FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS April 21, 2020
                                                               Christopher M. Wolpert
                               TENTH CIRCUIT                       Clerk of Court



 JUAN MANUEL TORRES-
 LEDESMA,

              Petitioner,
 v.                                                     No. 19-9530
 WILLIAM P. BARR, United States
 Attorney General,

              Respondent.


           PETITION FOR REVIEW FROM AN ORDER OF THE
                 BOARD OF IMMIGRATION APPEALS


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.


      Juan Manuel Torres-Ledesma is a legal permanent resident who challenges

his order of removal to Mexico. He was ordered removed from the United States



      *
         After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule
32.1.
under 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(B)(i) after an immigration judge

(IJ) determined his conviction under Oklahoma law constituted both an

aggravated felony and a controlled substance offense. The Board of Immigration

Appeals (BIA) affirmed the IJ’s order of removal, but we reversed and remanded

for reconsideration under the correct legal standard applying to whether a state

conviction constituted an aggravated felony under federal law. Torres-Ledesma v.

Lynch, 608 F. App’x 704 (10th Cir. 2015).

      On reconsideration the BIA once again concluded that Torres-Ledesma was

convicted of an aggravated felony under Oklahoma state law and was therefore

removable under § 1227(a)(2)(A)(iii). It did not decide whether he was also

removable for a controlled substance violation under (a)(2)(B)(i). Torres-

Ledesma now appeals the BIA’s latest decision and argues that his conviction

under Oklahoma law was not a felony and therefore cannot be the basis for

removability under federal law. He also argues that his conviction was not one

for a controlled substance offense and that his removal under § 1227(a)(2)(B)(i)

was not proper. Because we agree the government has failed to show clearly and

convincingly that Torres-Ledesma’s conviction was a state-law felony, we

GRANT his petition for review and REVERSE the BIA.

      We REMAND for further consideration of whether he was removable under

§ 1227(a)(2)(B)(i).


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                                 I. Background

      Torres-Ledesma is a native and citizen of Mexico who became a legal

resident of the United States in November 1999. Soon thereafter he pleaded

guilty to using a communication facility in connection with drug trafficking in

violation of 13 Okla. Stat. § 176.3(8) and 176.7. 1 He received a deferred sentence

of five years’ imprisonment and a one-thousand dollar fine. In 2007, he applied

for naturalization. At that point, immigration authorities became aware of his

1999 conviction and the fact that it made him removable under

§ 1227(a)(2)(A)(iii), which provides for the removal of aggravated felons. 2 Then

in June 2008, an Oklahoma court amended his guilty plea nunc pro tunc to a

violation of a different provision of Oklahoma law, 63 Okla. Stat. § 2-404. In

relevant part, that statute prohibits the maintenance of a dwelling “which is

resorted to by persons using controlled dangerous substances in violation of [the]

act, or which is used for the keeping or selling of the same . . . .” 63 Okla. Stat.


      1
        Section 176.3(8) makes guilty of a felony anyone who “[w]illfully uses
any communication facility in committing or in causing or facilitating the
commission of any act or acts constituting one or more of the felonies enumerated
in Section 176.7 of this title.” Section 176.7 lists multiple felonies, including “the
cultivation or manufacture or distribution of narcotic drugs or other controlled
dangerous substances, as defined in the Uniform Controlled Dangerous
Substances Act, [and] trafficking in illegal drugs, as defined in the Trafficking in
Illegal Drugs Act.”
      2
       “Any alien who is convicted of an aggravated felony at any time after
admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

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§ 2-404(A)(6). Violations of the statute are punishable by either a civil fine or, if

knowledge and purpose are alleged, a felony conviction which carries the

potential for imprisonment and fines.

After the amendment to the

guilty plea, the government continued to argue that he was removable under

§ 1227(a)(2)(A)(iii), and it added an additional charge of removability under

(a)(2)(B)(i), which provides for the deportation of “[a]ny alien who at any time

after admission has been convicted of a violation . . . of any law or regulation . . .

relating to a controlled substance.”

