling” under N.Y. PENAL LAW § 220.41 for merely offering to sell,
exchange, or give a controlled substance.        N.Y. PENAL LAW § 220.00.        In
comparison, the CSA provides that “it shall be unlawful for any person to
knowingly or intentionally . . . distribute . . . a controlled substance.” 21 U.S.C.
§ 841(a)(1). Distribution under the CSA requires “the actual, constructive, or

                                         3
                                       No. 08-60530

attempted transfer of a controlled substance.” 21 U.S.C. § 802(8), (11). Because
Davila could have been convicted under N.Y. PENAL LAW § 220.41 for an offer to
sell (which is not an offense under the CSA), he has not categorically committed
a drug trafficking crime.
       This conclusion is supported by our case law. We have addressed the same
issue created by similar statutes that punish “offers to sell” in determining
whether they constitute drug trafficking crimes under the U.S. Sentencing
Guidelines (“USSG”).** Although we have not considered N.Y. PENAL LAW §
220.41 before, we have found that a violation of § 220.39 for criminal sale of
controlled substances in the third degree does not constitute a drug trafficking
crime under the USSG for this reason. See U.S. v. Stanley, 281 F. App’x 370, 372
(5th Cir. 2008) (unpublished).
       Also much like N.Y. PENAL LAW § 220.41, TEX. HEALTH & SAFETY CODE
§ 481.112(a) criminalizes the “deliver[y] of controlled substances,” where delivery
includes “offering to sell a controlled substance.” See TEX. HEALTH & SAFETY
CODE § 481.002. We have consistently held that convictions for delivery of
controlled substances under TEX. HEALTH & SAFETY CODE § 481.112(a) do not
qualify as drug trafficking offenses because the convictions might be for “offers
to sell,” and therefore the Texas statute is broader in scope than the CSA. See,
e.g., U.S. v. Price, 516 F.3d 285, 287 (5th Cir. 2008) (finding it dispositive that
“the definition of ‘drug trafficking offense’ under the guidelines does not include
an offer to sell”). See also U.S. v. Gonzales, 484 F.3d 712, 714–15 (5th Cir. 2007);
Morales-Martinez, 496 F.3d at 358. We have reached the same conclusion with
regard to a similar provision of the California Health and Safety Code. See U.S.



       **
          We have previously found that because the definitions of “drug trafficking crime” are
effectively identical between the USSG and the CSA, CSA cases may rely on determinations
of drug trafficking crimes made in the sentencing context. Vasquez-Martinez, 564 F.3d at
717–19.

                                              4
                                 No. 08-60530
v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Following these cases,
because N.Y. PENAL LAW § 220.41 prohibits “offers to sell,” it exceeds the scope
of the CSA.
      An examination of documents we are permitted to consider in addition to
the categorical approach has not been helpful. These documents are generally
limited to the charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented. See Shepard v. U.S., 544 U.S. 13, 16 (2005). 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 § 220.41was not merely for an offer to sell.


                                CONCLUSION
      Because we find that the record is insufficient to establish that Davila’s
conviction under N.Y. PENAL LAW § 220.41 is an aggravated felony under 8
U.S.C. § 1101(a)(43), we GRANT Davila’s petition for review and REMAND to
the BIA for further proceedings consistent with this opinion.
      GRANT PETITION.
      REMAND.




                                       5
