Pascual v. Holder

12-2798
Pascual v. Holder
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
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August Term, 2012 5
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(Submitted: February 5, 2013 Decided: July 9, 2013) 8
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Docket No. 12-2798 10
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Manuel Pascual, AKA Scarface Gomez, 14
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Petitioner, 16
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- v.- 18
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Eric H. Holder, Jr., United States Attorney General, 20
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Respondent. 22
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Before: JACOBS, Chief Judge, KEARSE and CARNEY, 26
Circuit Judges. 27
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Manuel Pascual, a citizen of the Dominican Republic, 29
seeks rehearing of our denial of his petition for review of 30
a Board of Immigration Appeals order, affirming an 31
immigration judge’s finding that Pascual was ineligible for 32
cancellation of removal from the United States by reason of 33
his conviction for an aggravated felony. We held that a 34
conviction under N.Y.P.L. § 220.39(1) constitutes, 35
categorically, an aggravated felony conviction under the 36

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Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B), 1
and dismissed the petition accordingly. We grant the 2
petition for panel rehearing and adhere to our conclusion. 3
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BENJAMIN M. MOSS, United States 5
Department of Justice Office of 6
Immigration, Washington, DC, for 7
Respondent. 8
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THOMAS E. MOSELEY, Law Offices 10
of Thomas E. Moseley, Newark, 11
New Jersey, for Petitioner. 12
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David Debold (William Han, on 14
the brief), Gibson, Dunn & 15
Crutcher LLP, Washington, D.C., 16
Manuel D. Vargas (Isaac Wheeler, 17
on the brief), Immigrant Defense 18
Project, New York, New York, 19
for amici curiae Immigrant 20
Defense Project, The Bronx 21
Defenders, The Brooklyn Defender 22
Services, The Legal Aid Society, 23
Neighborhood Defender Service 24
Harlem, New York County Defender 25
Services, and Queens Law 26
Associates in support of 27
Petitioner. 28
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PER CURIAM: 32
Manuel Pascual, a citizen of the Dominican Republic, 33
seeks rehearing of our denial of his petition for review of 34
a Board of Immigration Appeals (the “Board”) decision 35
affirming an immigration judge’s (“IJ”) ruling that Pascual 36
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had been convicted of an aggravated felony, and was 1
therefore ineligible for cancellation of removal. On 2
February 19, 2013, we held that a conviction under New York 3
Penal Law (“NYPL”) § 220.39(1) constitutes, categorically, 4
an aggravated felony conviction under the Immigration and 5
Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), and we 6
dismissed the petition accordingly. See Pascual v. Holder, 7
707 F.3d 403 (2d Cir. 2013). Pascual filed this timely 8
petition for rehearing, supported by several amici curiae. 9
The petition for panel rehearing is granted to consider the 10
issues raised by Pascual and amici. We nevertheless adhere 11
to our affirmance of the Board’s decision, and our dismissal 12
of Pascual’s petition for relief from removal. 13
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I 15
We recount only the context that bears upon Pascual’s 16
petition for rehearing. Fuller background is set out in the 17
prior opinion: Pascual, 707 F.3d at 404. 18
Pascual’s removability depends on whether his 2008 19
state court conviction--for third-degree criminal sale of a 20
controlled substance (cocaine) in violation of NYPL § 21
220.39(1)--constitutes an aggravated felony under the INA. 22
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An “aggravated felony” is defined to include “illicit 1
trafficking in a controlled substance (as defined in section 2
802 of Title 21), including a drug trafficking crime (as 3
defined in section 924(c) of Title 18).” 8 U.S.C. § 4
1101(a)(43)(B). A state offense is punishable as a felony 5
under the Controlled Substances Act (“CSA”), 21 U.S.C. § 6
801, et seq., only if it “proscribes conduct punishable as a 7
felony under that federal law.” Lopez v. Gonzales, 549 U.S. 8
47, 60 (2006). A state drug offense ranks as an aggravated 9
felony only if it “correspond[s] to an offense that carries 10
a maximum term of imprisonment exceeding one year under the 11
CSA.” Martinez v. Mukasey, 551 F.3d 113, 117–18 (2d Cir. 12
2008). See Pascual, 707 F.3d at 405. 13
The IJ concluded that the New York conviction was an 14
aggravated felony, the Board affirmed, and we agreed. The 15
petition was therefore dismissed. See Pascual, 707 F.3d at 16
405. Pascual argued that a conviction under NYPL § 220.39 17
is not categorically an aggravated felony because it would 18
encompass a mere “‘offer[] to sell,’” and that such an offer 19
would not violate the federal analog. Id. We ruled that 20
the analogous federal statute, 21 U.S.C. § 841(a)(1), 21
punishes the “‘actual, constructive, or attempted transfer 22
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of a controlled substance,’” and that therefore, “even if 1
Pascual did no more than offer or attempt to sell cocaine, 2
the state offense would be conduct punishable as . . . an 3
aggravated felony.” Id. 4
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II 6
The petition for rehearing argues that our holding 7
