Pedro Moreno Rojo v. U.S. Attorney General, No. 12-10183 (11th Cir. 2012)
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Case: 12-10183 Date Filed: 12/05/2012 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-10183 Non-Argument Calendar ________________________ Agency No.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 2 Case: 12-10183 Date Filed: 12/05/2012 Page: 3 of 3 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. 3
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