Martinez v. Attorney Gen.

• Decision Date: 16 October 2018
• Docket Number: No. 17-3434,17-3434
• Citation: 906 F.3d 281
• Parties: Alexis Leopold MARTINEZ, Petitioner v. ATTORNEY GENERAL, United States of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

906 F.3d 281

Alexis Leopold MARTINEZ, Petitioner

v.ATTORNEY GENERAL, United States of America, Respondent

No. 17-3434

United States Court of Appeals, Third Circuit.

Argued September 6, 2018

Filed: October 16, 2018

Whitney W. Elliott, Esq., Legal Aid Society, Immigration Law Unit, 199 Water Street, New York, NY 10038, Melika Hadziomerovic, Esq., George W. Kroup, Esq. [ARGUED], William B. Michael, Esq., Paul Weiss Rifkind Wharton & Garrison, 1285 Avenue of the Americas, New York, NY 10019, Counsel for Petitioner.

Matthew B. George, Esq. [ARGUED], Jane T. Schaffner, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

We must decide whether New Jersey's drug-trafficking law criminalizes more conduct than the federal one. Under the categorical approach, a state-law conviction makes an alien removable if its elements are no broader than those of a qualifying federal crime. Moncrieffe v. Holder , 569 U.S. 184, 190-91, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). Alexis Martinez contends that he is not removable because the New Jersey drug-trafficking law of which he was convicted is broader than its federal counterpart. First, he argues that although both laws extend to attempts, New Jersey's attempt law is broader because it sweeps in mere preparation and solicitation. But both laws track the Model Penal Code, treating some preparation and solicitations as attempts if they are substantial steps toward a crime. So the laws are coextensive.

Second, Martinez argues that New Jersey's list of drugs includes a substance not found on the current federal list. But we look to the lists on the date of his conviction. On that date, the New Jersey list was no broader than the federal list. So Martinez was convicted of a controlled-substance offense, making him removable. That crime was also an aggravated felony, making him ineligible for cancellation of removal.

I. BACKGROUND

Martinez is a citizen of the Dominican Republic and a lawful permanent resident of the United States. In 2005, he and his confederates sold one kilogram of cocaine to an undercover detective and a cooperating witness. He was charged with four crimes under New Jersey law: possessing cocaine, N.J. Stat. Ann. § 2C:35-10(a)(1) ; possessing cocaine with intent to distribute, id. § 2C:35-5(a)(1), (b)(1); distributing cocaine, id. ; and conspiring to possess cocaine with intent to distribute, id. § 2C:5-2. For the latter three counts, the court instructed the jury that it could convict Martinez for attempting to transfer cocaine or to aid another in distributing cocaine. The jury convicted on all four counts, and the judge sentenced Martinez to twenty years' imprisonment.

In 2010, the Department of Homeland Security charged Martinez as removable on two grounds: First, the government claimed that Martinez's drug-distribution convictions under N.J. Stat. Ann. § 2C:35-5(a)(1) & (b)(1) match the federal Controlled Substances Act's ban on drug trafficking, 21 U.S.C. § 841(a)(1). If that is true, then Martinez was convicted of an aggravated felony, making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43)(B). Second, the government claimed that Martinez's convictions relate to federally controlled substances. See 21 U.S.C. § 802(6). If that is true, then Martinez was convicted of a controlled-substance offense, making him removable under 8 U.S.C. § 1227(a)(2)(B)(i).

The immigration judge sustained the charges. Martinez appealed, raising the arguments outlined above. The Board of Immigration Appeals rejected both arguments on the merits, and Martinez petitions for review.

Because Martinez raises questions of law, we have jurisdiction to review the Board's final order. 8 U.S.C. § 1252(a). We review de novo. Singh v. Att'y Gen. , 839 F.3d 273, 282 (3d Cir. 2016).

II. NEW JERSEY'S ATTEMPT LAW IS NO BROADER THAN FEDERAL LAW

Martinez argues that he was not convicted of an aggravated felony. Under the categorical approach, "[w]e look ‘not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.’ " Id. at 278 (quoting Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678 ). We "presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether" the generic federal offense encompasses "even those acts." Id.

Here, Martinez's drug-distribution convictions could have rested on a mere attempt. And Martinez does not dispute that the New Jersey and federal drug-distribution laws are materially identical in most respects. Compare 21 U.S.C. § 841(a)(1)with N.J. Stat. Ann. § 2C:35-5(a)(1). But he contends that they treat attempt differently.

A. Both New Jersey and federal attempt law follow the Model Penal Code

So Martinez must show that New Jersey's attempt law is broader than federal attempt law. He cannot. Both jurisdictions follow the Model Penal Code's approach to attempts.

