PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-1292
GUSTAVO CUCALON,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-2206
On Petitions for Review of an Order of the Board of Immigration Appeals.
Argued: October 30, 2019 Decided: May 7, 2020
Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges. Petitions for review denied by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Richardson concurred.
ARGUED: Benjamin James Osorio, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Melissa K. Lott, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mark Stevens, MURRAY OSORIO PLLC, Fairfax, Virginia, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Keith I. McManus, Assistant Director, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
2 BARBARA MILANO KEENAN, Circuit Judge:
Gustavo Cucalon, a native and citizen of Nicaragua, petitions for review of a final
order of removal issued by the Board of Immigration Appeals (BIA). The BIA concluded
that Cucalon’s conviction in 2006 for distribution of cocaine as an accommodation, in
violation of Virginia Code § 18.2-248(D), rendered him removable as an alien convicted
of an “aggravated felony,” and as an alien convicted of a crime “relating to a controlled
substance.” See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). In Cucalon’s view,
because Virginia prohibits the distribution of more substances than those prohibited under
federal law, a conviction under Virginia Code § 18.2-248 does not categorically qualify as
an “aggravated felony” or as a crime “relating to a controlled substance” under the
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i).
Upon our review, we conclude that Virginia Code § 18.2-248 is divisible by
prohibited substance. Applying the modified categorical approach, we hold that
distribution of cocaine under Virginia Code § 18.2-248, including distribution of that
substance as an accommodation under Virginia Code § 18.2-248(D), satisfies the federal
definitions of an “aggravated felony” and of a crime “relating to a controlled substance.”
We also conclude that the BIA did not abuse its discretion in denying Cucalon’s motion to
reconsider. We therefore deny Cucalon’s petitions for review.
I.
Cucalon has been a lawful permanent resident of the United States since 1987. He
was convicted in 2006 of distribution of cocaine as an accommodation, in violation of
3 Virginia Code § 18.2-248(D). In 2017, the Department of Homeland Security charged
Cucalon with removability on two grounds: (1) as an alien convicted of an aggravated
felony, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii); and (2) as an alien convicted of a crime
relating to a controlled substance, pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).
Cucalon moved to terminate his removal proceedings, asserting that his conviction
under Virginia Code § 18.2-248 did not qualify as an aggravated felony or as a crime
relating to a controlled substance. The immigration judge (IJ) applied the modified
categorical approach set forth in Descamps v. United States, 133 S. Ct. 2276 (2013), to
both grounds of removability, and found that Cucalon was removable as charged. The BIA
applied a different analysis to the aggravated felony ground, but ultimately affirmed the
IJ’s order of removal with respect to both grounds of removability. Cucalon later filed a
petition for review with this Court.
Two days before filing his petition for review, Cucalon filed a motion for
reconsideration with the BIA, asserting several new arguments and offering new evidence
not presented in his initial administrative appeal. The BIA found that Cucalon had waived
these arguments by failing to present them in a timely manner and that, in any event, the
new issues lacked merit. Cucalon filed a second petition for review in this Court,
challenging the BIA’s denial of his motion to reconsider. We consolidated the two
petitions.
II.
4 Cucalon challenges the BIA’s determination that his conviction under Virginia
Code § 18.2-248 rendered him removable as an aggravated felon and as an alien convicted
of a crime relating to a controlled substance. He argues that because the Virginia statute
prohibits distribution of a wider range of substances than prohibited under federal law, his
conviction does not qualify under the INA as an aggravated felony, here, a drug trafficking
crime, or as a crime relating to a controlled substance. 8 U.S.C. §§ 1101(a)(43)(B),
1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). Cucalon also argues that the Virginia statute is not
divisible by prohibited substance and that, therefore, we should not apply the modified
categorical approach. We disagree with Cucalon’s arguments.
A.
