(A)  Drug Trafficking.  The BIA held for a number of years that a single state conviction for simple possession of a controlled substance would not be considered an aggravated felony for immigration purposes, although it recognized that a number of circuits had found that the same offense was an aggravated felony for sentencing purposes. [391]  At that time the BIA was applying a “hypothetical federal felony” test that required a state conviction to be punishable as a felony under federal law before it could be considered an a “aggravated felony” drug trafficking offense.[392]  With the goal of creating a rule of national uniformity, the BIA applied 18 U.S.C. § 3559, which designates the various classes of felony and misdemeanor for federal purposes, and rejected the government’s suggestion to use the felony definition in 21 U.S.C. § 802(13) (defining felony as any offense designated as a felony by federal or state law), which is applied in the sentencing context.  Thus, the BIA effectively chose to ignore the individual state’s designation of the offense.

 

A problem emerged in the search for a uniform national rule when the federal circuit courts began rejecting the hypothetical federal felony analysis in the criminal sentencing context,[393] looking instead to the treatment of the crime by the rendering jurisdiction (i.e., by applying the definition of felony in 18 U.S.C. § 802(13)), and rejecting the idea that an offense could be considered an aggravated felony for sentencing purposes, but not immigration purposes.[394]

 

Finding that uniformity was unattainable in this circumstance, the BIA held, in Matter of Yanez-Garcia[395] and Matter of Santos-Lopez,[396] that because the meaning of the phrase “drug trafficking crime” is a matter of federal criminal law, the BIA would defer to the interpretation given that statute by the federal circuit courts of appeals that have spoken on the issue.  Where the court had not spoken on the issue, the BIA would apply the majority rule applied in the sentencing context.

 

However, the immigration/sentencing split continues to be recognized in the Second, Third, Sixth, and Ninth Circuits.[397]  This is an open question in the Seventh Circuit,[398] though the district courts within that circuit are to be in agreement with the Ninth.[399]  See § 5.40, infra.

 

A “drug trafficking” offense triggers a 16-level increase in the base offense level, regardless of whether it is an aggravated felony.  Some offenses that qualify as aggravated felony drug offenses might not independently be considered “drug trafficking” offenses in the illegal re-entry sentencing context,[400] and vice versa.[401]  A drug trafficking offense involving a counterfeit controlled substance, for example, will be considered a drug trafficking offense in the illegal re-entry sentencing context, even if it is not considered an aggravated felony.[402]

 

[391]  See Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999).

[392] See Matter of LG, 20 I. & N. Dec. 905 (BIA 1994).

[393] See, e.g., United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir. 1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir. 1994).

[394] The Fifth Circuit additionally rejected the KVD decision in the immigration context, United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S.Ct. 305 (2001), to which the BIA acquiesced.  Matter of Salazar, 23 I. & N. Dec. 223 (BIA 2002).

[395] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002) (en banc).

[396] Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (en banc).

[397] Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb 7, 2005); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (Arizona felony conviction of possession of a controlled substance, which would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court, did not constitute a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because it would not be punishable as a felony under federal drug laws and does not contain an element of commercial trafficking); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).

[398] Garcia v. Ashcroft, 394 F.3d 487 (7th Cir. Jan. 6, 2005) (petition for review is transferred to the district court and must be construed as a petition for a writ of habeas corpus to determine whether noncitizen’s state felony conviction for possession of a controlled substance, which is punishable only as a misdemeanor under federal law, qualifies as an aggravated felony).

[399] Masok v. Achim, 2005 WL 1017891 (N.D.Ill. Apr 28, 2005) (unpublished); Gonzales-Gomez v. Achim, 2005 WL 1330925 (N.D. Ill. Apr. 11, 2005) (unpublished) (Illinois conviction of possession of cocaine, considered a felony under 720 ILCS § 570/402(a), did not constitute a drug trafficking aggravated felony because it would have been no more than a misdemeanor conviction if prosecuted in federal court); Agate v. DHS, 2005 WL 991998 (N.D. Ill. Apr. 11, 2005) (unpublished), following Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); (declining to follow Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002)).

