                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                October 14, 2011
                              FOR THE TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

    RAMON RASCON GARCIA, a/k/a
    Ramon Garcia-Rascon, a/k/a Ramon
    Garcia, a/k/a Ramon Garcia Rascon,

                Petitioner,

    v.                                                  No. 10-9585
                                                    (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


         Ramon Rascon Garcia, a native and citizen of Mexico, seeks review of an

order by the Board of Immigration Appeals (BIA) upholding the denial of his

application for cancellation of removal. We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND

      Garcia became a lawful permanent resident of the United States in 1989.

Fifteen years later, in 2006, Garcia pleaded guilty in Utah state court to one count

of distributing or arranging to distribute a controlled substance in a drug-free

zone (a first-degree felony), and two counts of conspiring to distribute a

controlled substance in a drug-free zone (second-degree felonies). For the plea’s

factual basis, Garcia stated:

      [I]n the month of August 2005 in Box Elder County, Utah, the
      defendant did arrange to distribute methamphetamine in a [drug-free
      zone]. Additionally, in the same County of Utah, the defendant did
      on two separate occasions in August of 2005, agree with two or more
      persons to engage in the distribution of methamphetamine; on both
      occasions the agreement occurred in [drug-free zones].

R. at 304.

      The state court later amended Garcia’s convictions on two of the three

counts. It downgraded the distributing-or-arranging-to-distribute count to a

second-degree felony, and it changed one of the conspiracy counts to conspiracy

to arrange distribution. But the other conspiracy-to-distribute-a-controlled-

substance count remained intact.

      The Department of Homeland Security commenced removal proceedings

against Garcia. An immigration judge (IJ) found Garcia removable as an alien

convicted of a controlled-substance offense, and further found him ineligible for

cancellation of removal because Garcia failed to show that he was not an


                                         -2-
aggravated felon. The BIA dismissed Garcia’s appeal. In doing so, the BIA

preliminarily noted that Garcia was not contesting his removability. It then

focused its attention on Garcia’s conviction on one count of conspiracy to

distribute a controlled substance, stating that the conviction was analogous to the

federal offense of conspiracy to possess a controlled substance with intent to

distribute. 1 As such, the BIA determined that Garcia had been convicted of an

aggravated felony, and was therefore ineligible for cancellation of removal.

      Garcia now petitions for review.

                                    D ISCUSSION

                    Jurisdiction and the Standard of Review

      “Congress has eliminated judicial review of both the BIA’s discretionary

decisions, 8 U.S.C. § 1252(a)(2)(B), and of any final order of removal against an

alien who is removable by reason of having committed certain offenses, among

them aggravated felonies and controlled substance offenses, 8 U.S.C.

§ 1252(a)(2)(C).” Ballesteros v. Ashcroft, 452 F.3d 1153, 1156 (10th Cir. 2006)

(internal quotation marks omitted). But there are exceptions to this rule, allowing

us to review whether the jurisdictional bar even applies and whether a

constitutional claim or a question of law has merit. Kechkar v. Gonzales,


1
      The parties and the record are silent as to why the BIA chose to analogize
Garcia’s conviction to conspiracy to possess with intent to distribute, rather than
conspiracy to distribute. Interestingly, the IJ compared Garcia’s conviction to the
federal crime of conspiracy to distribute. See R. at 118.

                                         -3-
500 F.3d 1080, 1083 (10th Cir. 2007). Here, Garcia presents the purely legal

question of whether his conviction for conspiring to distribute a controlled

substance constitutes an aggravated felony precluding cancellation of removal.

      In reviewing the agency’s decision on this point, our review is de novo, see

Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011), and limited in scope to the

BIA’s decision, as it was rendered by a single member of the agency who

provided a “discernible substantive discussion,” Uanreroro v. Gonzales, 443 F.3d

1197, 1204 (10th Cir. 2006).

                               Cancellation of Removal

      To qualify for cancellation of removal, an alien must, among other things,

“not have been ‘convicted of any aggravated felony.’” Torres de la Cruz v.

