Garcia v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 1, 2004
• Docket: 03-3285
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Garcia-Echaverria v. United States No. 03-3285 ELECTRONIC CITATION: 2004 FED App. 0204P (6th Cir.) File Name: 04a0204p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Lawrence J. Kiroff, ASSISTANT UNITED FOR THE SIXTH CIRCUIT STATES ATTORNEY, Toledo, Ohio, for Appellee. Marco _________________ A. Garcia-Echaverria, El Paso, Texas, pro se.

MARCO GARCIA - X _________________ ECHA VERRIA , - OPINION Petitioner-Appellant, - _________________ - No. 03-3285 - KAREN NELSON MOORE, Circuit Judge. Marco Garcia- v. > , Echaverria (“Garcia-Echaverria”), pro se Petitioner- - Appellant, appeals the district court’s denial of his petition for UNITED STATES OF AMERICA , - habeas corpus relief. Garcia-Echaverria was sentenced for a Respondent-Appellee. - conviction of unlawful reentry, in violation of 8 U.S.C. - § 1326(b), and the Immigration and Naturalization Service N (“INS,” now the Department of Homeland Security “DHS,”) Appeal from the United States District Court has reinstated the prior Final Order of Removal. On appeal, for the Northern District of Ohio at Toledo. Garcia-Echaverria argues that his initial removal was No. 02-07228—John W. Potter, District Judge. unlawful, and therefore that his current detention is unconstitutional. Garcia-Echaverria contends that his initial Submitted: April 23, 2004 removal was unlawful because the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) erred by Decided and Filed: July 1, 2004 concluding that Garcia-Echaverria’s Kentucky drug conviction constitutes an “aggravated felony,” making him Before: MERRITT and MOORE, Circuit Judges; ineligible for relief from deportation/removal.1 Garcia- DUGGAN, District Judge.* Echaverria also argues that his initial removal was unlawful

1 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) adopted “the term ‘removal,’ which essentially eliminated a distinction that formerly existed between ‘deportation’ proceedings and ‘exclusion p roceed ings.’ Thus, a determination whether an alien is ‘inadmissible’ (i.e., cannot, or did not, enter the country lawfully), or ‘deportable’ (i.e., entered the country lawfully but is no * longer entitled to stay), would be determined through ‘remo val’ The Honorable Patrick J. Duggan, United States District Judge for proceed ings.” Balogun v. U. S. Att’y Gen., 304 F.3d 130 3, 13 06-0 7 (11th the Eastern District of Michigan, sitting by designation. Cir. 2002) (citations omitted).

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because (1) the line that 8 U.S.C. § 1182(h) draws between December 16, 1996, to the charge of “Trafficking Marijuana illegal aliens (“non-LPRs”) and lawful permanent residents over 8 ounces, less than 5 pounds,” in violation of K.R.S. (“LPRs”) violates the Equal Protection Clause of the Fifth 218A.1421(3). Joint Appendix (“J.A.”) at 141-42. On Amendment; and (2) application of the provisions of the January 10, 1997, the Kentucky Circuit Court sentenced Antiterrorism and Effective Death Penalty Act of 1996 Garcia-Echaverria to five years of imprisonment for his (“AEDPA”) and the Illegal Immigration Reform and Kentucky drug conviction. Immigrant Responsibility Act of 1996 (“IIRIRA”), which make Garcia-Echaverria ineligible for relief from On May 13, 1997, the INS issued Garcia-Echaverria a deportation/removal, raises retroactivity concerns.2 Notice to Appear, charging that he was removable due to his Kentucky drug conviction under two sections of the For the following reasons, we AFFIRM the district court’s Immigration and Nationality Act (“INA”) — decision denying Garcia-Echaverria’s petition for habeas § 237(a)(2)(A)(iii) (codified as 8 U.S.C. § 1227(a)(2)(A)(iii)) corpus relief. for being convicted of an “aggravated felony” and § 237(a)(2)(B)(i) (codified as 8 U.S.C. § 1227(a)(2)(B)(i)) for I. BACKGROUND being convicted of a controlled substance offense. On September 7, 1999, an IJ ordered Garcia-Echaverria removed Garcia-Echaverria, a native and citizen of Mexico, entered from the United States. On July 20, 