     12-2798
     Pascual v. Holder

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7
 8     (Submitted: February 5, 2013            Decided: July 9, 2013)
 9
10                              Docket No. 12-2798
11
12   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
13
14   Manuel Pascual, AKA Scarface Gomez,
15
16                       Petitioner,
17
18               - v.-
19
20   Eric H. Holder, Jr., United States Attorney General,
21
22                       Respondent.
23
24   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
25

26         Before:           JACOBS, Chief Judge, KEARSE and CARNEY,
27                           Circuit Judges.
28
29         Manuel Pascual, a citizen of the Dominican Republic,

30   seeks rehearing of our denial of his petition for review of

31   a Board of Immigration Appeals order, affirming an

32   immigration judge’s finding that Pascual was ineligible for

33   cancellation of removal from the United States by reason of

34   his conviction for an aggravated felony.          We held that a

35   conviction under N.Y.P.L. § 220.39(1) constitutes,

36   categorically, an aggravated felony conviction under the
 1   Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B),

 2   and dismissed the petition accordingly.   We grant the

 3   petition for panel rehearing and adhere to our conclusion.

 4
 5                              BENJAMIN M. MOSS, United States
 6                              Department of Justice Office of
 7                              Immigration, Washington, DC, for
 8                              Respondent.
 9
10                              THOMAS E. MOSELEY, Law Offices
11                              of Thomas E. Moseley, Newark,
12                              New Jersey, for Petitioner.
13
14                              David Debold (William Han, on
15                              the brief), Gibson, Dunn &
16                              Crutcher LLP, Washington, D.C.,
17                              Manuel D. Vargas (Isaac Wheeler,
18                              on the brief), Immigrant Defense
19                              Project, New York, New York,
20                              for amici curiae Immigrant
21                              Defense Project, The Bronx
22                              Defenders, The Brooklyn Defender
23                              Services, The Legal Aid Society,
24                              Neighborhood Defender Service
25                              Harlem, New York County Defender
26                              Services, and Queens Law
27                              Associates in support of
28                              Petitioner.
29
30
31
32   PER CURIAM:

33       Manuel Pascual, a citizen of the Dominican Republic,

34   seeks rehearing of our denial of his petition for review of

35   a Board of Immigration Appeals (the “Board”) decision

36   affirming an immigration judge’s (“IJ”) ruling that Pascual



                                  2
 1   had been convicted of an aggravated felony, and was

 2   therefore ineligible for cancellation of removal.     On

 3   February 19, 2013, we held that a conviction under New York

 4   Penal Law (“NYPL”) § 220.39(1) constitutes, categorically,

 5   an aggravated felony conviction under the Immigration and

 6   Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), and we

 7   dismissed the petition accordingly.   See Pascual v. Holder,

 8   707 F.3d 403 (2d Cir. 2013).   Pascual filed this timely

 9   petition for rehearing, supported by several amici curiae.

10   The petition for panel rehearing is granted to consider the

11   issues raised by Pascual and amici.   We nevertheless adhere

12   to our affirmance of the Board’s decision, and our dismissal

13   of Pascual’s petition for relief from removal.

14

15                                  I

16       We recount only the context that bears upon Pascual’s

17   petition for rehearing.   Fuller background is set out in the

18   prior opinion: Pascual, 707 F.3d at 404.

19       Pascual’s removability depends on whether his 2008

20   state court conviction--for third-degree criminal sale of a

21   controlled substance (cocaine) in violation of NYPL §

22   220.39(1)--constitutes an aggravated felony under the INA.


                                    3
 1   An “aggravated felony” is defined to include “illicit

 2   trafficking in a controlled substance (as defined in section

 3   802 of Title 21), including a drug trafficking crime (as

 4   defined in section 924(c) of Title 18).”         8 U.S.C. §

 5   1101(a)(43)(B).     A state offense is punishable as a felony

 6   under the Controlled Substances Act (“CSA”), 21 U.S.C. §

 7   801, et seq., only if it “proscribes conduct punishable as a

 8   felony under that federal law.”     Lopez v. Gonzales, 549 U.S.

 9   47, 60 (2006).     A state drug offense ranks as an aggravated

10   felony only if it “correspond[s] to an offense that carries

11   a maximum term of imprisonment exceeding one year under the

12   CSA.”     Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir.

13   2008).     See Pascual, 707 F.3d at 405.

14          The IJ concluded that the New York conviction was an

15   aggravated felony, the Board affirmed, and we agreed.         The

16   petition was therefore dismissed.     See Pascual, 707 F.3d at

17   405.     Pascual argued that a conviction under NYPL § 220.39

18   is not categorically an aggravated felony because it would

19   encompass a mere “‘offer[] to sell,’” and that such an offer

20   would not violate the federal analog.      Id.     We ruled that

21   the analogous federal statute, 21 U.S.C. § 841(a)(1),

22   punishes the “‘actual, constructive, or attempted transfer


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 1   of a controlled substance,’” and that therefore, “even if

 2   Pascual did no more than offer or attempt to sell cocaine,

 3   the state offense would be conduct punishable as . . . an

 4   aggravated felony.”    Id.

