344 F. App'x 838

Fernando GUZMAN-LOPEZ, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-3477.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAE 34.1(a) Sept. 9, 2009.

Filed: Sept. 9, 2009.

Sandra L. Greene, Esq., Greenefitzger-ald Advocates and Consultants, York, PA, for Petitioner.

Richard M. Evans, Esq., Brooke M. Maurer, Esq., Benjamin Zeitlin, Esq., United States Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Fernando Guzman-Lopez petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Guzman-Lopez was admitted to the United States in 1990 as a lawful permanent resident. In 2006, he was charged as removable as an aggravated felon based on his state court conviction for delivery of cocaine. An Immigration Judge (IJ) found Guzman-Lopez removable and ineligible for cancellation of removal. The BIA agreed with the IJ and dismissed the appeal. Guzman-Lopez filed a timely petition for review.

We have jurisdiction to consider whether Guzman-Lopez is an aggravated felon and exercise plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462 F.3d 287, 290-91 (3d Cir.2006). If a state court conviction would be punishable as a felony under the federal Controlled Substance Act, it qualifies as an aggravated felony. Evanson v. Attorney General, 550 F.3d 284, 289 (3d Cir.2008). Guzman-Lopez was convicted of the unlawful delivery of 105 grams of cocaine in violation of 35 PA. STAT. ANN. § 780-113(a)(30). *839We have held that a conviction under that statute is analogous to 21 U.S.C. § 841(a)(1). Jeune v. Attorney General, 476 F.3d 199, 205 (3d Cir.2007).1 Section 841(a)(1) proscribes, inter alia, the distribution of cocaine.

Citing 18 U.S.C. § 3559, Guzman-Lopez argues that the amount of cocaine he was convicted of delivering would not necessarily be punishable as a felony under federal law because § 841(b)(1)(C), which sets the penalty for distributing any amount of cocaine,2 does not provide for a minimum sentence of at least a year. However, Section 3559(a)(3) provides that if the maximum term of imprisonment authorized for an offense is “less than twenty-five years but ten or more years,” the offense is graded as a Class C felony. Section 841(b)(1)(C) provides for a maximum sentence of twenty years, which is less than twenty-five years but more than ten years. Thus, a violation of 841(a) involving a detectable amount of cocaine is a Class C felony. Because Guzman-Lopez’s conviction would be punishable as a federal felony, he is an aggravated felon, removable as such, and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3).3

For the above reasons, we will deny the petition for review.

Guzman-Lopez v. Attorney General of United States
344 F. App'x 838

Case Details

Name
Guzman-Lopez v. Attorney General of United States
Decision Date
Sep 9, 2009
Citations

344 F. App'x 838

Jurisdiction
United States

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