2000, the BIA dismissed the United States on or about January 1, 1980, and became a Garcia-Echaverria’s appeal, finding that a waiver of lawful permanent resident on or about January 26, 1990.3 On inadmissibility pursuant to § 212(c) of the INA (originally January 6, 1997, Garcia-Echaverria was convicted by the codified as 8 U.S.C. § 1182(c), but repealed by the IIRIRA, State of Kentucky pursuant to a guilty plea, entered on 104 Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)), was not available to him, and that he was statutorily ineligible for cancellation of removal pursuant to § 240A(a) of the INA 2 In his appe al of the district court’s denial of his habeas petition, (codified at 8 U.S.C. § 1229b). Garcia-Echaverria also argues that his initial removal was unlawful because the INS removed him while his Kentucky drug conviction was on Garcia-Echaverria was found in the United States on direct appeal, while his app eal of the BIA ’s orde r of removal and his motion for a stay of removal were pending before the United States Court August 31, 2001, when he was stopped for speeding by of Appeals for the Fifth Circuit, after the United States District Court for officers of the Ohio Highway Patrol at Fremont, Ohio. On the Southern District of N ew Y ork (“S .D.N .Y.”) had tra nsferred his October 3, 2001, a grand jury returned a one-count habeas petition to the United States District Court for the Western District indictment, charging Garcia-Echaverria with being an alien of Louisiana, and after the S.D.N.Y. had issued a stay of removal. These found in the United States on or about August 31, 2001, after issues are discussed fully in Un ited States v. G arcia -Echav erria, 03-3655, Garcia-Echaverria’s direct appeal of his conviction for unlawful reentry. having been deported for committing an “aggravated felony” and without obtaining permission to reenter from the Attorney 3 In this opinion, we recount only the facts relevant to the issues we General, in violation of 8 U.S.C. § 1326(b). After his motions are addressing solely in G arcia-E chaverria’s appeal of the district co urt’s to dismiss the indictment were denied, Garcia-Echaverria denial of his habeas petition. Our opinion in United States v. Garcia- pleaded guilty on September 10, 2002, to the charge of Ech averria, 03-3 655, includes a more complete statement of facts, unlawful reentry, and the district court sentenced him to including those bearing on issues that Garcia-Echaverria raised in both his thirty-seven months of imprisonment. Prior to pleading direct appeal of his conviction for unlawful reentry and his appeal of the denial of his habeas petition. guilty, Garcia-Echaverria filed on May 3, 2002, in the No. 03-3285 Garcia-Echaverria v. United States 5 6 Garcia-Echaverria v. United States No. 03-3285

Northern District of Ohio, a petition for a writ of habeas filed his habeas petition challenging the constitutionality of corpus challenging his current detention. On December 30, his confinement, the district court had jurisdiction pursuant to 2002, the district court denied Garcia-Echaverria’s petition 28 U.S.C. § 2241.4 for habeas corpus. Garcia-Echaverria filed a timely notice of appeal. This court has jurisdiction over the appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Subsequent to this case being II. JURISDICTION submitted on the briefs, Garcia-Echaverria completed his sentence for his § 1326(b) conviction, and Garcia-Echaverria The district court had jurisdiction over Garcia-Echaverria’s is currently being detained by the DHS pending his removal. habeas petition pursuant to 28 U.S.C. § 2241. Garcia- Garcia-Echaverria’s completion of his criminal sentence Echaverria filed both a direct appeal of his conviction for neither deprives us of jurisdiction over this appeal nor moots unlawful reentry and a habeas petition challenging his current the claims asserted in the habeas petition that we are detention. Typically, a federal prisoner may file a § 2241 reviewing in this appeal. Rosales-Garcia v. Holland, 322 petition contesting the legality of his detention only if his F.3d 386, 394-96, 395 n.6 (6th