Fernando Guzman-Lopez v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3477
FERNANDO GUZMAN-LOPEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency No. A91-709-157)
Immigration Judge: Honorable Andrew Arthur
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 9, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: September 9, 2009)
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

-- 1 of 3 --

1 We determined that the alien’s conviction in Jeune was not an aggravated felony
because 21 U.S.C. § 841(b)(1)(D) and (b)(4) establish an exception for distributing small
amounts of marihuana without remuneration - such offenses are punished as
misdemeanors. Jeune, 476 F.3d at 205. In Jeune, it was not clear from the record
whether remuneration was involved or whether the marihuana involved was more than a
small amount. Section 841 does not provide such an exception for cocaine, the drug
involved in Guzman-Lopez’s conviction.
2
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). We 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

-- 2 of 3 --

2 Because § 841(b)(1)(C) allows for prosecution of the distribution of any amount of
cocaine, we need not reach Guzman-Lopez’s arguments regarding whether his conviction
involved enough cocaine to be prosecuted under § 841(b)(1)(A)(ii) or (B)(ii).
3 Because Guzman-Lopez is an aggravated felon, our review of the BIA’s denial of
relief is limited to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C).
Guzman-Lopez does not raise any such claims.
3
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.

-- 3 of 3 --