NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HERMENEGILDO CEBALLOS, AKA No. 15-73265 Hermenegildo Ceballos-Ochoa, AKA Hermenegildo Ochoa, Agency No. A044-794-149 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 23, 2019** San Francisco, California Before: BYBEE, N.R. SMITH, and COLLINS, Circuit Judges. Petitioner Hermenegildo Ceballos-Ochoa (“Ceballos”) petitions for review of the decision of the Board of Immigration Appeals (“BIA”), which upheld the Immigration Judge’s decision finding him ineligible for cancellation of removal * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2). under section 240A of the Immigration and Nationality Act, 8 U.S.C. § 1229b. We deny the petition. Applying de novo review, Villavicencio v. Sessions, 904 F.3d 658, 663 (9th Cir. 2018), we agree with the BIA that, under our controlling decision in United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) (per curiam), Petitioner’s 2014 conviction for a violation of California Health & Safety Code section 11358 constitutes an “aggravated felony” that renders him statutorily ineligible for cancellation of removal. 8 U.S.C. § 1229b(a)(3). The disqualifying “aggravated felon[ies]” include a “drug trafficking crime (as defined in section 924(c) of Title 18).” See 8 U.S.C. § 1101(a)(43)(B). Section 924(c)(2), in turn, defines a “drug trafficking crime” as, inter alia, “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. § 924(c)(2). From at least 1977 until 2016, California Health and Safety Code section 11358 has provided for the punishment of anyone who “plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law.” See CAL. HEALTH & SAFETY CODE § 11358 (West 2016); id. (West 2011). Applying the categorical approach of Taylor v. United States, 495 U.S. 575 (1990), we held in Reveles-Espinoza that the conduct criminalized by this language in section 11358 is “clearly within the ambit of the federal felony of manufacturing marijuana” under the Controlled Substances Act (“CSA”). 522 F.3d at 1048; see 2 also id. at 1047 (citing 21 U.S.C. § 841(b)(1)(D) (providing that the manufacture of marijuana in violation of 21 U.S.C. § 841(a)(1) is punishable by up to five years in prison, and in some cases, more)); cf. 18 U.S.C. § 3559(a) (classifying as a “felony” any federal crime punishable by more than one year in prison). As such, a conviction under section 11358 “categorically falls within the generic definition of a ‘drug trafficking crime’ and thus constitutes an ‘aggravated felony’ within the meaning of 8 U.S.C. § 1229b.” Reveles-Espinoza, 522 F.3d at 1047. Petitioner contends that the holding of Reveles-Espinoza has been superseded by Moncrieffe v. Holder, 569 U.S. 184 (2013), but that is wrong. In ...
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