Mendieta-Robles v. Gonzales , 226 F. App'x 564 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0387n.06
Filed: June 12, 2007
No. 06-3467
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BENJAMIN MENDIETA-ROBLES )
)
Petitioner, )
)
v. ) ON REVIEW FROM THE
) BOARD OF IMMIGRATION
ALBERTO R. GONZALES, Attorney General, ) APPEALS
)
Respondent. )
BEFORE: KEITH and COLE, Circuit Judges; and OLIVER, District Judge.*
R. GUY COLE, JR., Circuit Judge. Benjamin Mendieta-Robles, a lawfully admitted alien
from Mexico, petitions this Court for review of a final order of the Board of Immigration Appeals
(“BIA”), affirming an immigration judge’s order that he be removed as an aggravated felon.
Mendieta-Robles pleaded guilty to selling or offering to sell 1,000 grams of cocaine, a felony under
Ohio Revised Code (“ORC”) § 2925.03(A)(1). The immigration judge determined that this
conviction qualified as a drug-trafficking “aggravated felony” under section 101(a)(43)(B) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), subjecting Mendieta-Robles
to deportation. 8 U.S.C. § 1227(a)(2)(A)(iii). Because we hold that Mendieta-Robles’s Ohio
conviction does not qualify as an aggravated felony under the INA, we REVERSE the BIA’s order
*
The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
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dismissing Mendieta-Robles’s appeal and REMAND this case to the BIA for entry of an order
terminating deportation proceedings against Mendieta-Robles.
I. BACKGROUND
Mendieta-Robles, a citizen and native of Mexico, was lawfully admitted to the United States
in 1996 as a conditional resident and adjusted to permanent-resident status in 1999.
In October 2002, Mendieta-Robles was arrested and charged in a two-count indictment with
(1) trafficking in cocaine, and (2) possession of cocaine, in violation of ORC §§ 2925.03 and
2925.11, respectively. Count One read as follows:
Benjamin Medieta . . . , on or about the 8th day of October in the year of our lord,
2002, within the county of Franklin aforesaid, in violation of section 2925.03 of the
Ohio Revised Code, did knowingly sell or offer to sell a controlled substance
included in Schedule II, to wit: methylbenzoylecgonine, commonly known as cocaine
in an amount equal to or exceeding one thousand(1,000) grams of cocaine as defined
in section 2925.01 of the Ohio Revised Code . . . .
(JA 105.) In September 2003, Mendieta-Robles pleaded guilty to Count One only, without
specification, a felony in the first degree. The Franklin County Court of Common Pleas sentenced
Mendieta-Robles to four years’ imprisonment and suspended his drivers license for six months.
Soon after, the Department of Homeland Security initiated removal proceedings against
Mendieta-Robles, under 8 U.S.C. § 1227(a)(2)(A)(iii), as an admitted alien who had been convicted
of an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43). Specifically, the definition of
aggravated felony includes “drug trafficking crimes” and crimes involving “illicit trafficking in a
controlled substance.” 8 U.S.C. § 1101(a)(43)(B). At his removal hearing, Mendieta-Robles
conceded that he was convicted under ORC § 2925.03(A)(1) of knowingly selling or offering to sell
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a controlled substance, and did not contest the amount of the controlled substance. Mendieta-Robles
argued, however, that the statute was divisible and that a mere offer to sell is not an aggravated
felony. On October 20, 2003, an immigration judge concluded that Mendieta-Robles’s conviction
under ORC § 2925.03(A)(1) qualified as an aggravated felony and ordered Mendieta-Robles
removed to Mexico. Mendieta-Robles timely appealed to the BIA.
The BIA affirmed the immigration judge’s order and dismissed Mendieta-Robles’s appeal,
concluding that Mendieta-Robles had been convicted of an aggravated felony within the meaning
of the INA and Sixth Circuit law. Mendieta-Robles timely appealed.
