Ferreira v. Ashcroft, 02-16945.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Tashima |
| Citation | 382 F.3d 1045 |
| Parties | Manuel Joaquin Oliveira FERREIRA, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee. |
| Docket Number | No. 02-16945.,02-16945. |
| Decision Date | 09 September 2004 |
v.
John ASHCROFT, Attorney General, Respondent-Appellee.
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James Todd Bennett, Esq., El Cerrito, CA, for the petitioner-appellant.
Joan G. Ruffennach, Esq., Assistant United States Attorney, Phoenix, AZ, for the respondent-appellee.
Appeal from the United States District Court for the District of Arizona; Mary H. Murguia, District Judge, Presiding. D.C. No. CV 01-1903 MHM.
Before: HUG, B. FLETCHER, and TASHIMA, Circuit Judges.
TASHIMA, Circuit Judge:
Manuel Oliveira is a permanent resident alien who was ordered removed to Portugal after his 1998 conviction in California state court for possession of methamphetamine. In a petition for a writ of habeas corpus, he argued that the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") erred in concluding that he was an aggravated felon, because his conviction was a "wobbler" offense that the state court had sentenced as a misdemeanor. The district court denied his petition, ruling that Oliveira's conviction constituted an aggravated felony because it was a controlled substance offense that was punishable by more than one year's imprisonment under state law. We reverse. Oliveira's offense of conviction is not an aggravated felony because it would not be punishable as a felony under federal drug laws and does not contain a trafficking element.
Oliveira is a native and citizen of Portugal who was admitted to the United States in 1966, at age eleven, as a lawful permanent resident alien. Both of his children are United States citizens, and his parents and siblings are either United States citizens or permanent resident aliens. The entire family resided in the San Jose, California area. Prior to his removal in 2002, Oliveira had never returned to Portugal.
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In August 1994, Oliveira pleaded guilty in Wyoming state court to three misdemeanors: driving with a suspended license, carrying a concealed weapon, and possession of marijuana. Upon judgment of conviction, the court sentenced him to county jail for ten days on the weapon offense and ten days on the drug offense, the two sentences to run concurrently with credit for time served. The maximum possible sentence for the drug possession offense was six months. Wyo. Stat. Ann. § 35-7-1031(c) (1994).
In May 1998, Oliveira again pleaded guilty to possession of a controlled substance, methamphetamine, this time in violation of California Health and Safety Code § 11377(a). The statute provided that offenders "shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison." Cal. Health & Safety Code § 11377(a) (1998). The court sentenced Oliveira to four months in the county jail and three years' probation. He also pleaded guilty to being under the influence of a controlled substance, in violation of California Health and Safety Code § 11550(a).
After Oliveira had finished serving his jail sentence, the Immigration and Naturalization Service ("INS") placed him in a detention facility in Eloy, Arizona, and initiated removal proceedings against him. The INS filed a notice to appear, asserting that Oliveira's 1998 controlled substance conviction made him removable under 8 U.S.C. § 1227(a)(2)(B)(i). Oliveira admitted the factual allegations in the notice to appear and conceded removability, but moved for cancellation of removal under 8 U.S.C. § 1229b(a). The INS argued to the IJ that Oliveira was ineligible for cancellation of removal because the Wyoming conviction for possession of a controlled substance and the California conviction for possession of a controlled substance together constituted an aggravated felony.
At Oliveira's cancellation of removal hearing, the IJ ruled that the two convictions for simple possession together constituted an aggravated felony. The IJ came to this conclusion based on our decision in United States v. Garcia-Olmedo, 112 F.3d 399, 400-01 (9th Cir.1997), which we have since implicitly overruled. See United States v. Corona-Sanchez, 291 F.3d 1201, 1209 (9th Cir.2002) (en banc) (holding that, in determining whether an offense is an aggravated felony, "we must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements"). The IJ therefore denied Oliveira's application for cancellation of removal and ordered him to be removed to Portugal.
Oliveira filed a timely appeal with the BIA, which affirmed the IJ's ruling. Oliveira then filed a petition for review with this Court, but we dismissed the petition for lack of jurisdiction.1
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Oliveira then filed this habeas petition contending that his detention based on the order of removal violated the Constitution and laws of the United States. Among other things, he argued that his Wyoming marijuana possession conviction could not serve as a predicate offense to a finding that his second possession conviction was an aggravated felony.
The magistrate judge assigned to the case recommended that Oliveira's petition be denied. The magistrate judge concluded that Oliveira's 1998 conviction for possession of methamphetamine alone constituted an aggravated felony because California classified the crime as a felony. In addition, the magistrate judge concluded that the conviction was a felony under federal law, because Oliveira had a prior conviction for drug possession.
The district court denied Oliveira's habeas petition. Although it agreed with the magistrate judge's ultimate conclusion that Oliveira was an aggravated felon, it based its decision on different legal grounds. The court noted that under our cases interpreting the federal sentencing guidelines, an offense is an aggravated felony if it (1) is prohibited under the federal Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801-904, and (2) is punishable by more than one year of imprisonment under federal or state law. The court found that possession of methamphetamine is prohibited under 21 U.S.C. § 844(a), and that under California law the crime is punishable by more than one year's imprisonment. The district court therefore concluded that Oliveira's 1998 conviction for possession of methamphetamine was an aggravated felony. This...
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