[400] For illegal re-eentry sentencing purposes, a “drug trafficking offense” is defined as “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2(b)(1)(C), appl. note 1(B)(iv) (2005).  See, e.g., United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006) (California conviction for possession or purchase of cocaine base for purposes of sale, in violation of California Health & Safety Code § 11351.5, is not categorically a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) for purposes of illegal re-entry sentencing, because the California offense includes purchase for sale, which is not drug trafficking under the guidelines).

[401] See, e.g., United States v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. Jan. 12, 2006) (federal conviction for conspiracy to possess a listed chemical (ephedrine) with intent to manufacture methamphetamine, under 21 U.S.C. § 841(d)(1), held not to qualify as a “drug-trafficking offense” under U.S.S.G. § 2L1.2, for purposes of imposing a sentence enhancement to an illegal re-entry sentence, because the U.S. Sentencing Commission specifically included this offense under U.S.S.G. § 4B1.2 cmt. n.1, but declined to do so under § 2L1.2); United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony “drug trafficking crime,” as defined by 18 U.S.C. § 924(c), and thus merited an 8-level adjustment under U.S.S.G. § 2L1.2(b)(1); however, the offense of simple possession (no matter what the amount) is not a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (which would merit a 12-level adjustment), as there is no trafficking element to the offense).

[402] United States v. Crittenden, 372 F.3d 706, (5th Cir. 2004) (Texas U.S.S.G. case holds a simulated CS is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) (“[Th]e district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.”).

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F) .

AGGRAVATED FELONY " CRIME OF VIOLENCE " USE OF FORCE " ACCA
United States v. Castleman, ___ U.S. ___, 2014 WL 1225196 (Mar. 26, 2014) (Tennessee misdemeanor conviction of having intentionally or knowingly cause[d] bodily injury to the mother of his child, in violation of Tenn.Code Ann. 39"13"111(b), qualifies as a misdemeanor crime of domestic violence under Armed Career Criminals Act; element of violence is satisfied by offensive touching; this holding does not apply to 18 U.S.C. 16). NOTE: In footnote 4 of this decision, the Court expressly stated that such offensive touching convictions do not qualify as deportable crime of domestic violence convictions for immigration purposes under INA 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i) or crimes of violence aggravated felonies, as defined under 18 U.S.C. 16, for purposes of the aggravated felony definition, INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F).

AGGRAVATED FELONY - DRUG TRAFFICKING - OFFERING TO SELL IS DRUG TRAFFICKING AS ATTEMPTED SALE - ILLEGAL RE-ENTRY CONTEXT
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for sale or offering to sell a controlled substance, under Health & Safety Code 11379(a), constituted "drug trafficking crime" for guidelines purposes: "According to the written plea agreement, Gomez pled guilty to Count Two of the written complaint, which alleged that he "did unlawfully sell, furnish, administer, give away, or offer to sell, furnish, administer, and give away ... controlled substances." In other words, Gomez distributed a controlled substance or attempted to distribute one by offering to do so. Both distribution and attempted distribution of a controlled substance are "drug trafficking offenses." See U.S.S.G. 2L1.2(b)(1)(A) cmts. 1(B)(iv) & 5. Consequently, the district court did not err in finding that Gomez's conviction under California Health & Safety Code section 11379(a) was a "drug trafficking offense.""). This decision suffers from a lack of any analysis of "solicitation" or cases like Rivera-Sanchez or Coronado-Durazo.

AGGRAVATED FELONY - BURGLARY - DISTINCTION BETWEEN ARMED CAREER CRIMINAL ACT AND ILLEGAL REENTRY SENTENCE ENHANCEMENT
James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (April 18, 2007) (Florida conviction for attempted burglary of a dwelling qualifies as a violent felony for the purposes of the Armed Career Criminal Act, 18 U.S.C 924(2)(B)(ii), under the residual provision in 18 U.S.C. 924(2)(B)(ii), as an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another.")

