(B)  Ninth Circuit Authorities.  This argument is particularly strong in the Ninth Circuit.  In Coronado-Durazo v. INS, the Ninth Circuit held that solicitation to commit a crime is not a basis for deportation under the controlled substances ground, even when the crime solicited involved controlled substances.[436]  The court based its decision on the fact that the controlled substances deportation ground explicitly includes conspiracy or attempt to commit an offense, but does not include the distinct offense of solicitation.  Under that reasoning, a conviction under a general solicitation statute would not be held to be an aggravated felony, since the aggravated felony statute punishes only attempt and conspiracy to commit aggravated felonies, but does not specifically include as an aggravated felony solicitation to commit an aggravated felony offense.[437]

 

            The Ninth Circuit has also held that a conviction under the same Arizona solicitation statute for solicitation to possess marijuana for sale does not constitute an aggravated felony under the drug trafficking provisions, which require the offense to be punishable under the Controlled Substances Act, 21 U.S.C. § § 801 et seq.[438]  While the Act does cover attempt and conspiracy, solicitation is not listed.  So, just as in Coronado-Durazo, solicitation of a drug trafficking offense does not itself constitute a drug trafficking aggravated felony.

 

            In United States v. Rivera-Sanchez,[439] a unanimous en banc panel of the Ninth Circuit held that the California statute prohibiting sale of marijuana[440] was divisible because it contained a number of completely different offenses with completely different elements: sales, transportation, offer to sell, etc.  One of the divisible offenses included within the statute was solicitation, i.e., “offer to sell.”  Citing Coronado-Durazo and Leyva-Licea, the court held that “offer to sell” was not an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation under 8 U.S.C. § 1326(b)(2).  Because the record of conviction in this case did not reveal on which basis the defendant was convicted, and thus did not negate the possibility the defendant had been convicted of mere offer to sell — a non-aggravated felony, the court could not hold the conviction was an aggravated felony, and remanded to allow the district court to consult the record of conviction to see if the ambiguity could be resolved.  The court therefore overruled prior case law holding that a conviction under this statute was automatically an aggravated felony.[441]  As Rivera-Sanchez noted, the other California drug sales statutes are functionally identical and will be subject to the same divisibility analysis with regard to solicitation.[442]

 

            The convictions in Coronado-Durazo and Leyva-Licea were for violating an Arizona general solicitation offense (i.e., a statute that penalized solicitation to commit any crime).  The court noted that the solicitation statute defined a “generic” offense that Arizona courts had held to be distinct from the underlying crime because it requires a different mental state and different acts.[443]  Convictions under general solicitation statutes, like that of Arizona, should not be held to be controlled substances offenses or an aggravated felony as drug crimes or under any other aggravated felony definition.

[436] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (conviction under Ariz.R.S. § 13-1002 for solicitation to commit a crime is not an offense “relating to” controlled substances even where offense solicited involves controlled substances, disapproving Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation under Arizona statute is an offense “relating to” controlled substances)).  See also discussion in ILRC § 2.7 and Chapter 4 (2004).

[437] Both the ground of inadmissibility and deportability grounds relating to drugs include attempt and conspiracy, but not solicitation.  See § § 3.15, 3.48, supra; Appendix F, infra; ILRC § 3.1 (2004).  The aggravated felony definition includes attempt and conspiracy, but not solicitation, at INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[438] Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 2000).

[439] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[440] Cal. Health & Safety Code § 11360(a).

[441] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (overruling United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999), cert. denied, 121 S.Ct. 156 (2000) (holding violations of California Health & Safety Code § 11360(a) constituted aggravated felonies pursuant to U.S.S.G. § 2L1.2(b)(1)(A)), United States v. Lomas, 30 F.3d 1191 (9th Cir. 1994) (conviction of violating California Health & Safety Code § 11352(a) for transportation constituted aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)), and United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999)).

[442] See California Health & Safety Code § 11352 (sale, distribution or transportation of narcotics such as heroin and cocaine) and § 11377(a) (sale of restricted dangerous drugs such as methamphetamines), which are functionally identical to Health & Safety Code § 11360(a). 

[443] Coronado-Durazo v. INS, supra, 123 F.3d at 1324.

Seventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF INDECENT SEX ACT
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because it involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), where the complaint stated that he "offered Evelyn M. Aguila[,] a person not his spouse[,] mother of [child's name,] a child under 13 yrs of age, $20.00 USC, to allow him to have sexual contact with same for the purpose of his sexual gratification or arousal."), following Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005) (solicitation of sexual contact with a minor in violation of 720 ILCS 5/11-14.1 constitutes a sexual abuse of a minor aggravated felony, since complaint to which plea was entered identifies the complainant as a minor and states his age). http://caselaw.lp.findlaw.com/data2/circs/7th/062661p.pdf

Eleventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Aguilar-Ortiz, __ F.3d __ (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. 777.04(2) is not a "drug trafficking offense" for illegal re-entry sentencing purposes because the guidelines include aiding and abetting attempt, and conspiracy, but not solicitation offenses).