Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 n.6 (Dec. 5, 2006)(in dictum, the court stated: ". . . Congress did counterintuitively define some possession offenses as 'illicit trafficking.' Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U. S. C. 844(a), clearly fall within the definitions used by Congress in 8 U. S. C. 1101(a)(43)(B) and 18 U. S. C. 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute 'illicit trafficking in a controlled substance' or 'drug trafficking' as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of 'illicit trafficking' does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.")



     This language in Lopez raises a question whether the Ninth Circuit Corona-Sanchez rule remains valid, holding that a recidivist sentence enhancement is not counted for purposes of determining a potential or imposed sentence in an aggravated felony determination. There are a number of responses to this argument. First, no recidivist sentence enhancement was presented in Lopez. This casual reference therefore amounts to nothing more than dictum. The law is well-settled that an issue not raised, briefed, or argued has not been decided by the court. R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) ["It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611, 123 L.Ed.2d 172; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).



     Second, the question in Lopez involved whether a state possession conviction, assessed on its elements under a categorical analysis, constituted an aggravated felony conviction. The question in Corona-Sanchez, however, related to whether a sentence imposed pursuant to a recidivist sentence enhancement had been imposed for the offense of conviction so as to constitute a sentence imposed for purposes of assessing whether a conviction constituted an aggravated felony conviction. In other words, Lopez involved whether a disposition constituted a conviction, whereas Corona-Sanchez concerned whether a sentence had been imposed for an offense or a sentence enhancement. These are different questions, interpreting different statutes. "Conviction" is defined in INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), whereas "sentence" is defined in INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A).



     Third, in assessing whether a state conviction falls within an immigration ground of deportation, using the categorical analysis, the elements of the state offense are compared with the elements of the federal deportation ground. In order to fall within the federal deportation ground under the Lopez analysis, the state conviction would have to have the prior conviction as an element of the state offense, as is the case with the petty theft with a prior offense, or an ex-felon in possession of a firearm. A second possession conviction would therefore not constitute a felony, under the Lopez analysis, unless the state prosecutor in fact pleaded and proved the prior conviction as an element of the offense, as would be required in federal court before the possession conviction would constitute a felony. Contra, Durant v. ICE, 393 F.3d 113 (2d Cir. Dec. 16, 2004) (second conviction for possession of cocaine is an aggravated felony drug offense, since a second possession conviction is a felony under federal law); United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law is an aggravated felony since the offense would be a felony under federal law).



     A second or subsequent conviction of simple possession of a controlled substance, other than an amount in excess of five grams of cocaine base or any amount of flunitrazepam, will be considered a misdemeanor conviction in the Ninth Circuit, see Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a "felony" for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, had been overruled by en banc decision United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)), even if the offense is labeled as a felony in the convicting jurisdiction, since the Ninth Circuit ignores sentence increases based on prior conviction sentence enhancements in determining whether a conviction falls within a ground of deportation. United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002). Therefore, a second or conviction for simple possession of a controlled substance, under this analysis, constitutes a federal misdemeanor, see United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir. 2003), disapproving United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), and United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998), as having been overruled by United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc), and cannot constitute an aggravated felony for deportation purposes. Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself), citing United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). Other circuits disagree.



     Sentence Enhancement Sentences. A sentence enhancement does not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense of conviction for the purpose of determining whether a conviction constitutes a deportable offense. Montiel-Barraza v. INS, 275 F. 3d 1178 (9th Cir. 2002); see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for recidivism does not define a separate crime). See also United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant due to previous drunk driving convictions did not convert drunk driving offense to a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into a firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001). The sentence imposed upon a recidivist sentencing enhancement or recidivist treatment therefore does not count towards the sentence for immigration purposes, at least in the Ninth Circuit. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona conviction of second-offense possession of marijuana, in violation of Ariz. Rev. Stat. 13-901.01(A), (E), was not an aggravated felony as a drug trafficking conviction pursuant to INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), under U.S.S.G. 2L1.2(b)(1)(C), for purposes of an eight-level sentence enhancement for illegal re-entry, since it was not punishable by more than one years imprisonment under applicable state law or under federal law since the greater sentence available on account of the prior was not considered to be available for the offense, but rather for the sentence enhancement), following United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2001) (en banc); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona Revised Statute 13-1805(I), a class 4 felony punishing anyone "who commits shoplifting and has previously committed or been convicted within the past five years of two or more offenses involving burglary, shoplifting, robbery, [etc.]," may not be an aggravated felony offense under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), in light of United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), since the offense is a felony only on the basis of a prior conviction-based sentence). But see United States v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999) (aggregating term for offense and firearm enhancement for sentencing guideline purposes); United States v. Ortiz-Gutierrez, 36 F.3d 80 (9th Cir. 1994) (same). On the other hand, a non-recidivist based sentence enhancement, for example, one based on the defendants conduct, can transform a conviction into a felony conviction and increase the maximum possible punishment. United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir. 2005) (post-Booker decision distinguishes Corona-Sanchez, and treats recidivist enhancements as being different than non-recidivist enhancements).



     The Ninth Circuit has established the rule that a sentence imposed pursuant to a recidivist sentence enhancement is not considered to constitute part of a sentence imposed, for determining whether a conviction qualifies as an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation. United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc); United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself), citing Corona-Sanchez v. INS, 291 F.3d 1201 (9th Cir. 2002)(en banc). Thus, where the base offense was petty theft under California law, with a maximum of six months in county jail, and the defendant received a two-year prison sentence under a statute that enhanced the sentence on account of a prior conviction, only the six-month sentence that could have been imposed for misdemeanor petty theft counted when determining whether a sentence of one year or more had been imposed on the defendant for purposes of deciding whether the current offense was an aggravated felony.



     This rule was extended to an Arizona case in which misdemeanor possession of marijuana was elevated to a felony allowing for a possible state prison sentence in excess of one year, since the defendant had suffered a prior conviction. The Ninth Circuit held that this second-offense conviction for possession of marijuana constituted only a misdemeanor with a one-year maximum, for purposes of determining whether it constituted a felony conviction that qualified as a "drug trafficking" offense under 18 U.S.C. 924(c), since the underlying offense itself was only a misdemeanor and the felony status resulting from the recidivist sentence enhancement was ignored for this purpose. United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be "for" the "offense," but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc)).



     In United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th Cir. 2002), the court recognized that the holding of Corona-Sanchez applied equally to 21 U.S.C. 844 (imposing greater sentence upon a subsequent simple possession conviction).



     The Seventh Circuit sub silentio disagrees, counting a felony as a felony even though it is a felony solely because of a recidivist sentence enhancement. Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois conviction of possession with intent to distribute THC, in violation of Wis. Stat. 961.41(1m)(h)(1), was punishable as a felony under state law because of an unrelated prior conviction, and therefore was an aggravated felony under the drug-trafficking portion of INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though the state felony characterization depended on a recidivist enhancement), failing to discuss United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).