Note: James v. United States does not apply to the question whether the statute triggers a 16-level sentence enhancement for illegal reentry after deportation, as a "burglary of a structure" enumerated offense, since USSG 2L1.2 cmt. n.1(B)(iii) does not contain a similar residual provision). United States v. Gomez-Guerra, ___ F.3d ___ (5th Cir. April 23, 2007) (United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (2005), as an enumerated offense ("burglary of a dwelling" under USSG 2L1.2 cmt. n.1(B)(iii)), does not include residual clause similar to that construed in James).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION CANNOT CONSTITUTE AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION IN ILLEGAL REENTRY SENTENCING CONTEXT SINCE IT CANNOT DO SO IN THE IMMIGRATION CONSTEXT, SINCE CRIMINAL STATUTES MUST BE INTERPRETED CONSISTENTLY REGARDLESS OF CONTEXT
Toledo-Flores v. United States, 549 U.S. ___, 127 S.Ct. 638 (Dec. 5, 2006) (writ of certiorari is dismissed as improvidently granted in companion case to Lopez v. Gonzales, 549 U.S. ___ (Dec. 5, 2006), holding in an immigration context that a state felony conviction of possession of a controlled substance did not constitute an aggravated felony drug trafficking conviction because it would have been a misdemeanor conviction if prosecuted in federal court). http://laws.lp.findlaw.com/us/000/057664.html

The Supreme Court granted certiorari in Torres-Flores as a companion case, presenting the same question in the illegal-reentry sentence enhancement context. The same day it decided Lopez, the court dismissed the writ of certiorari in Torres-Flores as improvidently granted. The logical inference is that the decision in Lopez settled the question in both contexts, and it was therefore unnecessary to decide Torres-Flores. This is consistent with the Supreme Court's statements in Leocal, indicating it was obligated to interpret a criminal statute consistently whether the issue arose in a criminal or noncriminal context. Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (November 9, 2004)(applying criminal rule of lenity in interpreting 18 U.S.C. 16, even though question arose in an immigration context, because "we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context . . . ."), citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications). Since Lopez involved the interpretation of 18 U.S.C. 924(c), which is clearly a criminal statute, the Supreme Court would be compelled to reach exactly the same decision in the criminal context as it did in the immigration context, and there was no need to decide Torres-Flores.

CONTROLLED SUBSTANCES - GUIDELINES - POSSESSION IS NOT CONTROLLED SUBSTANCES OFFENSE
Salinas v. United States, 547 U. S. ___, 2006 WL 1059408 (Apr. 24, 2006) (per curiam) (conviction for simple possession of a controlled substance did not constitute a "controlled substance offense" for purposes of United States Sentencing Commission, Guidelines Manual 4B1.1(a) (2003), since that term requires additional elements: "controlled substance offense" is defined in pertinent part, however, as "an offense under federal or state law . . . that prohibits . . . the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." 4B1.2(b)).
http://www.supremecourtus.gov/opinions/05pdf/05-8400.pdf

Second Circuit

AGGRAVATED FELONY - DEFINITION OF "AGGRAVATED FELONY" UNDER INA 101(a)(43) IS THE SAME IN BOTH CRIMINAL AND IMMIGRATION CONTEXTS
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) ("the term "aggravated felony" has the same meaning under the Guidelines as under the INA" so a decision in an immigration case is binding on the court of appeals in an illegal reentry sentence case), 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)).

CATEGORICAL ANALYSIS - ANALOGY TO SENTENCING CASES
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) ("Finally, in the sentencing context, which has long informed our jurisprudence regarding aggravated felony findings under the INA, we recently remanded a case because it was unclear to what extent the District Court based its sentencing enhancement (for a "pattern of activity involving the sexual abuse or exploitation of a minor") on unsubstantiated charged conduct.")

