Pascual v. Holder, No. 12-2798 (2d Cir. 2013)

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This opinion or order relates to an opinion or order originally issued on February 19, 2013.

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12-2798 Pascual v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Submitted: February 5, 2013 Decided: July 9, 2013) Docket No. 12-2798 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Manuel Pascual, AKA Scarface Gomez, Petitioner, - v.Eric H. Holder, Jr., United States Attorney General, Respondent. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Before: JACOBS, Chief Judge, KEARSE and CARNEY, Circuit Judges. 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. 35 conviction under N.Y.P.L. § 220.39(1) constitutes, 36 categorically, an aggravated felony conviction under the We held that a 1 Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), 2 and dismissed the petition accordingly. 3 petition for panel rehearing and adhere to our conclusion. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 We grant the BENJAMIN M. MOSS, United States Department of Justice Office of Immigration, Washington, DC, for Respondent. THOMAS E. MOSELEY, Law Offices of Thomas E. Moseley, Newark, New Jersey, for Petitioner. David Debold (William Han, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., Manuel D. Vargas (Isaac Wheeler, on the brief), Immigrant Defense Project, New York, New York, for amici curiae Immigrant Defense Project, The Bronx Defenders, The Brooklyn Defender Services, The Legal Aid Society, Neighborhood Defender Service Harlem, New York County Defender Services, and Queens Law Associates in support of Petitioner. PER CURIAM: 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. 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. 8 707 F.3d 403 (2d Cir. 2013). 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. 12 to our affirmance of the Board s decision, and our dismissal 13 of Pascual s petition for relief from removal. On See Pascual v. Holder, Pascual filed this timely We nevertheless adhere 14 15 16 I 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). 5 1101(a)(43)(B). 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. 9 47, 60 (2006). 8 U.S.C. § A state offense is punishable as a felony Lopez v. Gonzales, 549 U.S. 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. 13 2008). 14 Martinez v. Mukasey, 551 F.3d 113, 117 18 (2d Cir. See Pascual, 707 F.3d at 405. 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. 17 405. 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. 21 the analogous federal statute, 21 U.S.C. § 841(a)(1), 22 punishes the actual, constructive, or attempted transfer See Pascual, 707 F.3d at Pascual argued that a conviction under NYPL § 220.39 4 Id. We ruled that 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). 15 for re-sentencing. 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 Agreeing, we vacated and remanded Id. at 967. 5 Savage held that a prior 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. 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). 21 violation of NYPL § 220.39 is therefore categorically 22 conduct within the INA definition of drug trafficking. 6 See People v. A 1 2 III 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. 9 Pascual, 707 F.3d at 405 (citing 21 U.S.C. § 841(a)(1)). See 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. 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. 21 made with the intent and ability to carry out the 22 transaction--is both a substantial step and an overt act Id. (citations and quotation marks omitted). Without doubt, an offer to sell drugs-- 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 10 11 12 IV Amici advance several reasons why we should abandon a categorical approach to convictions under NYPL § 220.39: ¢ Thousands of aliens like Pascual will lose the 13 opportunity to seek discretionary relief from removal. 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 ¢ But Fear of conviction for an aggravated felony inhibits 19 aliens from entering guilty pleas, thus burdening the 20 courts. 21 efficiencies inherent in a categorical approach, which 22 avoids the practical difficulties and potential unfairness But this burden is offset (and then some) by the 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. 7 consequences are not unintended. 8 * * But these * 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. 16 because NYPL § 220.39 criminalizes offers to sell narcotics. 17 See infra pp. 6-7. 18 that Pascual s petition for relief from removal was properly 19 dismissed. Id. at 1693. Moncrieffe does not aid Pascual Accordingly, we adhere to our conclusion 9