                    Case: 12-10183            Date Filed: 12/05/2012   Page: 1 of 3

                                                                           [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10183
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A074-897-651




PEDRO MORENO ROJO,

llllllllllllllllllllllllllllllllllllllll                                               Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                              Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                             (December 5, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-10183     Date Filed: 12/05/2012    Page: 2 of 3



      Pedro Moreno Rojo, a native and citizen of Mexico, seeks review of the

Board of Immigration Appeal’s (“BIA”) order denying Rojo’s motion to terminate

removal proceedings. On appeal, Rojo argues that his conviction for distribution

of Alprazolam was not an aggravated felony because Alprazolam is not listed as a

controlled substance in 21 U.S.C. § 812.

      We review de novo whether a prior conviction qualifies as an aggravated

felony. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011).

      “Any alien who is convicted of an aggravated felony at any time after

admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An “aggravated felony”

includes “illicit trafficking in a controlled substance (as defined in section 802 of

Title 21).” Id. § 1101(a)(43)(B) (emphasis added).

      In turn, 21 U.S.C. § 802 defines “controlled substance” as “a drug or other

substance, or immediate precursor, included in schedule I, II, III, IV, or V of part

B of this subchapter.” 21 U.S.C. § 802(6). Those five schedules of controlled

substances are listed at 21 U.S.C. § 812.

      Importantly, section 812 explicitly instructs that its lists of controlled

substances should be updated and republished annually. The “[r]evised schedules

are published in the Code of Federal Regulations, Part 1308 of Title 21, Food and



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Drugs.” Id. § 812 n.1. In other words, the definition of “controlled substance” in

21 U.S.C. § 802 incorporates the revised schedules as published in 21 C.F.R.

§ 1308.

      Alprazolam is not listed in any of the five original schedules found in 21

U.S.C. § 812. However, it is listed in 21 C.F.R. § 1308.14(c)—and accordingly

has been incorporated into § 802.

      We agree with the BIA that Rojo’s conviction for distribution of

Alprazolam is an aggravated felony because Alprazolam is a “controlled substance

. . . as defined in section 802 of Title 21.”

      PETITION DENIED.




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