Section 924(c)(1)(A) of Title 18 of the United States Code provides for an extra five-year sentence for one who uses or carries a firearm during a drug-trafficking crime. This appears to be a sentence enhancement, rather than a criminal offense. See United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002)(en banc) (in analyzing whether an offense (in that case theft) is an aggravated felony, a recidivist sentence enhancement is not counted in determining the potential maximum sentence for the offense). The Ninth Circuit applied this rule to drug cases in Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002), and it held in United States Ballesteros-Ruiz, 319 F.3 1101, 1103 (9th Cir. 2003) that Corona-Sanchez had implicitly overruled cases rulings in 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) that a second federal simple possession conviction is a felony for this purpose based on the recidivist sentence enhancement. Even if it is considered a criminal offense, rather than a sentence enhancement, it does not constitute a "drug trafficking" crime, and is therefore not a drug-trafficking aggravated felony, since it appears in Title 18, rather than the Controlled Substances statutes where all drug-trafficking crimes are listed. 8 U.S.C. 1101(a)(43)(B), referring to 18 U.S.C. 924(c)(2). The same holds true for 18 U.S.C. 924(b) (transportation or receipt of firearm or ammunition in interstate or foreign commerce with intent or knowledge that it will be used to commit a felony), 18 U.S.C. 924(g)(interstate or foreign travel to attempt to obtain a firearm with intent to commit RICO offense, crime of violence, or any state or federal controlled substance offense), and 18 U.S.C. 924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

jurisdiction: 
Ninth Circuit

 

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