Cir.) (en banc), cert. denied, claim is such that he cannot obtain effective relief on direct 539 U.S. 941 (2003). We review de novo questions of appeal or through a § 2255 motion. Paulino v. United States, statutory interpretation raised in a § 2241 petition. Mustata, 352 F.3d 1056, 1060-61 (6th Cir. 2003); Bannerman v. 179 F.3d at 1019. Snyder, 325 F.3d 722, 723 (6th Cir. 2003). While an alien may file a § 2241 petition challenging his removal III. ANALYSIS proceedings, an alien is not “in custody” for removal purposes if he is detained pursuant to a sentence for a criminal Garcia-Echaverria argues that the BIA erred by concluding conviction, even if the INS has filed a detainer order with the that his Kentucky drug conviction was an “aggravated prison where the petitioner is incarcerated. Zolicoffer v. U.S. felony,” making him both deportable and ineligible for relief Dep’t of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003) from deportation/removal. Although Garcia-Echaverria (collecting cases); Prieto v. Gluch, 913 F.2d 1159, 1163-64 concedes that his drug conviction is a felony under Kentucky (6th Cir. 1990), cert. denied, 498 U.S. 1092 (1991). In this law, he argues that it does not constitute an “aggravated case, however, at the time Garcia-Echaverria filed his § 2241 felony” within the meaning of 8 U.S.C. § 1101(a)(43)(B) petition, the INS had already reinstated Garcia-Echaverria’s because the offense to which he pleaded guilty did not contain prior Final Order of Removal. The IIRIRA requires the INS a trading or dealing element nor would it have been to take custody of and commence procedures to execute the punishable as a felony under federal law. removal of an alien who is subject to a final order of removal based upon a conviction for an “aggravated felony.” The BIA correctly determined that Garcia-Echaverria’s Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003); see also Kentucky drug conviction constitutes an “aggravated felony” Mustata v. U.S. Dep’t of Justice, 179 F.3d 1017, 1022 n.4 (6th Cir. 1999). This requirement was strong evidence of the 4 DHS’s intention to take custody of Garcia-Echaverria Because Garcia-Echaverria was convicted of unlawful reentry, he immediately following the conclusion of his sentence, and had the opportunity in his direct appeal to attack collaterally the legality thus satisfies the custody requirement for a § 2241 petition. of his prior deportation. We co nclude, however, that the district court’s jurisdiction over a § 2241 petition should not turn upon the par ticular Because Garcia-Echaverria was in INS custody at the time he crime of which the petitioner has been convicted. No. 03-3285 Garcia-Echaverria v. United States 7 8 Garcia-Echaverria v. United States No. 03-3285

within the meaning of the INA. The term “aggravated ‘aggravated felony.’ In contrast, several Courts of felony” is defined through a list of qualifying offenses, which Appeals have interpreted the same language in includes: “illicit trafficking in a controlled substance (as § 924(c)(2), albeit in the Sentencing Guidelines context, defined in section 802 of Title 21), including a drug to require that the state drug conviction need only be a trafficking crime (as defined in section 924(c) of Title 18).” felony under state law and that the state crime be 8 U.S.C. § 1101(a)(43)(B). In § 924(c), “the term ‘drug punishable under the federal Controlled Substances Act, trafficking crime’ means any felony punishable under the either as a felony or a misdemeanor. Controlled Substances Act (21 U.S.C. 801 et seq.),” or one of two other federal acts not relevant here. 18 U.S.C. Gerbier, 280 F.3d at 299 (emphases in original). The Third § 924(c)(2). Circuit has held that for deportation purposes, the BIA’s interpretation of § 924(c)(2) is correct. Id. There is some conflict regarding what elements must be present in order for a state offense to constitute a drug- Under the BIA’s approach, a state drug conviction trafficking crime within the meaning of 8 U.S.C. constitutes an “aggravated felony” under either of two § 1101(a)(43)(B). United States Sentencing Guideline routes. Under