Mark Smart v. Eric Holder, Jr. , 504 F. App'x 660 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK DEVON SMART, a.k.a. Mark No. 11-70051
Smart,
Agency No. A034-347-072
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 30, 2012**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Mark Smart, a native and citizen of Belize, petitions pro se for review of a
decision by the Board of Immigration Appeals (“BIA”). Smart raises the same
arguments before this Court that he raised before the BIA. The BIA upheld the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
immigration judge’s ruling that Smart’s conviction for possession of marijuana for
sale, in violation of California Health and Safety Code § 11359, constituted a drug
trafficking crime and therefore was an aggravated felony under 8 U.S.C. §
1101(a)(43)(B), rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). The
BIA also rejected Smart’s due process claim. To the extent Smart challenges these
holdings, we have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Kwong v. Holder,
671 F.3d 872, 876 (9th Cir. 2011); see also Kin v. Holder, 595 F.3d 1050 (9th Cir.
2010); Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873 (9th Cir. 2008). However,
to the extent Smart raises other issues, we do not have jurisdiction to consider
them. 8 U.S.C. § 1252(a)(2)(C).
Where, as here, the BIA writes its own decision and does not adopt the
immigration judge’s decision, we review the BIA’s decision only. See Aden v.
Holder, 589 F.3d 1040, 1043 (9th Cir. 2009). We review de novo the BIA’s
conclusions regarding questions of law, including due process claims and the
question of whether an offense qualifies as an aggravated felony. Kwong, 671 F.3d
at 876; Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006).
Smart contends that he was not convicted of an aggravated felony. We
reject this contention. Smart’s attempt to vacate his conviction for possession of
marijuana for sale, in violation of California Health and Safety Code § 11359, was
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unsuccessful and he therefore has a conviction for purposes of determining
whether he was convicted of an aggravated felony. See 8 U.S.C. §
1101(a)(48)(A)(i); Planes v. Holder, 652 F.3d 991, 995-97 (9th Cir. 2011). A state
offense qualifies as an aggravated felony if it proscribes conduct that would be
punishable as a felony under the Controlled Substances Act. Lopez v. Gonzales,
549 U.S. 47, 55-60 (2006). A violation of California Health and Safety Code §
11359 would be punishable as a felony under 21 U.S.C. § 841(a)(1) and (b)(1)(D).
See United States v. Martinez-Rodriguez, 472 F.3d 1087, 1096 (9th Cir. 2007)
(recognizing that California’s possession for sale statute closely mirrors the federal
statute that criminalizes possession with intent to distribute); compare United
States v. Diaz-Cardenas, 351 F.3d 404, 407 (9th Cir. 2003) (holding that the
elements of possession with intent to distribute under § 841(a)(1) are: (1)
knowingly possessing a controlled substance; (2) with intent to deliver it to another
person) with People v. Harris, 83 Cal. App. 4th 371, 374 (2000) (holding that
unlawful possession of marijuana for sale requires proof that the defendant
possessed the contraband with the intent of selling it and with knowledge of both
its presence and illegal character).
Contrary to Smart’s contentions, his offense is not comparable to the
misdemeanor provisions set forth in 21 U.S.C. § 841(b)(4). By its plain language,
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§ 841(b)(4) applies only to distribution of marijuana, see 21 U.S.C. § 841(b)(4),
and section 11359 does not prohibit the distribution of marijuana, see California
Health and Safety Code § 11359. We therefore hold that Smart was convicted of
an aggravated felony.
We also reject Smart’s due process challenge. Smart was not prevented
from reasonably presenting his case. See Ibarra-Flores, 439 F.3d at 620.
Moreover, it was not a denial of due process for the agency to rely on the
rebuttable presumption that a drug trafficking offense is a particularly serious
crime. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949-50 (9th Cir. 2007).
PETITION FOR REVIEW DENIED.
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