The Model Penal Code defines an "attempt" as a purposeful act or omission that "constitut[es] a substantial step in a course of conduct planned to culminate in [the] commission of the crime." Model Penal Code § 5.01(1)(c). It defines a "substantial step" as an act that is "strongly corroborative of the actor's criminal purpose." Id. § 5.01(2). It also lists seven actions that may satisfy that requirement. Id. That list includes solicitation. Id.

Federal attempt law follows that framework. Most federal courts follow the Model Penal Code's doctrine of attempt liability. See United States v. Dworken , 855 F.2d 12, 16 (1st Cir. 1988) (collecting cases from seven circuits); Ming Lam Sui v. INS , 250 F.3d 105, 116 (2d Cir. 2001) (using the Model Penal Code's definition of attempt under the Immigration and Nationality Act). Our circuit likewise applies the Model Penal Code's approach to the Controlled Substances Act. United States v. Glass , 904 F.3d 319, 323, No. 16-2906, 2018 WL 4443889, at *3 n.3 (3d Cir. Aug. 22, 2018). So we too require a "substantial step toward commission of the crime" that "strongly corroborat[es] the firmness of a defendant's criminal purpose." United States v. Cicco , 10 F.3d 980, 985 (3d Cir. 1993).

New Jersey has adopted that definition almost verbatim by statute. It defines attempt as a purposeful "act or omission constituting a substantial step in a course of conduct planned to culminate in [the] commission of the crime." N.J. Stat. Ann. § 2C:5-1(a)(3). And a "substantial step" must be "strongly corroborative of the actor's criminal purpose." Id. § 2C:5-1(b). It does not include the Model Penal Code's list of seven examples that can qualify as substantial steps, including solicitation. But the lack of a list of illustrations makes no difference. See State v. Sunzar , 331 N.J.Super. 248, 751 A.2d 627, 632 (1999) (stating that the omission of the Model Penal Code's list of examples does not prevent solicitation from amounting to attempt). There is no daylight between the federal and New Jersey formulations.

Martinez offers two responses. Neither is convincing.

B. New Jersey law does not reach more preparation than federal law

Martinez first responds that New Jersey law treats more forms of inchoate preparation for a crime as attempt than federal law does. In support, he cites State v. Fornino , 223 N.J.Super. 531, 539 A.2d 301 (1988). In dicta, Fornino stated: "It is only ‘very remote preparatory acts’ which are excluded from the ambit of attempt liability." Id. at 306 (quoting 2 New Jersey Penal Code Commentary 118 (1971) ). But that was a case about plain error. The defendant argued that the trial court should have instructed the jury that "preparation is insufficient ... for an attempt." Id. The defendant had not objected, how-ever. So the court found only that the failure to give the instruction was not plain error. Id. It did not have occasion to affirmatively define attempt liability. Fornino simply noted that "some preparation may amount to an attempt. It is a question of degree." Id. (quoting State v. Mandujano , 499 F.2d 370, 377 (5th Cir. 1974) ). So New Jersey courts wrestle with drawing that line, just as federal courts and the Model Penal Code do.

If Fornino left any doubt, the New Jersey Supreme Court has since resolved it. In State v. Farrad , the court stated that New Jersey law "distinguish[es] between mere preparation and the substantial step requirement of an attempt." 753 A.2d 648, 653 (N.J. 2000). Farrad held there was enough evidence of at-tempted robbery when the defendant surveilled a restaurant, covered his face, and walked up to the cashier with a loaded gun. Id. at 659. That evidence "demonstrated a purpose to rob and substantial steps that were taken toward completion of the intended robbery." Id. This reasoning tracks that of the Model Penal Code and federal law. So the most recent explanation by New Jersey's highest court mirrors federal law: a substantial step is required.

C. Both New Jersey and federal law treat some solicitations as attempts

Martinez's second, stronger response is that New Jersey attempt law extends beyond federal law because New Jersey considers solicitation to be attempt. But solicitation does not amount to an attempt unless it is "strongly corroborative of the actor's criminal purpose." State v. Sunzar , 331 N.J.Super. 248, 751 A.2d 627, 632 (1999). "[M]ere solicitation, even when unaccompanied by any other act in furtherance, can constitute an attempt." Id. (emphasis added). So not all solicitations qualify. The strongly-corroborative requirement "protects against criminal liability for idle requests that are not meant to be taken seriously." Id. (citing Fornino , 539 A.2d at 306 ).

New Jersey's approach, like that of federal law,...