Maurer, 483 F.3d 1013, 1020 (10th Cir. 2007) (quoting 8 U.S.C. § 1229b(a)(3)).

“The term ‘aggravated felony’ means . . . illicit trafficking in a controlled

substance[,] . . . including a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B).

This language establishes two routes through which a state drug conviction can

qualify as an “aggravated felony.” See Daas v. Holder, 620 F.3d 1050, 1054

(9th Cir. 2010); Catwell v. Att’y Gen. of U.S., 623 F.3d 199, 206 (3d Cir. 2010).

Specifically, “a state drug conviction constitutes an aggravated felony if (a) it

would be punishable as a felony under the federal Controlled Substances Act

[21 U.S.C. §§ 801-971], or (b) it is a felony under state law and includes an illicit




                                         -4-
trafficking element.” Catwell, 623 F.3d at 206. In this case, the BIA followed

only the former route, and we do so as well.

      “[A] state offense constitutes a ‘felony punishable under the Controlled

Substances Act’ only if it proscribes conduct punishable as a felony under that

federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006). “A felony is a crime

for which the maximum term of imprisonment authorized is more than one year.”

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2581 (2010) (internal quotation

marks omitted). To determine whether Garcia’s conspiracy-to-distribute offense

would fall under the Controlled Substances Act, we undertake a categorical

analysis, focusing on “the generic elements of the offense.” United States v.

Martinez-Candejas, 347 F.3d 853, 858 (10th Cir. 2003); see also Nijhawan v.

Holder, 129 S. Ct. 2294, 2300 (2009) (characterizing trafficking offenses under

§ 1101(a)(43)(B) as generic crimes warranting a categorical approach).

      Utah’s distribution statute makes it unlawful for any person to “knowingly

and intentionally . . . distribute a controlled or counterfeit substance, or to agree,

consent, offer, or arrange to distribute a controlled or counterfeit substance.”

Utah Code Ann. § 58-37-8(1)(a)(ii). Further, Utah’s conspiracy statute provides

that “a person is guilty of conspiracy when he, intending that conduct constituting

a crime be performed, agrees with one or more persons to engage in or cause the

performance of the conduct and any one of them commits an overt act in

pursuance of the conspiracy.” Id. § 76-4-201.

                                           -5-
         The federal Controlled Substances Act makes it “unlawful for any person

knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess

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

21 U.S.C. § 841(a)(1). A conspiracy to commit such a drug trafficking offense is

“subject to the same penalties as those prescribed for” the object of the

conspiracy, id. § 846, and requires (1) “an agreement to violate the law”;

(2) knowledge of “the essential objectives of the conspiracy”; (3) knowing and

voluntary involvement in the conspiracy; and (4) interdependence among the

co-conspirators, United States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir.

2006).

         Garcia argues that his state offense does not correspond to a federal felony

because “the Amended Information and the Judgment[ ] make no reference to the

particular drug type that was purportedly involved in the conspiracy conviction.”

Aplt. Br. at 24. Implicit within this argument is the fact that there are some

controlled substances whose distribution is not a federal felony. See 21 U.S.C.

§ 841(b)(3) (Schedule V narcotics) & (4) (“small amount of marihuana”). While

the amended information and judgment are silent as to the type of controlled

substance at issue, the plea agreement is not—it specifically references

methamphetamine. “When the underlying statute reaches a broad range of

conduct, some of which would constitute an aggravated felony and some of which

would not, courts resolve the ambiguity by consulting reliable judicial records,

                                           -6-
such as the . . . plea agreement, or plea colloquy.” Vargas v. Dep’t of Homeland

Security, 451 F.3d 1105, 1109 (10th Cir. 2006) (internal quotation marks

omitted); see, e.g., Rodriguez-Heredia v. Holder, 639 F.3d 1264, 1269 (10th Cir.

2011) (consulting alien’s plea agreement and presentence report to determine

whether alien’s state fraud conviction was a crime involving moral turpitude).

Thus, examination of the plea agreement, under a modified categorical approach,

is appropriate and reveals that Garcia’s state conviction is an aggravated felony.