      An IJ ultimately found Torres-Ledesma removable under both subsections

of the federal statute because a violation of § 2-404(A)(6) constituted an

aggravated felony and a controlled substance violation. The BIA affirmed that

decision, reasoning that § 2-404(A)(6) was a categorical match to 21 U.S.C

§ 856(a)—part (1) of which makes unlawful “knowingly . . . maintain[ing] any

place . . . for the purpose of manufacturing, distributing, or using any controlled

substance.” Torres-Ledesma subsequently filed a petition for review of the BIA’s

decision and another for review of the BIA’s denial of reconsideration. This

court combined the two and reversed the BIA, remanding with instructions to

apply the modified categorical approach and to explain its reasoning. Torres-

Ledesma v. Lynch, 608 F. App’x 704 (10th Cir. 2015).




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      On remand, the BIA again determined that Torres-Ledesma’s guilty plea

constituted a removable offense. Applying the modified categorical approach, the

BIA reasoned that Torres-Ledesma was convicted of the felony contemplated by

§ 2-404 because his deferred sentence resembled the sentence allowable under the

felony portion of the statute. It did not reach the question of removability under

§ 1227(a)(2)(B)(i) because an alien removable under (a)(2)(A)(iii) is ineligible for

cancellation of removal. See 8 U.S.C. § 1229b(a)(3).

      We now consider the second BIA decision.

                                 II. Discussion

      Torres-Ledesma challenges the BIA’s affirmation of his removal under

§ 1227(a)(2)(A)(iii) and argues he was not removable under (a)(2)(B)(i). For the

reasons discussed below, we agree with regard to (a)(2)(A)(iii) and reverse the

BIA on its conclusion that Torres-Ledesma was removable under that provision.

Because the BIA erred in concluding that he was removable under (a)(2)(A)(iii),

it should now consider whether he was removable under (a)(2)(B)(i).

      A. Removal for Conviction of an Aggravated Felony

      Torres-Ledesma contends he is not removable under § 1227(a)(2)(A)(iii)

because he did not plead guilty to the felony portion of the Oklahoma statute.

      In his appeal from the first BIA decision, this court concluded that the BIA

erred in using the categorical approach to determine whether a conviction under


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§ 2-404 was an aggravated felony and instructed the BIA to reconduct its analysis

using the modified categorical approach. The government had urged the theory

that § 2-404(A)(6) was a categorical match to its federal counterpart, § 856(a),

because both make criminal the maintenance of a dwelling where controlled

substances are kept. In response to Torres-Ledesma’s argument that this was not

a categorical match because the statutes contemplated different mentes reae, the

government noted that the Oklahoma statute required a more intensive mens rea,

necessarily fulfilling the federal requirement. In order to violate § 2-404(A)(6), a

person must act with purpose, and anyone acting with purpose necessarily acts

with the sort of knowledge required by § 856(a)—and the sort of knowledge or

intent required for a felony conviction under § 2-404(B). While the court did not

expressly address this argument, it did implicitly reject it by holding that the

categorical approach was not appropriate.

      In so holding, the court also necessarily foreclosed, even if implicitly, the

government’s argument on this appeal that there was only one crime—a

felony—to which Torres-Ledesma could have pleaded guilty under § 2-404(B).

See Wilmer v. Bd. of Cty. Comm’rs, 

, 409 (10th Cir. 1995) (noting that

even implicitly decided matters may become law of the case). After all, a

modified categorical approach is not necessary when there is only one crime to be

compared to the federal statute. So this court’s decision that a modified


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categorical approach was necessary implies a conviction under § 2-404 is

divisible between two criminal provisions, and the government must show that the

relevant provision matches 21 U.S.C. § 856(a).