II. DISCUSSION
We review de novo whether a state drug conviction qualifies as an aggravated felony under
the INA. Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005) (“[T]he BIA’s ultimate conclusion that
a particular state conviction amounts to an aggravated felony conviction within the meaning of
§ 1227(a)(2)(A)(iii) is reviewed de novo because such a conclusion depends upon interpreting state
statutes and federal statutes unrelated to immigration.” (citing Chery v. Ashcroft, 347 F.3d 404, 407
(2d Cir. 2003))).
An admitted alien may be deported if he is convicted of an “aggravated felony.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The INA defines a multitude of offenses that qualify as aggravated
felonies—for example, murder, rape, laundering over $10,000, managing a prostitution business, and
commercial counterfeiting. See 8 U.S.C. § 1101(a)(43). Certain drug offenses may also amount to
aggravated felonies if they fall within the following definition: “illicit trafficking in a controlled
substance (as defined in [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18
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U.S.C. § 924(c)]).” 8 U.S.C. § 1101(a)(43)(B). In 18 U.S.C. § 924(c)(2), “the term ‘drug trafficking
crime’ means any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.),”
or two other federal acts not relevant here. The term “aggravated felony” applies to violations of
both federal and state law. 8 U.S.C. § 1101(a)(43).
We have interpreted the INA’s definition to provide two routes for a state drug conviction
to qualify as an aggravated felony. United States v. Palacios-Suarez, 418 F.3d 692, 697 (6th Cir.
2005); Garcia-Echaverria v. United States, 376 F.3d 507, 512 (6th Cir. 2004); accord Gerbier v.
Holmes, 280 F.3d 297, 299 (3d Cir. 2002). Under the first route—the “illicit trafficking”
approach—a state drug conviction is an aggravated felony if it is (1) a felony under state law, and
(2) contains a trafficking element. See Garcia-Echaverria, 376 F.3d at 512; Gerbier, 280 F.3d at
299. Under the second route—the “hypothetical federal felony” or “hypothetical felony”
approach—a state drug conviction is an aggravated felony if it would be punishable as a felony under
the Controlled Substances Act, regardless of whether the conviction is a felony or a misdemeanor
under state law. See Garcia-Echaverria, 376 F.3d at 512; Gerbier, 280 F.3d at 299. The question
then is whether Mendieta-Robles’s state drug conviction under ORC § 2925.03 qualifies as an
aggravated felony under either of these approaches.
To determine whether a prior conviction should be considered an aggravated felony for
deportation purposes, we start with the analytical model constructed by the United States Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990). See, e.g., Martinez-Perez v. Gonzales, 417
F.3d 1022, 1025-26 (9th Cir. 2005); Singh v. Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004); cf. United
States v. Sanders, 470 F.3d 616, 619 (6th Cir. 2006) (employing Taylor’s approach to determine
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whether a state conviction was a “violent felony” under the Armed Career Criminal Act). Under this
categorical approach, an adjudicator “must look only to the statutory definitions of the prior
offenses,” and may not “consider other evidence concerning the defendant’s prior crimes,” including
“the particular facts underlying [the] conviction[].” Taylor, 495 U.S. at 600. In some cases,
however, “the language of the particular subsection of 8 U.S.C. § 1101(a)(43) at issue will invite
inquiry into the underlying facts of the case,” or “the disjunctive phrasing of the statute of conviction
will similarly invite inquiry into the specifics of the conviction.” Singh, 383 F.3d at 148. In these
cases, courts have interpreted “Taylor’s edict to include examination of documentation or judicially
noticeable facts that clearly establish that the conviction is a predicate conviction . . . , such as the
indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from
the plea proceedings[.]” United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (internal
quotations marks, alterations, and citation omitted); accord Shepard v. United States, 544 U.S. 13,
26 (2005) (explaining that in a nonjury case, a court might examine not only the “charging
document” but also “the terms of a plea agreement,” the “transcript of colloquy between judge and
defendant,” or “some comparable judicial record” of information about the “factual basis for the
plea”).