In general, we lack jurisdiction to review an order of removal based on an alien’s
conviction of an aggravated felony or of a crime relating to a controlled substance. See 8
U.S.C. § 1252(a)(2)(C); Larios-Reyes v. Lynch, 843 F.3d 146, 152 (4th Cir. 2016). We
nevertheless have jurisdiction to review constitutional claims and questions of law,
including the question whether an alien’s conviction qualifies under either or both these
categories of removable offenses. 8 U.S.C. § 1252(a)(2)(D); Larios-Reyes, 843 F.3d at
152. We review this legal issue de novo. Guevara-Solorzano v. Sessions, 891 F.3d 125,
131 (4th Cir. 2018); Castillo v. Holder, 776 F.3d 262, 267 (4th Cir. 2015). When, as here,
the BIA has not adopted the reasoning of the IJ, we confine our review to the opinion of
the BIA. Martinez v. Holder, 740 F.3d 902, 908 (4th Cir. 2014).
The BIA concluded that Cucalon’s Virginia drug conviction rendered him
removable on the two separate grounds. The first ground subjects an alien to removal if he
5 is convicted of violating a state law “relating to a controlled substance,” as that term is
defined in 21 U.S.C. § 802. See 8 U.S.C. § 1227(a)(2)(B)(i). Section 802 defines the term
“controlled substance” to include substances listed in one of the five federal drug
schedules. 21 U.S.C. §§ 802(6), 812; see Mellouli v. Lynch, 135 S. Ct. 1980, 1991 (2015)
(“[T]o trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element
of the alien’s conviction to a drug defined in § 802.” (internal brackets and quotation marks
omitted)).
The BIA also held that Cucalon was removable on the additional ground of being
an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), because his Virginia conviction
constituted a drug trafficking crime, one category of aggravated felonies set forth in the
INA, id. § 1101(a)(43)(B). 1 Federal law defines the term “drug trafficking crime” to
include “any felony punishable under the Controlled Substances Act,” such as the knowing
or intentional distribution of a controlled substance listed in the federal schedules. 18
U.S.C. § 924(c)(2); 21 U.S.C. §§ 812, 841(a). Cocaine is included as a controlled substance
on federal Schedule II. 21 U.S.C. § 812.
To determine whether a state offense constitutes a drug trafficking crime or a crime
relating to a controlled substance under the INA, we generally apply a categorical
approach. Castillo, 776 F.3d at 267. Under this framework, we compare the federal
definitions of “drug trafficking crime” and crime “relating to a controlled substance” to the
1 Notably, certain aliens who are removable as aggravated felons are not eligible to apply for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), a form of relief Cucalon otherwise would seek. 6 elements of the relevant state offense. Id. If the elements of the state offense “correspond
in substance to the elements” of the federal definition, without consideration of the
individual’s underlying conduct, the state conviction is a categorical “match” to the federal
definition. United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017) (citation, internal
quotation marks, and brackets omitted). However, when a state statute governs a “broader
swath of conduct” than the federal definition, the state and federal definitions are not a
categorical match. Descamps, 570 U.S. at 258.
In limited circumstances, we apply the “modified categorical approach.” Id. at 257.
We use this approach only when a statute is divisible, that is, the statute lists multiple
elements in the alternative, and at least one of the resulting crimes is a categorical match
to the federal definition. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); United
States v. Furlow, 928 F.3d 311, 318 (4th Cir. 2019). Elements of a crime are the
“constituent parts of a crime’s legal definition . . . [that] the jury must find beyond a
reasonable doubt.” Mathis, 136 S. Ct. at 2248 (citation and internal quotation marks
omitted). In contrast to a listing of alternative elements, if a statute lists only “various
factual means of committing a single element,” the statute is indivisible, and the categorical
approach applies. Id. at 2248-49 (emphasis added).
When analyzing a divisible statute, the modified categorical approach enables us to
review “a limited class of documents . . . to determine what crime, with what elements,”
formed the basis of a defendant’s conviction. Id. at 2249. These documents include the
charging document, the plea agreement or the transcript of the plea colloquy, and any jury
instructions given. Shepard v. United States, 544 U.S. 13, 16 (2005); Taylor v. United
7 States, 495 U.S. 575, 602 (1990). Once we have determined the elements of the crime of
conviction, we evaluate whether those elements match the federal definitions of a crime
“relating to a controlled substance” and “drug trafficking crime.” Mathis, 136 S. Ct. at
2256; Furlow, 928 F.3d at 319.
B.