      Under the law-of-the-case doctrine, we treat an earlier Tenth Circuit

decision in the same action as controlling. Brokers’ Choice of Am., Inc. v. NBC

Universal, Inc., 

, 1099 (10th Cir. 2017). While our law-of-the-case

doctrine is discretionary, we generally only refrain from applying it: “(1) when

new evidence emerges; (2) when intervening law undermines the original

decision; and (3) when the prior ruling was clearly erroneous and would, if

followed, create a manifest injustice.” Bishop v. Smith, 

, 1086 (10th

Cir. 2014). The government has not argued for any of these exceptions, and we

are not inclined to find one sua sponte.

      The BIA reasoned that the deferred sentence of five years’ imprisonment

necessarily makes the § 2-404 conviction a felony because, under its subsection

B, only a felony carries jail time. The government has offered the alternative

theory on appeal that only one criminal punishment is contemplated by

§ 2-404(B), and that punishment is one for a felony. Therefore, the argument

goes, if Torres-Ledesma was convicted of a crime, he was necessarily convicted

of a felony. Torres-Ledesma responded that he pleaded guilty to a misdemeanor,

punishable by only a civil fine. The law of the case requires us to reject the


                                           -7-
government’s argument and conclude that the civil fine constitutes a non-felony

criminal penalty for these intents and purposes.

      Because this court’s previous decision forecloses the argument that a

conviction under § 2-404(A)(6) is a felony per se and the argument that the civil

fine mentioned in § 2-404(B) is not a criminal penalty, we can only affirm if the

record contains clear and convincing evidence that Torres-Ledesma violated

§ 2-404 “knowingly or intentionally.” See § 2-404(B); Bedolla-Zarate v.

Sessions, 

, 1139 (10th Cir. 2018) (stating that the government has

the burden to establish by clear and convincing evidence that an alien’s removal

is warranted by his prior conviction).

      The record does not contain sufficient evidence to permit such a

conclusion. True, some evidence supports a weak inference that Torres-Ledesma

was convicted of a felony. Chief among that evidence is that the penalty for a

felony conviction under § 2-404 resembles the deferred sentence Torres-Ledesma

received. In its order amending the conviction nunc pro tunc, the Oklahoma court

stated it dismissed the case because “the conditions of the deferred sentence ha[d]

been met.” R. vol. 2, p. 498. The BIA took this to mean that the deferred

sentence would have been appropriate for the new charge. Under that reading, the

determination that Torres-Ledesma was convicted of a felony seems reasonable.

The felony conviction under § 2-404 is, after all, punishable by up to five years in


                                         -8-
prison, and Torres-Ledesma received a five-year deferred prison sentence. The

felony portion also provides for a fine of up to ten thousand dollars, and he

received a fine. But the BIA overreads the state court. That court never stated

the original sentence would have been appropriate under the new charge. At

most, the statement could mean the deferred sentence satisfied the minimum

punitive requirements of § 2-404. That is, we cannot conclude the court was

saying Torres-Ledesma’s sentence would have been appropriate under § 2-

404—only that such as a sentence was at least as punitive as necessary and that he

deserved no further punishment. This is equally consistent with a conviction

under the civil penalty portion of the statute.

      In sum, the government has not shown that the record clearly and

convincingly demonstrates that Torres-Ledesma pleaded guilty to an aggravated

felony.

      B. Removal for Conviction of a Controlled Substances Violation

      Because the BIA incorrectly concluded that Torres-Ledesma was removable

under § 1227(a)(2)(A)(iii), and therefore ineligible for cancellation of removal, it

may still consider whether he was removable under (a)(2)(B)(i). On remand, the

agency must determine whether Torres-Ledesma’s conviction under 63 Okla. Stat.

§ 2-404 made him removable under § 1227(a)(2)(B)(i).




                                          -9-
                               III. Conclusion

      We REVERSE the BIA’s conclusion that Torres-Ledesma was removable

under 8 U.S.C. § 1227(a)(2)(A)(iii), and remand for further proceedings

consistent with this order and judgment.

                                                  Entered for the Court

                                                  Timothy M. Tymkovich
                                                  Chief Judge




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