Specifically, when the controlled substance is methamphetamine, as it is here, any

type or quantity involved is punishable as a felony. See 21 U.S.C. § 841(b). 2

      Garcia also contends that his state conviction is not analogous to a federal

conspiracy conviction because federal law requires “interdependence among the

alleged conspirators,” but Utah law does not. Aplt. Br. at 22. We disagree. The

requirement for interdependence among co-conspirators in federal law, see

Isaac-Sigala, 448 F.3d at 1210, is also present in Utah’s conspiracy statute,

Utah Code Ann. § 76-4-201. In particular, “[i]nterdependence is established

when each co-conspirators’ actions are necessary to accomplish a common, illicit

goal.” United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009) (internal

2
      Garcia further argues that the substantive offense underlying his conspiracy
conviction is not necessarily distribution. He points out that Utah Code Ann.
§ 58-37-8(1)(a)(ii) proscribes “arrang[ing] to distribute” a controlled substance,
as well as the actual distribution of a controlled substance, and that 21 U.S.C.
§ 841(a)(1) lacks an “arranging” proscription. Nevertheless, as the plea
agreement indicates, the substantive offense underlying Garcia’s conspiracy
conviction was not “arranging to distribute,” but rather, distribution.

                                         -7-
quotation marks omitted). Utah’s conspiracy statute includes interdependence by

requiring the defendant to agree with another person “to engage in or cause the

performance of . . . conduct” with the intent that “a crime be performed.” Utah

Code Ann. § 76-4-201. Thus, by essentially requiring that a defendant’s activities

facilitate the conspiratorial objective, Utah mandates interdependence among

co-conspirators. See Wardell, 591 F.3d at 1291.

      Finally, Garcia focuses on the possession aspect of the federal offense

identified by the BIA (conspiracy to possess a controlled substance with intent to

distribute). He states that possession is not an element of the distribution offense

underlying his Utah conviction, and therefore, his state conviction is not

analogous to the designated federal offense.

      The BIA determined that possession is not required in order to be convicted

of a conspiracy to possess with intent to distribute. That is true, but it

oversimplifies the necessary comparative analysis. While “it is possible to

conspire to commit [possession with intent to distribute] without actually

committing the [underlying] offense[s]” itself, United States v. Horn, 946 F.2d

738, 744-45 (10th Cir. 1991), the object of the conspiracy is still possession.

Garcia was not convicted of conspiring to possess anything, and the plea

agreement does not mention possession.

      Nevertheless, the BIA’s error is harmless. See Ngarurih v. Ashcroft, 371

F.3d 182, 191 n.8 (4th Cir. 2004) (“Harmless-error analysis applies in

                                          -8-
immigration cases.”); see, e.g., Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir.

1996) (stating that the BIA’s purported failure to consider the entire record was

harmless because “the result in [the] case would be no different” if the case were

remanded). Had the BIA compared Garcia’s conviction for conspiracy to

distribute a controlled substance to the federal offense of conspiracy to distribute

a controlled substance, possession would not be an issue. See Argencourt v.

United States, 78 F.3d 14, 16 (1st Cir. 1996) (“Possession has not been found to

be a distinct, essential element of the crime of distribution, let alone conspiracy to

distribute.”). Garcia’s conviction clearly corresponds to the federal felony

offense of conspiracy to distribute. 3

      We conclude that Garcia’s Utah conspiracy conviction was the equivalent

of a felony under the federal Controlled Substances Act. Thus, his conviction

constitutes an aggravated felony, precluding cancellation of removal.




3
       Garcia also argues that his convictions for distributing or arranging to
distribute a controlled substance and conspiring to arrange distribution of a
controlled substance are not aggravated felonies. We do not reach these
arguments because the BIA focused only on Garcia’s conviction for conspiring to
distribute a controlled substance, which as an aggravated felony, is sufficient to
preclude cancellation of removal.

                                          -9-
                               C ONCLUSION

     The petition for review is DENIED. Garcia’s request to proceed IFP on

appeal is GRANTED.

                                               Entered for the Court


                                               Stephen H. Anderson
                                               Circuit Judge




                                    -10-
