United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA 101(a)(43)(B), for illegal re-entry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time).

In considering whether an Illinois conviction of failure to report to jail constituted a "violent felony" under the Armed Career Criminal Act for sentence enhancement purposes, the Supreme Court relied in part on a Sentencing Commission Report. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007 (Nov. 2008), reprinted as Appendix A, Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 2009 WL 63882 (Jan. 13, 2009). The Court reasoned:

A conviction of witness dissuasion, under any of the subdivisions included within Penal Code 136.1, constitutes a strike. Penal Code 1192.7 (c)(37) ("intimidation of victims or witnesses, in violation of Section 136.1").

A conviction of possession of contraband cigarettes, in violation of 18 U.S.C. 2342, should not constitute a crime involving moral turpitude. The statute provides:



(a) It shall be unlawful for any person knowingly to ship,
transport, receive, possess, sell, distribute, or purchase
contraband cigarettes.

United States v. Gagnon, 553 F.3d 1021 (6th Cir. Jan. 29, 2009) (federal conviction in violation of 18 U.S.C. 111, punishes activity less serious than simple assault; defendant who had spit at border patrol officers and forced himself to vomit was therefore guilty under 18 U.S.C. 111). Note: counsel can therefore argue that a conviction under this statute is not necessarily a crime of violence or a crime of moral turpitude. But see United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir.

United States v. Mohr, 554 F.3d 604 (5th Cir. Jan. 6, 2009) (South Carolina conviction for stalking, in violation of S.C.Code 1976 16-3-1700(B) is a crime of violence for purposes of the Armed Career Criminal Act; even though the judgment indicated that the defendant was convicted under the "non-violent" portion of the statute; the elements of the statute itself indicate that the offense involved a substantial potential risk of physical injury to another).

Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) (federal conviction of failure to appear, in violation of 18 U.S.C. 3146, is broader than the aggravated felony definition of failure to appear, under INA 101(a)(43)(T), since 18 U.S.C. 3146 can be violated by failing to appear for a misdemeanor, for reasons other than to dispose of a charge, and based upon orders other than those issued by a court).

Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

United States v. Youssef, 547 F.3d 1090 (9th Cir. Nov. 5, 2008) (federal conviction for violation of 18 U.S.C. 1015(a), making a false statement in an immigration document, does not require the false statement to be material; even though prior conviction qualified for the petty offense exception to inadmissibility, and was therefore immaterial to admission, the noncitizen was required to disclose the fact of conviction).