Third Circuit

CATEGORICAL ANALYSIS - IMMIGRATION VS. SENTENCING
Nijhawan v. Attorney General, 523 F.3d 387 (3d Cir. May 2, 2008) ("The Courts of Appeals have transplanted that categorical approach into the INA because of obvious similarities between the two inquiries. The plain language of the INA, like 924(e), mandates that the alien was "convicted" of the prior offense designated in the INA as an "aggravated felony." It is not sufficient for the BIA to independently conclude that the alien "has committed" that prior offense. Therefore, the INA, like 924(e), requires a comparison of the prior conviction to the generic definition of the pertinent aggravated felony - in this case, 1101(a)(43)(M)(i) and (U). The rationale is not just a textual one, however. Courts have adopted categorical approaches for the INA also because the INA inquiry involves the same sorts of practical difficulties and fairness concerns underlying the Supreme Courts decisions in Taylor and Shepard. As the Second Circuit explained, "the BIA and reviewing courts are ill-suited to readjudicate the basis of prior criminal convictions." Dulal-Whiteway, 501 F.3d at 132. See also id. ("we decline the invitation to piece together an underlying attempt conviction by weighing evidence and drawing conclusions in a manner appropriate only for a criminal jury") (quoting Sui v. I.N.S., 250 F.3d 105, 119 (2nd Cir. 2001)); Shepard, 544 U.S. at 23 (a purpose of the categorical approach is the "avoidance of collateral trials"). As the Second Circuit also recognized, the categorical approach promotes basic precepts of fairness. Id. at 133 ("[I]f the guilty plea to a lesser, [non-removable] offense was the result of a plea bargain, it would seem unfair to [order removal] as if the defendant had pleaded guilty to [a removable offense]. [Taylor, 495 U.S.] at 601-02. By permitting the BIA to remove only those aliens who have actually or necessarily pleaded to the elements of a removable offense, our holding promotes the fair exercise of the removal power").")(Stapleton, J, dissenting).

Fourth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " DISCHARGING A FIREARM
United States v. Parral-Dominguez, ___ F.3d ___, 2015 WL 4479530 (4th Cir. Jul. 23, 2015) (North Carolina conviction for discharging firearm into occupied building, under N.C.G.S.A. 14"34.1(a) (discharge a firearm into a structure while it is occupied, when the defendant had reasonable grounds to believe that the building might be occupied by one or more persons), N.C.G.S.A. 14"34.1(a), was not crime of violence for purposes of imposing a 16-level sentence enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), since the state offense does not require that an offender use, attempt to use, or threaten to use force against another person as required by this Guidelines provision); accord, United States v. Narvaez"Gomez, 489 F.3d 970, 976"77 (9th Cir. 2007) (ruling that discharging a firearm at an occupied dwelling under California law is categorically not a crime of violence under 2L1.2, because it may be committed with purely reckless conduct toward another person); United States v. Jaimes"Jaimes, 406 F.3d 845, 850"51 (holding that discharging a firearm into a vehicle or building under Wisconsin law is not a crime of violence under 2L1.2, because the offense contains no element consistent with the use-of-force clause and does not even require that an occupant actually be present); United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005) (finding that shooting into an occupied dwelling under Virginia law is not a crime of violence under 2L1.2, because a defendant could commit the crime merely by shooting a gun at a building that happens to be occupied without actually shooting, attempting to shoot, or threatening to shoot another person); compare United States v. Quezada-Luna, 439 F.3d 403 (7th Cir. Mar. 3, 2006) (Illinois conviction of discharging a firearm at a building he or she knows or reasonably should know is occupied constitutes an aggravated felony crime of violence, under 18 U.S.C. 16(a), (b), 8 U.S.C. 1101(a)(43)(F) (use, attempted use, or threatened use of physical force against the person or property of another or substantial risk of it) (emphasis supplied), since discharging a firearm at the structure alone qualifies as a crime of violence against property); but see Jimenez-Gonzalez v. Ukase, 548 F.3d 557 (7th Cir. Nov. 21, 2008) (Indiana conviction of criminal recklessness did not qualify as crime of violence supporting aggravated felony-based removal).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCING CONTEXT - COMMON SENSE VS. CATEGORICAL APPROACH
United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) ("In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alternatively employed (1) a "common sense approach," defining the offense according to its "ordinary, contemporary, [and] common meaning," or (2) a "categorical approach," defining the offense according to a "generic, contemporary definition." Compare United States v. Izaguirre-Flores, 405 F.3d 270, 273-74 (5th Cir.2005), with United States v. Dominguez-Ochoa, 386 F.3d 639, 644 (5th Cir.2004); see also United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir.2006) (per curiam) (noting both approaches). Both approaches are rooted in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Izaguirre-Flores, 405 F.3d at 275 n. 16 (quoting Dominguez-Ochoa's citation to Taylor); Dominguez-Ochoa, 386 F.3d at 644 (citing Taylor). Recently a panel of this court articulated that the methodology employed depends upon whether the prior offense constitutes a crime of violence (1) because it is an enumerated offense or (2) because it has as an element the use or attempted use of force. See Mendoza-Sanchez, 456 F.3d at 481-82. If it is the former, then the common sense approach is used; if it is the latter, then the categorical approach is used. See id.").

