                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 13-2092
                                     ___________

                              RAMON EDILIO GOMEZ,
                                       Petitioner

                                           v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                   Respondent
                  ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A041-426-808)
                     Immigration Judge: Honorable Walter Durling
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   February 6, 2014

      Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

                          (Opinion filed: February 10, 2014)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Ramon Edilio Gomez, a native and citizen of the Dominican Republic, petitions

for review of a final order of removal entered by the Board of Immigration Appeals (the
“Board”) on March 22, 2013. For the following reasons, we will deny the petition for

review.

       Gomez was admitted to the United States on June 30, 1988, as a lawful permanent

resident. In 2011, a grand jury in North Carolina returned an indictment against him

containing one count of conspiracy to ship, transport, receive and possess contraband

cigarettes and transport stolen property, in violation of 18 U.S.C. §§ 2342(a), 2314, and

371 (Count 1); two counts of shipping, transporting, receiving, and possessing contraband

cigarettes and aiding and abetting, in violation of 18 U.S.C. §§ 2342(a) and 2 (Counts 2

and 3); and one count of transporting in interstate commerce stolen property and aiding

and abetting, in violation of 18 U.S.C. §§ 2314 and 2 (Count 4). (A.R. 109-18.) The

government alleged that Gomez conspired to import stolen and untaxed cigarettes from

North Carolina and resell them in New Jersey, without paying New Jersey’s cigarette

excise tax. Gomez pleaded not guilty to Counts 1 and 4 and guilty to Counts 2 and 3.

Following a bench trial, the District Court found Gomez guilty of Counts 1 and 4, and

subsequently sentenced him to thirty months’ imprisonment on each count, to be served

concurrently. (A.R. 86.)

       The Department of Homeland Security (“DHS”) initiated removal proceedings

against Gomez by filing a Notice to Appear (“NTA”) in 2012. The NTA charged him as

removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an

aggravated felony, specifically, a theft offense (including receipt of stolen property) for

which the term of imprisonment was at least one year. (A.R. 182.) See 8 U.S.C.
                                              2
§§ 1101(a)(43)(G) and (U). Gomez denied DHS’s allegations and denied the charge of

removability.

       The Immigration Judge (“IJ”) issued a “Ruling on Aggravated Felony,” finding

that Gomez’s federal conviction under 18 U.S.C. §§ 2314 and 2 constituted a theft

offense and aggravated felony as defined in 8 U.S.C. §§ 1101(a)(43)(G) and (U). (A.R.

121-22.) Gomez was ordered removed on November 13, 2012. (A.R. 38-39.) The

Board affirmed the IJ’s decision without an opinion. (A.R. 3.) Gomez timely filed a

petition for review.

       Generally, we lack jurisdiction to review a final order of removal against an alien,

like Gomez, who is removable for having been convicted of an aggravated felony. 8

U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review any constitutional or

legal questions raised in his petition for review. See 8 U.S.C. § 1252(a)(2)(D); Cruz v.

Att’y Gen., 452 F.3d 240, 246-47 (3d Cir. 2006). Whether Gomez was convicted of an

offense that constitutes an aggravated felony is a legal question we review de novo.

Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010). When the Board affirms the

IJ’s decision without an opinion, we review the IJ’s opinion. Dia v. Ashcroft, 353 F.3d

228, 245 (3d Cir. 2003) (en banc).

       The issue presented here is whether the IJ properly determined that Gomez’s

conviction under 18 U.S.C. §§ 2314 and 2 constituted an aggravated felony. Gomez

argues that the statute under which he was convicted, 18 U.S.C. § 2314, is a divisible

statute, and that the government failed to meet its burden of proving that the part of the
                                             3
statute pertaining to transporting stolen goods formed the basis of his conviction. He

claims that the contraband cigarettes were not stolen because he purchased them from a

confidential informant who, in turn, purchased them from the government. The

government points out that Gomez was found guilty of Counts 1 and 4 of the indictment,

both pertaining to transporting stolen property. Gomez’s conviction is no longer open to

direct or collateral attack, and he cannot challenge his removal order by arguing the

illegality of his conviction. See Drakes v. I.N.S., 330 F.3d 600, 604 (3d Cir. 2003).

       The District Court found Gomez guilty of transporting stolen property under

Counts 1 and 4 of the indictment. The Board has made clear that anyone who receives

stolen property and resolves to keep or sell it has committed the offense of receiving

stolen property. In re Bahta, 22 I. & N. Dec. 1381, 1391 (BIA 2000). We perceive no

error in the IJ’s conclusion that Gomez’s conviction under 18 U.S.C. §§ 2314 and 2

constituted a theft offense and an aggravated felony as defined in the INA. 1 8 U.S.C.

§§ 1101(a)(43)(G) and (U). (A.R. 121-22.) Therefore, Gomez’s petition for review will

be denied.




1
  The IJ properly adhered to the modified categorical approach here because Gomez’s
statute of conviction “lists elements in the alternative.” Rojas v. Att’y Gen., 728 F.3d
203, 215 (3d Cir. 2013) (citing Descamps v. United States, 133 S. Ct. 2276, 2281
(2013)). The IJ first defined receipt of stolen property consistent with Bahta and then,
based on the indictment and judgment, determined that the convictions on Counts 1and 4
constituted theft offenses and aggravated felonies. Descamps, 133 S. Ct. at 2284-85.


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