the first route, a felony state drug (“U.S.S.G.”) § 2L1.2 requires a sentencing enhancement to be conviction is an “aggravated felony” under § 924(c)(2) if imposed for the crime of unlawful reentry, if the alien was it contains a trafficking element. Under the second route, deported after having committed a drug-trafficking crime. a state drug conviction, either a felony or a misdemeanor, Several circuits have held that in the sentencing context, the is an “aggravated felony” if it would be punishable as a phrase “drug trafficking crime” includes offenses that would felony under the Controlled Substances Act. be punishable under the Controlled Substances Act (or two other federal acts not relevant here), so long as the offense is Id. punishable as a felony under either state or federal law. Gerbier v. Holmes, 280 F.3d 297, 299 (3d Cir. 2002). Under We have not taken a position, in either the Sentencing this interpretation, a drug offense that is punishable as a Guidelines context or the removal context, regarding what felony under state law could be considered an “aggravated elements must be present in order for a state crime to felony,” for purposes of applying the enhancement contained constitute a drug-trafficking crime within the meaning of in U.S.S.G. § 2L1.2, even if the conduct would have only 8 U.S.C. § 1101(a)(43)(B), although we have held that at a been punishable as a misdemeanor under federal law. Id. minimum, a state conviction resulting from the sale of drugs for money qualifies. Nakhleh v. INS, 38 F.3d 829, 831 (6th The Third Circuit has defined 8 U.S.C. § 1101(a)(43)(B) Cir. 1994). It is clear, however, that the BIA’s approach is differently for deportation purposes. Id. According to the more favorable towards aliens. Because we do not think that Third Circuit, Garcia-Echaverria can succeed under even the BIA’s more favorable approach, we will assume for the limited purpose of The BIA has interpreted § 924(c)(2) to require that, for this appeal that the BIA’s approach applies. deportation purposes, a state drug conviction, whether it be a felony or a misdemeanor, must either contain a Garcia-Echaverria’s conviction may not constitute an “trafficking” component or be punishable as a felony “aggravated felony” under the “trafficking” route. Garcia- under federal law in order for it to constitute an No. 03-3285 Garcia-Echaverria v. United States 9 10 Garcia-Echaverria v. United States No. 03-3285

Echaverria pleaded guilty to K.R.S. 218A.1421(3), which indicates that the proper analogue is actually 21 U.S.C. provides: § 841(b). Section 844(a) provides: Trafficking in eight (8) or more ounces but less than five It shall be unlawful for any person knowingly or (5) pounds of marijuana is: intentionally to possess a controlled substance unless (a) For a first offense a Class D felony. such substance was obtained directly, or pursuant to a (b) For a second or subsequent a Class C felony. valid prescription or order, from a practitioner, while acting in the course of his professional practice. . . . Any For purposes of K.R.S. 218A.1421, the term “traffic” “means person who violates this subsection may be sentenced to to manufacture, distribute, dispense, sell, transfer, or possess a term of imprisonment of not more than 1 year, and with intent to manufacture, distribute, dispense, or sell a shall be fined a minimum of $1,000, or both . . . . controlled substance.” K.R.S. 218A.010(28). It is undisputed that Garcia-Echaverria’s conviction was a felony under Section 841(a)(1) makes it unlawful to knowingly or Kentucky law, but the parties disagree over whether the intentionally, “manufacture, distribute, or dispense, or possess offense contained a trafficking element. According to the with intent to manufacture, distribute, or dispense, a Third Circuit, trafficking requires “unlawful trading or controlled substance.” (emphasis added). Section dealing of a controlled substance.” Gerbier, 280 F.3d at 305. 