Therefore, we must first analyze the statute that formed the basis of Mendieta-Robles’s
conviction. ORC § 2925.03 is a broad statute that reads in relevant part as follows: “No person shall
knowingly . . . [s]ell or offer to sell a controlled substance[.]” ORC § 2925.03(A)(1). The statute
punishes a broad range of conduct: an individual can be convicted under it for either selling drugs
or merely offering to sell drugs, without possession or even transfer to a buyer. State v. Chandler,
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846 N.E.2d 1234, 1236-37 (Ohio 2006). Indeed, ORC § 3719.01(AA) defines “sale” extremely
broadly to include delivery, barter, exchange, transfer, or even gift. Under the statute, the offense
is complete when an offer is made with the requisite intent—neither delivery of the drug, exchange
of money, nor a direct unequivocal act towards a sale are necessary elements of the offense. See,
e.g., Chandler, 846 N.E.2d at 1236-37. This means, for instance, that a mere offer to give away
marijuana falls within the ambit of ORC § 2925.03(A)(1).
The relevant documents and judicially noticeable facts do not indicate whether Mendieta-
Robles was convicted of selling or merely offering to sell cocaine. Mendieta-Robles pleaded guilty
to Count One only: “in violation of section 2925.03 . . . [Mendieta-Robles] did sell or offer to sell
at least one thousand (1,000) grams of cocaine that is not crack cocaine . . . .” (JA 105.) No other
documents help clarify whether Mendieta-Robles did anything more than offer 1,000 grams of
cocaine for sale, exchange, barter, or gift. Nothing in the record indicates whether Mendieta-Robles
even possessed cocaine. To be sure, Mendieta-Robles did not plead guilty to Count 2 (possession
of cocaine). The only indication that Mendieta-Robles may have done more than simply offer to gift
cocaine is the title of Ohio’s statutory section to which he pleaded: “Trafficking offenses.” ORC §
2925.03. How a state titles its statutory provisions, however, is irrelevant for determining the nature
of the statute a defendant was convicted under. See Warner v. Zent, 997 F.2d 116, 133 (6th Cir.
1993) (“Such headings, however, do not constitute any part of Ohio law. Resort to a title in
construing a statute is unnecessary and improper.”). Indeed, the Ohio legislature has stated, “Title,
Chapter, and section headings and marginal General Code section numbers do not constitute any part
of the law as contained in the ‘Revised Code.’” ORC § 1.01.
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We now turn to whether Mendieta-Robles’s Ohio conviction qualifies as an aggravated
felony under the two routes: (1) the “illicit trafficking” approach, and (2) the “hypothetical federal
felony” approach. We conclude that it does not.
A. “Illicit Trafficking” Approach
Under the “illicit trafficking” approach, a state drug conviction is an aggravated felony if it
is (1) a felony under state law, and (2) contains a trafficking element. Garcia-Echaverria, 376 F.3d
at 512; Gerbier, 280 F.3d at 299. Here, there is no question that Mendieta-Robles’s conviction under
ORC § 2925.03(A)(1) was a felony. The parties dispute, however, whether his conviction contains
a trafficking element.
Mendieta-Robles’s conviction does not contain a trafficking element. A trafficking element
involves the “unlawful trading or dealing of a controlled substance.” Garcia-Echaverria, 376 F.3d
at 513 (citing Gerbier, 280 F.3d at 305). “Essential to the concept of trading or dealing is activity
of a business or merchant nature, thus excluding simple possession or transfer without
consideration.” Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001) (internal quotation marks and
citation omitted). As already noted, ORC § 3719.01(AA) defines “sale” extremely broadly to
include delivery, barter, exchange, transfer, or even gift. Thus, an individual may be convicted under
ORC § 2925.03(A)(1) without the offered transfer being commercial in nature—Mendieta-Robles
could merely have offered to gift 1,000 grams of cocaine. Consistent with this, neither possession
nor exchange is a prerequisite to punishment under ORC § 2925.03(A)(1). Chandler, 846 N.E.2d
at 1236-37.
