PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 17-3434 _______________ ALEXIS LEOPOLD MARTINEZ, Petitioner v. ATTORNEY GENERAL, UNITED STATES OF AMERICA, Respondent _______________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (BIA-1: A043-623-955) Immigration Judge: Amit Chugh _______________ Argued September 6, 2018 Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges (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 _______________ 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 cat- egorical approach, a state-law conviction makes an alien re- 2 movable if its elements are no broader than those of a qualify- ing federal crime. Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013). Alexis Martinez contends that he is not removable be- cause the New Jersey drug-trafficking law of which he was convicted is broader than its federal counterpart. First, he ar- gues 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 coexten- sive. Second, Martinez argues that New Jersey’s list of drugs in- cludes 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 Mar- tinez 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 law- ful 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 dis- tribute, 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 3 cocaine or to aid another in distributing cocaine. The jury con- victed 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 ...
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