841(b)(1)(D), the applicable penalty provision, further Garcia-Echaverria could have been convicted of violating provides: K.R.S. 218A.1421(3) for possession with intent to sell. Indeed, Garcia-Echaverria’s indictment charges him with In the case of less than 50 kilograms of marihuana . . . “knowingly and unlawfully traffick[ing] in marijuana by one such person shall, except as provided in paragraphs pound of marijuana in his possession for purpose of resale.” (4) and (5) of this subsection, be sentenced to a term of J.A. at 48. It is not clear whether possession with intent to imprisonment of not more than 5 years, a fine not to resell constitutes “unlawful trading or dealing,” and thus exceed the greater of that authorized in accordance with trafficking under this route. See Gerbier, 280 F.3d at 313 the provisions of Title 18, or $250,000 if the defendant is (suggesting that “possession with intent to distribute” may an individual . . . . constitute trading or dealing ). But see Wilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir. 2003) (remanding to the district To be convicted pursuant to KRS 218A.1421(3), Garcia- court for consideration in the first instance of the question Echaverria must have, at a minimum, possessed with an intent whether a conviction for possession with intent to distribute to distribute, etc. between eight ounces and five pounds of marijuana contains a trading and dealing element). marijuana. Therefore, Garcia-Echaverria was punishable pursuant to 21 U.S.C. § 841(b)(1)(D), which carries a Garcia-Echaverria’s conviction, however, constitutes an maximum punishment of five years, and thus constitutes a “aggravated felony” under the “hypothetical federal felony” felony pursuant to 18 U.S.C. § 3559, which provides that a route, making him both removable and ineligible for relief federal offense is a felony if its maximum penalty is greater from removal. Although Garcia-Echaverria asserts that the than one year. proper federal analogue for his Kentucky drug conviction is 21 U.S.C. § 844, an examination of the applicable statutes It is true that § 841(b)(4) provides: No. 03-3285 Garcia-Echaverria v. United States 11 12 Garcia-Echaverria v. United States No. 03-3285

Notwithstanding paragraph (1)(D) of this subsection, any It is true that 8 U.S.C. § 1182(h) treats differently LPRs and person who violates subsection (a) of this section by non-LPRs, in that it allows the Attorney General to grant an distributing a small amount of marihuana for no adjustment of status to some non-LPRs who have been remuneration shall be treated as provided in section 844 convicted of an “aggravated felony,” but prohibits the of this title and section 3607 of Title 18. Attorney General from granting relief to LPRs who have been convicted of an “aggravated felony.” While a district court in (emphasis added). Garcia-Echaverria did not assert in his our circuit has held that this distinction violates equal appellate brief that he falls within this escape-hatch provision. protection, Roman v. Ashcroft, 181 F. Supp. 2d 808, 812-14 Moreover, we conclude that his Kentucky drug conviction, (N.D. Ohio 2002), vacated on other grounds, 340 F.3d 314 which involved at least eight ounces of marijuana, does not (6th Cir. 2003), several other circuits have held that this fall within this provision,5 and thus the proper federal distinction survives the applicable rational-review standard. analogue for Garcia-Echaverria’s Kentucky drug conviction Dipeppe v. Quarantillo, 337 F.3d 326, 331-32 (3d Cir. 2003); is § 841(b)(1)(D). Therefore, Garcia-Echaverria’s Kentucky Lukowski v. INS, 279 F.3d 644, 647 (8th Cir. 2002); Lara- drug conviction constitutes an “aggravated felony” under this Ruiz v. INS, 241 F.3d 934, 946-48 (7th Cir. 2001); Moore v. route.6 Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001). Next, Garcia-Echaverria argues that denying him relief We have not yet ruled on this issue, and we may not do so from deportation/removal pursuant to 8 U.S.C. § 1182(h) in this case because Garcia-Echaverria does not have standing violated his rights under the Equal Protection Clause of the raise this challenge. Section 1182(h) allows the Attorney Fifth Amendment. Although Garcia-Echaverria concedes that General to grant an adjustment of status to some non-LPRs statutes