The Attorney General argues that Mendieta-Robles’s conviction falls within the definition
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of “illicit trafficking” because either portion of the statute—selling or merely offering to sell
cocaine—is, at least, “an attempt to sell cocaine for consideration—i.e. unlawful trading or dealing
for profit.” (Att’y Gen. Br. 10 (underline omitted).) This argument, however, ignores ORC
§ 3719.01(AA), which defines “sale” to include gift—a form of transfer that does not require
consideration. See, e.g., Guethlein v. Ohio State Liquor Control Comm., No. 05AP-888, 2006 WL
827434, at *3 (Ohio App. Mar. 30, 2006) (“The usual and customary meaning of ‘gift’ is a
‘voluntary transfer of property to another made gratuitously and without consideration.’” (quoting
Black’s Law Dictionary 688 (6th ed. 1990))).
Accordingly, an individual may be convicted under ORC § 2925.03(A)(1) without trading
or dealing in a controlled substance for profit. Here, neither the relevant documents nor judicially
noticeable facts indicate whether Mendieta-Robles engaged in commercial trading or dealing of
cocaine. Mendieta-Robles’s conviction is therefore insufficient to establish that the underlying crime
involved “illicit trafficking.” See, e.g., Rivera-Sanchez, 247 F.3d at 908 (“[I]f the statute and the
judicially noticeable facts would allow the defendant to be convicted of an offense other than that
defined as a qualifying offense . . . , then the conviction does not qualify as a predicate offense.”
(internal quotation marks and citation omitted)). Thus, under the “illicit trafficking” approach, his
conviction does not qualify as an aggravated felony.
B. “Hypothetical Federal Felony” Approach
Under the “hypothetical federal felony” approach, a state drug conviction is an aggravated
felony if it would be punishable as a felony under the Controlled Substances Act, regardless of
whether the conviction is a felony or a misdemeanor under state law. Garcia-Echaverria, 376 F.3d
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at 512; Gerbier, 280 F.3d at 299. This approach “‘require[s] a comparison between the elements of
the [state] drug offense and [the elements of] a federal drug provision referenced in 18 U.S.C. §
924(c)(2) . . . .’” Steele, 236 F.3d at 136 (quoting Matter of Davis, 20 I. & N. Dec. 536, 541, 1992
WL 443920 (BIA 1992)). In making this determination, the BIA “looks to what the convicting court
must necessarily have found to support the conviction and not to other conduct in which the
defendant may have engaged in connection with the offense.” Id.
The Attorney General argues that, as the BIA found, Mendieta-Robles’s state conviction is
analogous to a felony conviction under two sections of the Controlled Substances Act: 21 U.S.C. §§
841(a)(1) and 846. We hold that neither are analogous.
As an initial matter, § 841(a)(1) is not analogous to ORC § 2925.03(A)(1). Section 841(a)(1)
makes it unlawful for any person to knowingly or intentionally “manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” “The term
‘distribute’ means to deliver . . . a controlled substance . . . .” 21 U.S.C. § 802(11). Because ORC
§ 2925.03(A)(1) encompasses convictions where the individual neither possessed nor transferred a
controlled substance, it is difficult to see how 21 U.S.C. § 841(a)(1) is analogous to the Ohio statute.
It would mean that offering to sell cocaine is the same as delivering cocaine.
Moreover, the relevant documents and judicially noticeable facts fail to establish that
Mendieta-Robles had the requisite mens rea to commit a distribution crime. To be convicted under
ORC § 2925.03(A)(1), an individual need only intend to offer to sell a controlled substance.
Chandler, 846 N.E.2d at 1236-37; see also State v. Mughni, 514 N.E.2d 870, 872 (Ohio 1987)
(holding that an offense is complete under ORC 2925.03(A)(1) when a person knowingly offers to
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sell a controlled substance); State v. Scott, 432 N.E.2d 798, 799 (Ohio 1982) (“The proscribed
conduct is offering to sell a controlled substance, not offering the controlled substance. Therefore,
our analysis of the statute should not turn on whether appellant transferred a controlled substance.”).
On the other hand, under § 841(a)(1), an individual must intend to or knowingly distribute a
controlled substance. 21 U.S.C. § 841 (“[I]t shall be unlawful for any person to knowingly or
intentionally . . . distribute . . . a controlled substance . . . .”); accord, e.g., United States v. Pope, 561
F.2d 663, 670 (6th Cir. 1977) (“The ‘intent to distribute’ is an essential element of § 841(a)(1). . .
