ALEXANDER v. ATTORNEY GENERAL OF U.S.
LAWSON
SEAN ALEXANDER, Petitioner,
v.
ATTORNEY
GENERAL OF THE UNITED STATES.
No. 11-2936.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 23, 2011.
Opinion filed: December 28, 2011.
Before: SLOVITER, SMITH AND GREENBERG, Circuit Judges.
NOT
PRECEDENTIAL
OPINION
PER CURIAM.
Lawson Sean Alexander
challenges the Board of Immigration Appeals's ("BIA") conclusion that
he is ineligible for cancellation of removal because he has been convicted of
an aggravated felony. For the following reasons, we will deny his petition for
review.
I.
Alexander, a citizen of
Grenada, was admitted to the United States in 1996, and granted lawful
permanent resident status in 2000. In 2009, the government initiated removal
proceedings against him based on a 2008 Pennsylvania conviction for delivering
a controlled substance, marijuana, in violation of 35 Pa. Cons. Stat. Ann. §
780-113(a)(30). Alexander was charged with being removable on the basis that
the crime of conviction is both an aggravated felony, see 8
U.S.C. § 1227(a)(2)(A)(iii), and a controlled substance violation, see §
1227(a)(2)(B)(i). He conceded the latter charge but denied that he was
removable as an aggravated felon. After a hearing, the Immigration Judge
("IJ") concluded that the 2008 conviction constituted an aggravated
felony based on allegations in the probable cause affidavit, which reflected
that Alexander sold a pound of marijuana to an undercover officer for $900.
Accordingly, the IJ found him ineligible for cancellation of removal and
ordered him removed to Grenada.
The BIA concluded that the
IJ appropriately considered the affidavit of probable cause because it was
incorporated into the plea agreement, and agreed that the 2008 conviction
constituted an aggravated felony rendering Alexander ineligible for
cancellation of removal.1 Alexander
filed a timely petition for review.
ALEXANDER v. ATTORNEY GENERAL OF U.S.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a) December 23, 2011.
United States Court of Appeals, Third Circuit.
Submitted Pursuant to Third Circuit LAR 34.1(a) December 23, 2011.
II.
The only issue raised by
Alexander's petition is whether the BIA erred in concluding that his 2008
conviction constitutes an aggravated felony. We have jurisdiction to address
that matter, as it presents a question of law.2 See 8
U.S.C. § 1252(a)(2)(D); Jarbough v. Att'y Gen., 483 F.3d 184, 189
(3d Cir. 2007) (whether a conviction constitutes an aggravated felony raises a
"purely legal question" falling within this Court's limited
jurisdiction).
Under the "illicit
trafficking" approach, a state conviction constitutes an aggravated felony
if the crime is a felony under state law and includes a "trafficking"
element. Jeune v. Att'y Gen., 476 F.3d 199, 201
(3d Cir. 2007). An offense of conviction includes a trafficking element if it
"involve[d] the unlawful trading or dealing of a controlled
substance." Garcia v. Att'y Gen., 462 F.3d 287, 293
(3d Cir. 2006) (quotations omitted). In other words, the offense must have
involved the marketing of drugs. See Steele v. Blackman, 236 F.3d 130, 135
(3d Cir. 2001). As convictions under 35 Pa. Cons. Stat. Ann. § 780-113(a)(30)
do not invariably qualify as aggravated felonies, the Court must resort to the
modified categorical approach, which looks to the facts necessarily admitted to
determine whether a given conviction qualifies as an aggravated felony. See
Garcia, 462 F.3d at 293. In the guilty plea context, application of the
modified categorical approach permits consideration of the "statutory
definition, charging document, written plea agreement, transcript of the plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented." Evanson v. Att'y Gen., 550 F.3d 284, 291
(3d Cir. 2008) (quotations omitted).
Here, the record of
conviction before the IJ consisted of (1) the criminal complaint, which
incorporated the affidavit of probable cause; (2) the criminal information; (3)
the plea agreement signed by Alexander; (4) a document indicating when
Alexander was arraigned and re-arraigned; and (5) an order imposing Alexander's
sentence. Alexander's plea agreement establishes that he pled guilty to
"deliver[ing] a Schedule I controlled substance, to wit: MARIJUANA"
in violation of 35 Pa. Cons. Stat. Ann. § 780-113(a)(30), a felony under state
law, as charged in count one of the information. (R. 129.) Alexander is correct
that the criminal complaint and attached affidavit of probable cause normally
would not be appropriate sources to consider under the modified categorical
approach because they were superseded by the information. See Evanson,
550 F.3d at 293 n.7. However, his signed plea agreement explicitly incorporated
the allegations of the affidavit of probable cause — i.e., that he sold a pound
of marijuana to an undercover officer for $900 — as the factual basis for his
plea.3 Accordingly,
it was appropriate for the BIA to consider the affidavit of probable cause
because Alexander admitted the factual allegations therein.4 See
Shepard v. United States, 544 U.S. 13, 26
(2005) (in determining whether an element in question is necessarily admitted
by a guilty plea, a court may consider "the terms of a plea agreement or
transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant"); Thomas v. Att'y
Gen., 625 F.3d 134,
145-47 (3d Cir. 2010) (indicating that an officer's allegations may be
considered if "[t]he factual basis for [the] plea . . . [was] placed on
the record by incorporating the written statement of the police officer").
Based on those facts, Alexander's 2008 conviction constitutes an aggravated
felony because it contains a trafficking element.
For the foregoing reasons,
we will deny Alexander's petition for review.
Footnotes
1. The BIA also rejected Alexander's request for a remand so that
he could locate and present additional portions of his record of conviction.
Alexander does not challenge that ruling.
2. The government initially moved to dismiss Alexander's petition
for lack of jurisdiction, but now recognizes that we retain jurisdiction to
address the aggravated felony issue. Accordingly, we will deny the government's
motion.
3. Alexander argues that the BIA erred in relying on the plea
agreement's reference to the affidavit of probable cause because the statement
was hand-written instead of typed. Yet he acknowledged before the IJ that the
plea agreement, which bears his signature, was part of his record of
conviction. (R. 87.) Furthermore, there is simply no evidence that the document
was altered. Nor is there any basis for Alexander's apparent belief that the
affidavit of probable cause was fabricated.
4. Alexander's testimony before the IJ is not a source of
information that may be considered under the modified categorical approach. See Catwell v. Att'y Gen., 623 F.3d 199, 210
(3d Cir. 2010). Furthermore, we may not consider the transcript of the
sentencing hearing that Alexander attached to his brief. See 8 U.S.C. § 1252(b)(4)(A).
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