that draw distinctions between different classes of who have been convicted of certain crimes, including a aliens are subjected only to rational review, he argues that the violation of a law relating to a controlled substance, but only distinction that 8 U.S.C. § 1182(h) draws between LPRs and “insofar as it relates to a single offense of simple possession non-LPRs is not rationally related to any legitimate of 30 grams or less of marijuana.” See 8 U.S.C. government interest. § 1182(a)(2)(A)(i)(II) and (h). In 1996, § 348 of the IIRIRA amended 8 U.S.C. § 1182(a) to prohibit the Attorney General from granting a similar waiver to LPRs.7 Garcia-Echaverria 5 W e have no binding precedent defining “small amount” within the meaning of § 841(b)(4). Garcia-Echaverria, however, possessed at least 7 Section 348(a) of the IIRIRA provides: “No waiver shall be granted eight ounces, which is not a “small amount.” The escape-hatch provision under this subsection in the case of an alien who has previously been is designed to address the casual sharing of marijuana; behavior that is admitted to the United States as an alien lawfully admitted for permanent akin to mere possession rather than distribution. Although distribution of residence if either since the date of such admission the alien has been eight ounces of marijuana may be a small-scale drug transaction, convicted of an aggravated felony or the alien has not lawfully resided distribution of eight ounces is more than casual sharing. continuously in the United States for a period of not less than 7 years 6 imme diately preceding the date of initiation of proceedings to remove the But see W ilson v. Ashcroft, 350 F.3d 377, 382 (3d Cir. 2003) alien from the United States. No court shall have jurisdiction to review (holding that pursuant to § 841(b)(4), the proper federal analogue for a a decision of the Attorney General to grant or deny a waiver und er this state conviction for possession with intent to distribute more than one subsection.” IIRIRA, Pub. L. No. 104-208 , § 348(a), 110 Stat. 3009 ounce but less than five pounds of marijuana w as 21 U .S.C. § 84 4 beca use (1996). This limitation became effective immediately upon the enactment the state offense failed to include remuneration as an element). of the IIR IRA in Sep tember 19 96. See id. at § 348(b). No. 03-3285 Garcia-Echaverria v. United States 13 14 Garcia-Echaverria v. United States No. 03-3285

was convicted of possession with intent to distribute at least of the AEDPA9 made him ineligible for a discretionary eight ounces of marijuana; therefore, he would not have been waiver of deportation. AEDPA, Pub. L. No. 104-132, eligible for an adjustment of status, even if he were a non- § 440(d), 110 Stat. 1214 (1996); 8 U.S.C. § 1227(a)(2)(A)(iii) LPR, and regardless of the limitation imposed by § 348 of the and (B). St. Cyr aids only those aliens whose “convictions IIRIRA. Because Garcia-Echaverria would not have been eligible for an adjustment of status even if he were a non- LPR, he lacks standing to raise this challenge. 9 Prior to the enactment of the AEDP A, § 212(c) of the INA (codified at 8 U.S.C. § 118 2(c)(1995)) allowed the Attorney Genera l to exercise his Garcia-Echaverria also argues that denying him the discretion and waive the deportation of a lawful permanent resident alien, opportunity to apply for a waiver of deportation pursuant to meeting certain requirements, who was excludable by reason of having § 212(c) of the INA had an impermissible retroactive effect com mitted an “aggravated felony,” except the Attorney General had no because he committed his Kentucky drug offense prior to the discretion to admit: an alien who has been convicted of one or more aggravated repeal of that provision by the IIRIRA. felonies and has served for such felony or felonies a term of imprisonm ent of at least 5 years. It is true that INS v. St. Cyr, 533 U.S. 289, 321-22 (2001), 8 U.S.C. § 1 182 (c)(1995 ); St. Cyr, 533 U.S. at 294-95 (explaining that held that denying some aliens the opportunity to apply for a although § 212(c) on its face only ap plies to exclusion proceedings, it had waiver