In the present case, because both grounds of removability incorporate the same
federal drug schedules, our analysis of Cucalon’s Virginia conviction applies equally to
both grounds. In Virginia, cocaine is listed on Schedule II, one of the six schedules of
controlled substances set forth in the Virginia Code. Va. Code §§ 54.1-3445 through 54.1-
3455. As noted above, Cucalon was convicted of distribution of cocaine as an
accommodation, in violation of Virginia Code § 18.2-248(D).
Subsection (A) of the Virginia statute sets forth the primary prohibited conduct,
namely, that it is “unlawful for any person to manufacture, sell, give, distribute, or possess
with intent to manufacture, sell, give or distribute a controlled substance or an imitation
controlled substance.” Va. Code § 18.2-248(A). Subsection (D) of Virginia Code § 18.2-
248, under which Cucalon was convicted, clarifies that a defendant is guilty of a Class 5
felony if he engages in certain drug activity “only as an accommodation to another
individual” and without the intent to profit or to induce the other person to become addicted
to the prohibited substance. Va. Code § 18.2-248(D).
Under Virginia law, “the sole effect of the accommodation language” in Subsection
(D) is to establish “a partial affirmative defense to mitigate the punishment for the crime
of distribution of a controlled substance.” Jones v. Commonwealth, 822 S.E.2d 19, 23 (Va.
8 Ct. App. 2018). Accordingly, distribution as an accommodation “is not a separate offense
requiring that the Commonwealth prove different elements.” Id. Our divisibility analysis
thus focuses on the comprehensive crime of “distribution of cocaine” under Virginia Code
§ 18.2-248.
As an initial matter, we agree with the parties that Virginia Code § 18.2-248 is
categorically overbroad, because Virginia includes on its controlled substance schedules at
least one substance not listed on the federal schedules. Thus, if the Virginia statute were
indivisible, Cucalon’s conviction would not qualify as a crime relating to a controlled
substance or as a drug trafficking crime under the INA. Cf. Furlow, 928 F.3d at 319. We
therefore proceed to consider whether the Virginia statute is divisible by substance,
requiring that the specific substance be proved beyond a reasonable doubt as an element of
the state offense.
We begin with the text of Virginia Code § 18.2-248. As noted above, the statute
prohibits distribution of “a controlled substance,” defining the term “controlled substance”
in schedules located elsewhere in the Code. Section 18.2-248 does not specify whether
substances on the schedules are elements of the related offenses. See Mathis, 136 S. Ct. at
2256. It nevertheless is apparent that the controlled substances listed on the schedules are
not merely “illustrative examples” of factual means of committing the crime of distribution
of a controlled substance. Id. (citation omitted). Rather, the substances listed in the six
Virginia schedules constitute the entire universe of controlled substances covered by
Virginia Code § 18.2-248. This fact strongly suggests that the substances are elements of
the crime, not merely means of commission. See Mathis, 136 S. Ct. at 2256.
9 With this textual background in mind, we turn to consider whether Virginia’s courts
have “definitively answer[ed] the question” of divisibility, by holding that the identity of a
prohibited substance is an element of Virginia Code § 18.2-248. Id. Decisions of
Virginia’s appellate courts compel the conclusion that Virginia Code § 18.2-248 is divisible
by substance.
In Cypress v. Commonwealth, 699 S.E.2d 206 (Va. 2010), the Supreme Court of
Virginia directly answered the question whether the identity of a controlled substance is an
element of Virginia Code § 18.2-248. The issue before the court involved the admission
of a laboratory analysis report into evidence in the absence of testimony of the forensic
analyst who had prepared the report. 699 S.E.2d at 213. Acknowledging that a violation
of the Confrontation Clause had occurred, the court nevertheless held that the error was
harmless. Id. In reaching this conclusion, the court reasoned that “the nature and amount
of the confiscated substance were elements of” Virginia Code § 18.2-248, and that,
therefore, the state was required to prove these elements beyond a reasonable doubt. Id.
The court ultimately based its conclusion of harmless error on the fact that there was
overwhelming evidence presented at trial regarding “the identity of the substance,” id. at
214 (citation omitted), and that “the evidence proved beyond a reasonable doubt that the
substance seized . . . was cocaine[.]” Id. Thus, under the court’s decision in Cypress,
Virginia Code § 18.2-248 requires proof of the identity of the prohibited substance as an
element of the offense.