conflicts with prior Second Circuit case law--in particular, 8
United States v. Savage, 542 F.3d 959 (2d Cir. 2008). 9
Savage appealed his sentence (for possession of ammunition 10
by a convicted felon) on the ground that one of his prior 11
felony convictions was erroneously counted as a “controlled 12
substance offense” under U.S. Sentencing Guidelines (the 13
“Guidelines”) § 4B1.2(b). Agreeing, we vacated and remanded 14
for re-sentencing. Id. at 967. Savage held that a prior 15
Connecticut state court conviction for drug trafficking did 16
not categorically qualify as a controlled substance offense 17
under the Guidelines because the Connecticut statute 18
criminalizes some conduct that falls outside the Guidelines’ 19
definition; in particular, the Connecticut “statute plainly 20
criminalizes . . . a mere offer to sell a controlled 21
substance[,]” including fraudulent offers, “such as when one 22
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offers to sell the Brooklyn Bridge.” Id. at 965. Since a 1
fraudulent offer to sell drugs lacks the intent to commit a 2
substantive narcotics offense, it does not amount to a 3
predicate controlled substance offense under the Guidelines. 4
Id. at 965-66. 5
Pascual and amici argue that the Guidelines definition 6
of a controlled substance offense is indistinguishable from 7
the definition of “illicit trafficking in a controlled 8
substance” under the INA. They reason by extension that, 9
because NYPL § 220.39 also criminalizes offers to sell 10
narcotics, a violation of that law is not categorically 11
within the scope of drug trafficking offenses under the INA. 12
This argument rests on a false premise. Unlike the 13
Connecticut statute, NYPL § 220.39 does not criminalize 14
“mere offers” (or fraudulent offers) to sell narcotics. 15
Under New York law, the offer must be “bona fide,” and a 16
bona fide offer is one that is made with the intent and 17
ability to follow through on the transaction. See People v. 18
Samuels, 99 N.Y.2d 20, 24, 780 N.E.2d 513 (2002); People v. 19
Mike, 92 N.Y.2d 996, 998, 706 N.E.2d 1189 (1998). A 20
violation of NYPL § 220.39 is therefore categorically 21
conduct within the INA definition of drug trafficking. 22
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III 1
Pascual and amici also argue on rehearing that a 2
conviction under NYPL § 220.39 does not necessarily reflect 3
the “substantial step” in selling drugs that is an element 4
of the analogous federal offense, see United States v. 5
Delvecchio, 816 F.2d 859, 861-62 (2d Cir. 1987). 6
As our earlier opinion stated, federal law proscribes 7
an attempted transfer of a controlled substance. See 8
Pascual, 707 F.3d at 405 (citing 21 U.S.C. § 841(a)(1)). A 9
defendant is guilty of attempted distribution if he (1) had 10
the intent to commit the crime, and (2) “engaged in conduct 11
amounting to a ‘substantial step’ towards the commission of 12
the crime.” United States v. Martinez, 775 F.2d 31, 35 (2d 13
Cir. 1985). “[A] substantial step must be something more 14
than mere preparation, yet may be less than the last act 15
necessary before the actual commission of the substantive 16
crime.” Id. (citations and quotation marks omitted). 17
Pascual relies on Delvecchio, which instructs that an 18
attempt entails some “overt act” to carry out the offense, 19
816 F.2d at 862. Without doubt, an offer to sell drugs-- 20
made with the intent and ability to carry out the 21
transaction--is both a “substantial step” and an “overt act” 22
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in the attempted sale of a controlled substance. See United 1
States v. Evans, 699 F.3d 858, 868 (6th Cir. 2012) (“An 2
offer to sell a controlled substance is an act perpetrated 3
in furtherance of a sale, typically as part of the 4
negotiation for the price and quantity, and it is therefore 5
a substantial step in attempting to consummate a sale.”). 6
Pascual’s argument is therefore meritless. 7
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IV 9
Amici advance several reasons why we should abandon a 10
categorical approach to convictions under NYPL § 220.39: 11
• Thousands of aliens like Pascual will lose the 12
opportunity to seek discretionary relief from removal. But 13
this impact is negligible because non-citizens who sell 14
drugs in the United States (or make bona fide offers to sell 15
drugs) are unlikely to be strong candidates for 16
discretionary relief. 17
• Fear of conviction for an aggravated felony inhibits 18
aliens from entering guilty pleas, thus burdening the 19
courts. But this burden is offset (and then some) by the 20
efficiencies inherent in a categorical approach, which 21
avoids “the practical difficulties and potential unfairness 22
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of a factual approach,” Taylor v. United States, 495 U.S. 1
575, 601 (1990). 2
• A prior conviction for an aggravated felony greatly 3
increases the maximum sentence for illegal re-entry and 4
makes it easier for a criminal defendant to achieve the 5
status of recidivist and career criminal. But these 6
consequences are not unintended. 7
* * * 8
Finally, Pascual submitted a letter to the Court 9
pursuant to Fed. R. App. P. 28(j) drawing our attention to 10
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which held 11
that “[s]haring a small amount of marijuana for no 12
remuneration” qualifies as only a misdemeanor under the CSA, 13
and therefore does not amount to an aggravated felony under 14
the INA. Id. at 1693. Moncrieffe does not aid Pascual 15
because NYPL § 220.39 criminalizes offers to sell narcotics. 16
See infra pp. 6-7. Accordingly, we adhere to our conclusion 17
that Pascual’s petition for relief from removal was properly 18
dismissed. 19
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