                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 18 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

HERMENEGILDO CEBALLOS, AKA                       No. 15-73265
Hermenegildo Ceballos-Ochoa, AKA
Hermenegildo Ochoa,                              Agency No. A044-794-149

                Petitioner,
                                                 MEMORANDUM*
 v.

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                              Submitted October 23, 2019**
                                San Francisco, California

Before: BYBEE, N.R. SMITH, and COLLINS, Circuit Judges.

      Petitioner Hermenegildo Ceballos-Ochoa (“Ceballos”) petitions for review

of the decision of the Board of Immigration Appeals (“BIA”), which upheld the

Immigration Judge’s decision finding him ineligible for cancellation of removal



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes that this case is suitable for decision
without oral argument. See FED. R. APP. P. 34(a)(2).
under section 240A of the Immigration and Nationality Act, 8 U.S.C. § 1229b. We

deny the petition.

      Applying de novo review, Villavicencio v. Sessions, 904 F.3d 658, 663 (9th

Cir. 2018), we agree with the BIA that, under our controlling decision in United

States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) (per curiam),

Petitioner’s 2014 conviction for a violation of California Health & Safety Code

section 11358 constitutes an “aggravated felony” that renders him statutorily

ineligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). The disqualifying

“aggravated felon[ies]” include a “drug trafficking crime (as defined in section

924(c) of Title 18).” See 8 U.S.C. § 1101(a)(43)(B). Section 924(c)(2), in turn,

defines a “drug trafficking crime” as, inter alia, “any felony punishable under the

Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. § 924(c)(2). From

at least 1977 until 2016, California Health and Safety Code section 11358 has

provided for the punishment of anyone who “plants, cultivates, harvests, dries, or

processes any marijuana or any part thereof, except as otherwise provided by law.”

See CAL. HEALTH & SAFETY CODE § 11358 (West 2016); id. (West 2011).

Applying the categorical approach of Taylor v. United States, 495 U.S. 575 (1990),

we held in Reveles-Espinoza that the conduct criminalized by this language in

section 11358 is “clearly within the ambit of the federal felony of manufacturing

marijuana” under the Controlled Substances Act (“CSA”). 522 F.3d at 1048; see


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also id. at 1047 (citing 21 U.S.C. § 841(b)(1)(D) (providing that the manufacture

of marijuana in violation of 21 U.S.C. § 841(a)(1) is punishable by up to five years

in prison, and in some cases, more)); cf. 18 U.S.C. § 3559(a) (classifying as a

“felony” any federal crime punishable by more than one year in prison). As such,

a conviction under section 11358 “categorically falls within the generic definition

of a ‘drug trafficking crime’ and thus constitutes an ‘aggravated felony’ within the

meaning of 8 U.S.C. § 1229b.” Reveles-Espinoza, 522 F.3d at 1047.

      Petitioner contends that the holding of Reveles-Espinoza has been

superseded by Moncrieffe v. Holder, 569 U.S. 184 (2013), but that is wrong. In

Moncrieffe, the defendant was convicted of possession of marijuana with intent to

distribute, in violation of Georgia Code Annotated section 16˗13˗30(j)(1). Id. at

188 (citing GA. CODE ANN. § 16-13-30(j)(1) (2007)). Although that same conduct

is proscribed by the CSA, that statute does not punish all such conduct as a felony.

21 U.S.C. §§ 841(a)(4), 844. Under the CSA, a first offense for “distributing a

small amount of marihuana for no remuneration” is punishable by no more than

one year in prison (and is therefore a misdemeanor and not a felony), see 21 U.S.C.

§§ 841(b)(4), 844, and this rule equally applies to possession with intent to

distribute, see Moncrieffe, 569 U.S. at 194 n.7. Because some of the conduct

covered by the Georgia statute was thus not a felony under the CSA, a violation of

the Georgia statute was not categorically an aggravated felony. Id. at 193–95.


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      This analysis does not apply to section 11358, because the federal

misdemeanor provision on which the Court relied in Moncrieffe applies, by its

terms, only to “distributing a small amount of marihuana for no remuneration”; it

does not apply to manufacturing a small amount of marijuana. 21 U.S.C.

§ 841(b)(4) (emphasis added). Under the CSA, all manufacture of marijuana thus

remains a felony, see 21 U.S.C. § 841(b)(1)(D), and Moncrieffe therefore has no

effect upon our conclusion in Reveles-Espinoza that a violation of section 11358 is

categorically an aggravated felony. See 522 F.3d at 1047–48 (noting that all of the

conduct covered by section 11358 falls within the CSA’s definition of

“manufacture” in 21 U.S.C. § 802(15)).

      Because the BIA correctly held that Petitioner’s conviction under section

11358 is an aggravated felony under the categorical approach, no issue concerning

the modified categorical approach arises. The BIA properly held that Petitioner is

ineligible for cancellation of removal.

      PETITION DENIED.




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