We also observe that we recently considered the divisibility of Virginia Code § 18.2-
250, the section governing possession of controlled substances (the possession statute), a
10 lesser included offense of Virginia Code § 18.2-248. See Bah v. Barr, 950 F.3d 203 (4th
Cir. 2020); see also Austin v. Commonwealth, 531 S.E.2d 637, 639 (Va. Ct. App. 2000)
(Virginia Code § 18.2-250 is lesser included offense of Section 18.2-248). Like the
distribution statute at issue in this case, the possession statute also defines the listed
offenses by reference to the controlled substance schedules in Virginia Code §§ 54.1-3445
through 54.1-3455. And like Cucalon, Bah argued that the possession statute was
indivisible by substance and, thus, that his Virginia conviction was not a crime relating to
a controlled substance under the INA. Bah, 950 F.3d at 207-08.
We held in Bah that the Virginia possession statute is divisible by substance. Id. at
210. In reaching this conclusion, we relied on the decision of the Court of Appeals of
Virginia in Sierra v. Commonwealth, 722 S.E.2d 656, 660 (Va. Ct. App. 2012), which held
that “[t]he specific type of substance found in a defendant’s possession is an actus reus
element the Commonwealth must prove.” Id. (emphasis added); see also Bah, 950 F.3d at
208. Virginia Code § 18.2-248 similarly prohibits distribution of “a controlled substance”
(emphasis added), confirming that distribution of each substance listed on the Virginia
schedules “goes toward a separate crime.” Mathis, 136 S. Ct. at 2257.
Because possession of a controlled substance under Virginia Code § 18.2-250 is a
lesser included offense of distribution of that substance under Section 18.2-248, our
reasoning regarding the divisibility of the controlled substance possessed applies with
11 equal force to the distribution of a particular controlled substance. 2 See Kauffmann v.
Commonwealth, 382 S.E.2d 279, 283 (Va. Ct. App. 1989) (“A lesser included offense is
an offense which is composed entirely of elements that are also elements of the greater
offense.”). We thus follow the divisibility analysis employed in Bah to conclude that the
identity of the prohibited substance is an element of Virginia Code § 18.2-248.
The manner in which Virginia juries are charged further supports our holding that
Virginia Code § 18.2-248 is divisible by prohibited substance. See United States v.
Cornette, 932 F.3d 204, 212 (4th Cir. 2019). Virginia juries are instructed that they must
find beyond a reasonable doubt that the defendant distributed the specific drug charged
under Virginia Code § 18.2-248. The relevant Model Jury Instruction provides as follows:
The defendant is charged with the crime of distributing (name of drug) which is a Schedule [I; II] controlled substance. The Commonwealth must prove beyond a reasonable doubt that the defendant distributed (name of drug).
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt that the defendant distributed (name of drug), then you shall find the defendant guilty but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.
If you find that the Commonwealth has failed to prove beyond a reasonable doubt that the defendant distributed (name of drug), then you shall find the defendant not guilty.
Va. Model Jury Inst. Crim. No. 22.240 (Sept. 2018).
2 We note that we are able to look at the reasoning of Bah, which deals with Section 18.2-250, a lesser included offense of Section 18.2-248, because the divisibility analysis in the present case involves the comprehensive crime of distribution of cocaine under Virginia Code § 18.2-248. 12 Accordingly, from this examination of Virginia law, we conclude that the identity
of the prohibited substance is an element of Virginia Code § 18.2-248 and that the statute
is divisible on that basis. See United States v. Vanoy, --- F.3d --- , No. 18-3165, 2020 WL
1982212, at *2 (8th Cir. 2020) (holding that Virginia Code § 18.2-248 is divisible by
substance). Notably, several of our sister circuits have reached the same conclusion with
respect to other state drug laws, holding that those statutes are divisible and, thus, are
subject to the modified categorical approach. See, e.g., Rendon v. Barr, 952 F.3d 963, 968
(8th Cir. 2020) (Minnesota); Guillen v. U.S. Att’y Gen., 910 F.3d 1174, 1176 (11th Cir.