 5

 6                                  II

 7       The petition for rehearing argues that our holding

 8   conflicts with prior Second Circuit case law--in particular,

 9   United States v. Savage, 542 F.3d 959 (2d Cir. 2008).

10   Savage appealed his sentence (for possession of ammunition

11   by a convicted felon) on the ground that one of his prior

12   felony convictions was erroneously counted as a “controlled

13   substance offense” under U.S. Sentencing Guidelines (the

14   “Guidelines”) § 4B1.2(b).    Agreeing, we vacated and remanded

15   for re-sentencing.    Id. at 967.   Savage held that a prior

16   Connecticut state court conviction for drug trafficking did

17   not categorically qualify as a controlled substance offense

18   under the Guidelines because the Connecticut statute

19   criminalizes some conduct that falls outside the Guidelines’

20   definition; in particular, the Connecticut “statute plainly

21   criminalizes . . . a mere offer to sell a controlled

22   substance[,]” including fraudulent offers, “such as when one


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 1   offers to sell the Brooklyn Bridge.”   Id. at 965.   Since a

 2   fraudulent offer to sell drugs lacks the intent to commit a

 3   substantive narcotics offense, it does not amount to a

 4   predicate controlled substance offense under the Guidelines.

 5   Id. at 965-66.

 6       Pascual and amici argue that the Guidelines definition

 7   of a controlled substance offense is indistinguishable from

 8   the definition of “illicit trafficking in a controlled

 9   substance” under the INA.   They reason by extension that,

10   because NYPL § 220.39 also criminalizes offers to sell

11   narcotics, a violation of that law is not categorically

12   within the scope of drug trafficking offenses under the INA.

13       This argument rests on a false premise.     Unlike the

14   Connecticut statute, NYPL § 220.39 does not criminalize

15   “mere offers” (or fraudulent offers) to sell narcotics.

16   Under New York law, the offer must be “bona fide,” and a

17   bona fide offer is one that is made with the intent and

18   ability to follow through on the transaction.    See People v.

19   Samuels, 99 N.Y.2d 20, 24, 780 N.E.2d 513 (2002); People v.

20   Mike, 92 N.Y.2d 996, 998, 706 N.E.2d 1189 (1998).    A

21   violation of NYPL § 220.39 is therefore categorically

22   conduct within the INA definition of drug trafficking.



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 1                                III

 2       Pascual and amici also argue on rehearing that a

 3   conviction under NYPL § 220.39 does not necessarily reflect

 4   the “substantial step” in selling drugs that is an element

 5   of the analogous federal offense, see United States v.

 6   Delvecchio, 816 F.2d 859, 861-62 (2d Cir. 1987).

 7       As our earlier opinion stated, federal law proscribes

 8   an attempted transfer of a controlled substance.    See

 9   Pascual, 707 F.3d at 405 (citing 21 U.S.C. § 841(a)(1)).     A

10   defendant is guilty of attempted distribution if he (1) had

11   the intent to commit the crime, and (2) “engaged in conduct

12   amounting to a ‘substantial step’ towards the commission of

13   the crime.”   United States v. Martinez, 775 F.2d 31, 35 (2d

14   Cir. 1985).   “[A] substantial step must be something more

15   than mere preparation, yet may be less than the last act

16   necessary before the actual commission of the substantive

17   crime.”   Id. (citations and quotation marks omitted).

18   Pascual relies on Delvecchio, which instructs that an

19   attempt entails some “overt act” to carry out the offense,

20   816 F.2d at 862.   Without doubt, an offer to sell drugs--

21   made with the intent and ability to carry out the

22   transaction--is both a “substantial step” and an “overt act”


                                   7
 1   in the attempted sale of a controlled substance.     See United

 2   States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012) (“An

 3   offer to sell a controlled substance is an act perpetrated

 4   in furtherance of a sale, typically as part of the

 5   negotiation for the price and quantity, and it is therefore

 6   a substantial step in attempting to consummate a sale.”).

 7   Pascual’s argument is therefore meritless.

 8

 9                                  IV

10       Amici advance several reasons why we should abandon a

11   categorical approach to convictions under NYPL § 220.39:

12       •     Thousands of aliens like Pascual will lose the

13   opportunity to seek discretionary relief from removal.     But

14   this impact is negligible because non-citizens who sell

15   drugs in the United States (or make bona fide offers to sell

16   drugs) are unlikely to be strong candidates for

17   discretionary relief.

18       •     Fear of conviction for an aggravated felony inhibits

19   aliens from entering guilty pleas, thus burdening the

20   courts.    But this burden is offset (and then some) by the

21   efficiencies inherent in a categorical approach, which

22   avoids “the practical difficulties and potential unfairness


                                    8
 1   of a factual approach,” Taylor v. United States, 495 U.S.

 2   575, 601 (1990).

 3       •   A prior conviction for an aggravated felony greatly

 4   increases the maximum sentence for illegal re-entry and

 5   makes it easier for a criminal defendant to achieve the

 6   status of recidivist and career criminal.     But these

 7   consequences are not unintended.

 8                                *   *   *

 9       Finally, Pascual submitted a letter to the Court

10   pursuant to Fed. R. App. P. 28(j) drawing our attention to

11   Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which held

12   that “[s]haring a small amount of marijuana for no

13   remuneration” qualifies as only a misdemeanor under the CSA,

14   and therefore does not amount to an aggravated felony under

15   the INA.     Id. at 1693.   Moncrieffe does not aid Pascual

16   because NYPL § 220.39 criminalizes offers to sell narcotics.

17   See infra pp. 6-7.    Accordingly, we adhere to our conclusion

18   that Pascual’s petition for relief from removal was properly

19   dismissed.




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