dos Santos v. Attorney General of the United States
Opinion of the Court
OPINION
Jose dos Santos, a native and citizen of Brazil, seeks review of a final order issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.
We have jurisdiction to consider Santos’s legal argument that he was not convicted of an aggravated felony and exercise plenary review over the BIA’s conclusion. See Garcia v. Attorney General, 462 F.3d 287, 290-91 (3d Cir. 2006). The term “aggravated felony” includes an offense that includes “illicit trafficking in a controlled substance (as defined in 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” Evanson v. Attorney General, 550 F.3d 284, 288 (3d Cir. 2008) (citing 8 U.S.C. § 1101(a)(43)(B)) (internal quotations omitted). A state drug conviction constitutes an aggravated felony for removal purposes if (1) it would be punishable as a felony under the federal Controlled Substances Act, or (2) it is a state law felony and includes an illicit trafficking element. Evanson, 550 F.3d at 288. In this case, the BIA confined its decision to the IJ’s determination that Santos’s drug conviction was an aggravated felony under the second approach, specifically, that the Connecticut offense contained a “trafficking element,” meaning that it involved “the unlawful trading or dealing of a controlled substance.” See Gerbier v. Holmes, 280 F.3d 297, 305 (3d Cir. 2002).
The Connecticut statute penalizes “[a]ny person who manufactures, distributes, sells, px-escribes, dispenses, compounds, tx-anspox-ts with the intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance. ...” Conn. Gen. Stat § 21a-277(b). As Santos argues in his bx-ief, it is not eategox-ically clear that trafficking is an element of his offense under the Connecticut statute because remunex-ation is not a required element of the cx-ime. The Coux-t tnay look to the underlying facts of the conviction and may consult the state court guilty plea colloquy, among other things. See Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (noting that courts may examine the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented).
The administx-ative record contains a transcript of Santos’s guilty plea hearing. During the proceedings, the state prosecutor recited the facts leading to Santos’s drug arrest. In summary, Santos was in a parked vehicle with others when officers witnessed what appeax-ed to be a drug transaction. Santos received what appeared to be money from an individual and passed a small plastic bag to the payor. The police uncovered quantities of marijuana, small Ziploc bags, a digital scale, and $400 cash from in the vehicle. When the state coux-t judge asked Santos whether the facts recited by the prosecutor wex-e essentially correct, Santos denied that a transaction took place. Then, after Santos conferx-ed with counsel, the judge repeated the quex-y regarding the prosecutor’s recitation of the facts, asking, “And my question to you is: Are those facts essentially correct?” Saixtos answered, “Yes, sir.” (IJ Decision at 10-11, quoting guilty plea transcript at 7.) Santos argues that the transcript indicates only that he pleaded guilty to the “essential facts.” That is, Santos argues that he expressed agreement with only the facts that satisfied the essential elements to sustain a conviction under the Connecticut statute, which does not require remuneration. We recognize that Santos contends that he nowhere acknowledged that a sale or tx-ansaction occurred, see Pet’r Br. at 15, but the transcript belies Santos’s assex-tion. Although
Santos has submitted a letter pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure containing a new argument based on our decision in Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008). Evanson involved a Pennsylvania statute criminalizing possession of marijuana with the intent to distribute. The BIA found that the offense involved 0.4841 pounds of marijuana, and based on the large drug quantity, the BIA concluded that the offense was an aggravated felony under the hypothetical federal felony doctrine. Id. at 288. On review, we concluded that the petitioner’s crime would not be considered an aggravated felony when documents properly consulted using the modified categorical approach did not provide proof of the amount of marijuana involved or remuneration. Id. at 293-94.
For the foregoing reasons, we agree with the BIA’s decision. We will deny the petition for review.
. The BIA decision states that Santos's conviction was under Conn. Gen. Stat § 21a-277(b). The record is ambiguous on this point. The state court judgment sheet supports the BIA’s statement that the conviction was under section 21a-277(b), but the transcript of Santos's guilty plea hearing indicates that he pleaded guilty to a substituted information charging him with a violation of section 21a-277(a), a charge that carries greater penalties than subsection (b) of that statute. The parties in their briefs dispute the applicable subsection, but the discrepancy does not affect the outcome of the case. As will be discussed, an aggravated felony can be found even under the less serious offense of subsection (b).
. There is no dispute that Santos's Connecticut offense is a state law felony, with its maximum penalty a term of imprisonment not to exceed seven years. Conn. Gen. Stat. § 21a-277(b). We need not discuss the "hypothetical felony route” for determining
. We rejected the government's argument that it could properly consult the criminal information, including charges in counts of which the petitioner in Evanson was not convicted, and the judgment of sentence.
Reference
- Full Case Name
- Jose dos SANTOS v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published