2018) (Florida); Raja v. Sessions, 900 F.3d 823, 829 (6th Cir. 2018) (Pennsylvania);
Martinez v. Sessions, 893 F.3d 1067, 1073 (8th Cir. 2018) (Missouri); United States v.
Martinez-Lopez, 864 F.3d 1034, 1037 (9th Cir. 2017) (en banc) (California). But see
Najera-Rodriguez v. Barr, 926 F.3d 343, 347 (7th Cir. 2019) (Illinois statute indivisible by
substance); Harbin v. Sessions, 860 F.3d 58, 68 (2d Cir. 2017) (New York statute
indivisible by substance).
Applying the modified categorical approach, we look to certain records from
Cucalon’s state court case to determine which offense formed the basis of his conviction
for violating Virginia Code § 18.2-248. See Shepard, 544 U.S. at 16-17 (explaining
acceptable documents). Cucalon’s indictment specifies that he was charged with
distribution of cocaine as an accommodation, and he later pleaded guilty to the offense “as
charged.” Because cocaine is listed as a Schedule II controlled substance under federal
law, we conclude that Cucalon’s conviction for distribution of cocaine as an
accommodation qualifies both as a crime “relating to a controlled substance” and as a “drug
13 trafficking crime,” as defined in the INA. 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii),
1227(a)(2)(B)(i); 18 U.S.C. § 924(c)(2); 21 U.S.C. § 812. We therefore hold that the BIA
did not err in finding Cucalon removable on these grounds. 3
III.
Finally, Cucalon challenges the BIA’s denial of his motion to reconsider, which we
review for abuse of discretion. Narine v. Holder, 559 F.3d 246, 249 (4th Cir. 2009); see
also 8 C.F.R. § 1003.2(a). The BIA abuses its discretion if it “act[s] arbitrarily, irrationally,
or contrary to law.” Narine, 559 F.3d at 249 (citation omitted).
In his motion to reconsider, Cucalon asserted new arguments that he had not
properly raised before the IJ or the BIA. In particular, he argued that Virginia Code § 18.2-
248 is overbroad on three additional bases: 1) the mens rea requirement for conviction
under the state statute, 2) the alleged discrepancy between cocaine isomers covered under
the Virginia schedule and the federal schedule, and 3) the scope of accomplice liability
under Virginia law. He also offered evidence of Virginia indictments that he alleged
supported his argument that Virginia Code § 18.2-248 is not divisible by substance.
The BIA denied Cucalon’s motion to reconsider, because he had failed to raise these
arguments or present the additional evidence in a timely manner. The BIA further held
3 The BIA erroneously applied the categorical approach in determining that Cucalon’s Virginia conviction qualified as an aggravated felony. We nevertheless need not, and do not, remand to the BIA to reconsider this issue pursuant to SEC v. Chenery Corp., 318 U.S. 80 (1943). The divisibility of Virginia Code § 18.2-248 is a pure question of law subject to de novo review by this Court. See Guevara-Solorzano, 891 F.3d at 134; Yanez-Marquez v. Lynch, 789 F.3d 434, 461 n.14 (4th Cir. 2015). 14 that, even if these issues had been properly preserved, they lacked merit. In his petition for
review, Cucalon does not contend that the BIA abused its discretion in finding these issues
waived, but merely reasserts the merits of his three untimely arguments and the new
evidence that he tendered.
We conclude that the BIA did not abuse its discretion in finding that Cucalon’s new
arguments were waived, and that his request to present the additional evidence of other
Virginia indictments was untimely. See Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st
Cir. 2013) (affirming “the BIA’s exercise of its discretion to deny reconsideration based
on grounds previously available but not previously asserted”). And, even if not waived,
we agree with the BIA that these arguments and additional evidence would not change our
conclusion that Virginia Code § 18.2-248 is divisible by substance and, therefore, is subject
to examination under the modified categorical approach. Accordingly, because the BIA
correctly determined that Cucalon was removable as charged, we conclude that the BIA
did not abuse its discretion in denying Cucalon’s motion to reconsider.
IV.
For these reasons, we deny Cucalon’s petitions for review.
PETITIONS FOR REVIEW DENIED