of deportation pursuant to § 212(c) of the INA has an been interpreted as allowing lawful permanent residents to seek a waiver impermissible retroactive effect. St. Cyr held that denying the of deportation). At that time, the term “aggravated felony” included, “illicit trafficking in a controlled substance (as defined in section 102 of opportunity to apply for § 212(c) relief to aliens who had the Controlled Substances Act [21 USC S § 802 ]), including a drug pleaded guilty in reliance upon the opportunity to apply for trafficking crime (as defined in section 924(c) of title 18, United States such relief would disrupt the quid pro quo of plea bargaining. Code).” 8 U.S.C. § 110 1(a)(43)(B)(19 95). An alien convicted of illicit Id. at 321-24. By the time Garcia-Echaverria committed his trafficking of a co ntrolled substance, however, would have remained Kentucky drug offense on May 31, 1996,8 and certainly by eligible for discretionary waiver of deportation if he had served less than five years of imprisonment. 8 U.S.C. § 1182(c)(199 5). the time he pleaded guilty on December 16, 1996, § 440(d) Section 440(d) of the AEDP A narrowed the Attorney Genera l’s discretion, prohibiting the Attorney General from waiving the deportation of a lawful permanent resident, who was excludable by reasons of having committed “any criminal offense covered in section 241 (a)(2)(A)(iii) [“aggravated felony”], (B) [controlled substance conviction],” etc., At the time Garcia-Echaverria committed his offense conduct on May regardless of whether he had served five years of impriso nment. AEDPA, 31, 1996, and when he pleaded guilty of December 16, 1996, the Attorney Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (1996); 8 U.S.C. General was prohibited from granting a waive r to aliens who had been § 1227 (a)(2)(A)(iii) and (B). convicted of a controlled substance offense, except for simple possession Section 304 of the IIRIRA repealed § 2 12(c) of the INA and replaced of less than thirty grams of marijuana. 8 U.S.C. § 118 2(h)(1995). it with 8 U.S.C. § 1229b, which prohibits the Attorney General from Although it does not appear that G arcia-Echaverria has raised a cancelling the removal of an alien who has ever “been convicted of any retroa ctivity argument regarding § 348 of the IIRIRA, any such argument aggravated felony.” 8 U.S.C. § 1229b(a)(3); IIRIRA, Pub. L. No. 104- would be without merit due to the fact that he was ineligible for such 208, § 304(a)-(b), 110 Stat. 3009 (1996). With some exceptions not relief prior to the enactment of the IIRIRA. relevant here, this provision did not become effective until April 1, 1997, 8 and by its terms applied to removal proceedings that commenced on or W e note that the Supreme Co urt’s retroactivity analysis in St. Cyr, after that date. Id. at § 309(a). As discussed in St. Cyr, 533 U.S. at 321- 533 U.S. 289, 320-23 (2 001 ), turned upon the timing of the d efendant’s 26, this provision raised retroactivity concerns when applied to some plea in relation to the repeal of § 212(c) relief, not upon the timing of the aliens, but it does not raise retroactivity concerns when applied to Garcia- defendant’s criminal conduct in relation to the repeal of § 212(c). Echaverria. No. 03-3285 Garcia-Echaverria v. United States 15

were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for [discretionary cancellation of removal] at the time of their plea under the law then in effect.” 533 U.S. at 326 (emphasis added). Because he pleaded guilty and became ineligible for a waiver of deportation after the AEDPA was enacted on April 24, 1996, denying Garcia-Echaverria relief from deportation/removal does not raise any retroactivity concerns. Although Garcia-Echaverria was convicted pursuant to a guilty plea prior to the effective date of the IIRIRA, he could not have pleaded guilty in reliance on his ability to obtain a discretionary cancellation of removal because under the AEDPA he was not eligible for relief at the time he pleaded guilty. IV. CONCLUSION For the forgoing reasons, we AFFIRM the district court’s denial of Garcia-Echaverria’s petition for a writ of habeas corpus.