. 21 U.S.C. § 841(a)(1) requires both general criminal intent and the specific ‘intent to distribute’
before a violation is proven.”). Thus, the mens rea elements of each crime are substantially different.
That is, an individual may be convicted under § 2925.03(A)(1) without having any intent to
distribute a controlled substance. Cf. United States v. Garza, 410 F.3d 268, 274–76 (5th Cir. 2005)
(holding that offers to transport, sell, furnish, administer or give away a controlled substance do not
fall within the definition of “drug trafficking offense” under U.S.S.G. § 2L1.2); United States v.
Foster, No. 93-50402, 1994 WL 201201, at *1 (9th Cir. May 23, 1994) (“ORC § 2925.03(A)(4) falls
short of the federal definition of a controlled substance offense. It does not require the State to prove
an intent to distribute.”).
The Attorney General’s argument that Mendieta-Robles’s Ohio conviction is analogous to
a conviction under § 846 must fail for the same reason. To be convicted of attempted distribution,
the Government must prove that (1) the defendant acted “with the kind of culpability otherwise
required for the commission of the crime which he is charged with attempting,” and (2) the
defendant “engaged in conduct constituting a substantial step toward commission of the crime . . . .”
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United States v. Stone, 960 F.2d 426, 433 (5th Cir.1992) (quotation marks and citation omitted); see
also, e.g., United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003) (“An attempt to commit a crime,
which is recognized as a crime distinct from the crime intended by the attempt, punishes conduct that
puts in motion events that would, from the defendant’s point of view, result in the commission of
a crime but for some intervening circumstance.”). Because, here, a hypothetical conviction under
§ 846 would require the government to prove that Mendieta-Robles acted with the same mens rea
as a conviction under § 841, and because, as already noted, the mens rea elements of § 841 and ORC
§ 2925.03(A)(1) are substantially different, Mendieta-Robles’s Ohio conviction would also not be
punishable as a felony under § 846.
C. Matter of Garcia-Torres
A recent BIA decision supports our analysis. In Matter of Garcia-Torres, No. A45-864-724,
(BIA Oct. 19, 2006), the BIA held that there was insufficient evidence to conclude that Garcia-
Torres’s two convictions under ORC § 2925.03(A) qualified as an “aggravated felony” under the
INA. The BIA first addressed the “hypothetical federal felony” approach. The BIA explained that
offering to sell a controlled substance can be simplified to a verbal or written communication, which
entails no physical delivery of a controlled substance, and, without the act of delivery, Garcia-Torres
could not be found to have distributed cocaine. Similarly, the BIA also concluded that Garcia-
Torres’s conviction did not amount to an aggravated felony under the “illicit drug trafficking”
approach. The BIA found that the record failed to disclose whether Garcia-Torres was convicted of
selling cocaine for profit. The BIA noted that it is possible for an individual to be convicted under
ORC § 2925.03(A)(1) without trading or dealing in a controlled substance for profit. Even though
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the BIA found that the record did not support a conclusion that Garcia-Torres’s conviction qualified
as an aggravated felony, the BIA remanded the case to the immigration court to allow both parties
the opportunity to introduce evidence as to whether either of Garcia-Torres’s convictions qualified
as an aggravated felony under the INA.
Although we agree with the BIA’s analysis in Garcia-Torres, a remand in this case is
unnecessary. As already noted, reviewing courts “must look only to the statutory definitions of the
prior offenses,” and may not “consider other evidence concerning the defendant’s prior crimes,”
including, “the particular facts underlying [a] conviction[].” Taylor, 495 U.S. at 600. Only in
limited circumstances may courts look beyond the conviction and examine documentation or
judicially noticeable facts that clearly establish the conviction as a predicate conviction, such as the
indictment, the judgment of conviction, a signed guilty plea, or the transcript from the plea
proceedings. Rivera-Sanchez, 247 F.3d at 908. Because, in this case, the relevant documents are
already part of the record, a remand to supplement the record is unnecessary. We have a complete
record with which to make a final determination.
D. Two Recent Supreme Court Decisions
Finally, the Attorney General calls our attention to two recent Supreme Court decisions:
Gonzales v. Duenas-Alvarez, 549 U.S. ____, 127 S. Ct. 815 (2007), and James v. United States, 549
U.S. ____, 127 S. Ct. 1586 (2007). Neither helps the Attorney General.
In Duenas-Alvarez, the Supreme Court addressed whether a conviction for aiding and
abetting a theft, under California law, qualified as a “generic theft offense” under the INA. 127 S.
Ct. at 820. In holding that the California conviction qualified, the Supreme Court rejected Duenas-
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Alvarez’s argument that the California statute, under which he was convicted, punished conduct
outside the scope of generic definition of theft (as the term is now used in the criminal codes of most
states). Id. at 822. The Supreme Court explained that,
[m]oreover, in our view, to find that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires more than the application of
legal imagination to a state statute’s language. It requires a realistic probability, not
a theoretical possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime. To show that realistic possibility, an
offender, of course, may show that the statute was so applied in his own case. But
he must at least point to his own case or other cases in which the state courts in fact
did apply the statute in the special (nongeneric) manner for which he argues.
Id.
The Attorney General takes Duenas-Alvarez to mean that we should proceed assuming
Mendieta-Robles was convicted of selling cocaine instead of offering to sell cocaine because it is
less likely he was simply a cocaine offerer—despite the relevant documents’ silence as to the
specifics of Mendieta-Robles’s conviction. This argument fails for two reasons. First, it requires
us to ignore the clear language of ORC § 2925.03(A)(1) (“No person shall . . . [s]ell or offer to sell
a controlled substance”), which expressly and unequivocally punishes both sales and offers. Second,
that a defendant could be convicted under ORC § 2925.03(A)(1) for offering to sell a controlled
substance is not a “theoretical possibility,” nor does it require “the application of legal imagination.”
Rather, as the Ohio Supreme Court has repeatedly stated, “[u]ndoubtedly, a person can be convicted
for offering to sell a controlled substance in violation of [ORC] § 2925.03(A)(1) without actually
transferring a controlled substance to the buyer.” Chandler, 846 N.E.2d at 1236-37; accord, e.g.,
Mughni, 514 N.E.2d at 872; Scott, 432 N.E.2d at 799. Thus, Duenas-Alvarez is inapposite.
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Neither does James v. United States assist the Attorney General. In James, the Supreme
Court addressed whether attempted burglary, under Florida law, is a “violent felony” under the
Armed Career Criminal Act. 127 S. Ct. at 1590. In holding that the Florida attempted-burglary
statute did qualify as a “violent felony,” the Supreme Court explained that Taylor’s categorical
approach does not “require[] that every conceivable factual offense covered by a statute . . .
necessarily present a serious potential risk of injury before the offense can be deemed a violent
felony.” Id. at 1597 (citing Duenas-Alvarez, 127 S. Ct. at 815). “Rather, the proper inquiry is
whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another.” Id. (emphasis added).
Here, the Attorney General relies on James to contend that “selling” is the ordinary
conviction under ORC § 2925.03(A)(1) and “offering to sell” is merely a conceivable factual offense
covered by the statute. We do not agree for the same two reasons that Duenas-Alvarez is inapposite.
First, “offering to sell” is more than a conceivable factual offense covered by ORC § 2925.03(A)(1).
Section 2925.03(A)(1) by its own terms expressly contemplates and punishes offers to sell. ORC
§ 2925.03(A)(1) (“No person shall . . . [s]ell or offer to sell a controlled substance”). Moreover, as
noted, the Ohio Supreme Court has repeatedly stated that an offense under section 2925.03(A)(1)
is complete merely by making an offer to sell. See, e.g., Chandler, 846 N.E.2d at 1236-37; Mughni,
514 N.E.2d at 872; Scott, 432 N.E.2d at 799.
III. CONCLUSION
For the foregoing reasons, we REVERSE the BIA’s order dismissing Mendieta-Robles’s
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appeal and REMAND this case to the BIA for entry of an order terminating deportation proceedings
against Mendieta-Robles.
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