Fifth Circuit

AGGRAVATED FELONY " CONSPIRACY " OVERT ACT
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. Nov. 1, 2012) (conspiracy for purposes of U.S.S.G. 2L1.2(b)(1)(A)(i), does not require an overt act, where the conviction falls within 21 U.S.C. 846 (attempt and conspiracy)).

AGGRAVATED FELONY " SEXUAL ABUSE OF A MINOR " SEXUAL ASSAULT OF A CHILD
United States v. Rodriguez, 698 F.3d 220 (5th Cir. Oct. 3, 2012) (per curiam) (Texas conviction of sexual assault of a child, in violation of Penal Code 22.011(a)(2) (sexual intercourse with a child, defined as a person under the age of seventeen), is a crime of violence for illegal re-entry sentencing purposes under U.S.S.G. 2L1.2(b)(1)(A)(ii), as an enumerated offense); Calderon"Terrazas v. Ashcroft, 117 Fed.Appx. 903, 904"05 (5th Cir.2004) ([S]exual assault of a child under TEX. PENAL CODE 22.011[(a)(2)] qualifies as an aggravated felony under 8 U.S.C. 1101(a)(43)(A). (internal quotation marks omitted)).

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED ASSAULT
United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. Apr. 20, 2009) (South Carolina conviction of assault and battery of a high and aggravated nature, a state common-law offense, is a crime of violence for purposes of sentencing enhancement, because: "A prior offense qualifies as a crime of violence because it is either an enumerated offense or it has as an element the use or attempted use of force," rejecting a defense argument that this offense had no mens rea requirement, because a South Carolina Supreme Court case held that "for a common law offense to constitute a crime, 'the act must be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as is regarded by law as equivalent to criminal intent.'"), quoting State v. Ferguson, 395 S.E.2d 182, 183 (S.C. 1990)).

Because a different South Carolina Supreme Court case had defined the first element of ABHAN as "an unlawful act," the Fifth Circuit concluded that, based on Ferguson, "the first element of ABHAN--an unlawful act--must indicate criminal intent." Guerrero-Robledo, No. 07-41151, slip op. at 11. Thus, the Fifth Circuit concluded that ABHAN "falls within the common meaning of aggravated assault, rendering it a crime of violence."

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 547 F.3d 242. (5th Cir. Oct. 21, 2008) (en banc) (California conviction of rape, under Penal Code 261(a)(2) (1991) [sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another."], where duress encompassed "a direct or implied threat of ... hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities." Cal. Penal Code 261(b), committed using nonphysical force, qualifies as a "forcible sex offense" and thereby a "crime of violence" under U.S.S.G. 2L1.2(b)(1)(A), sufficient to support 16-level sentence enhancement for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. Sept. 25, 2008) (Texas conviction for burglary of a habitation, in violation of Texas Penal Code 30.02(a)(1), is a crime of violence for illegal re-entry purposes, since the offense is equivalent to "residential burglary."

AGGRAVATED FELONY - STATUTORY INTERPRETATION - STATUTE DEFINING "SEXUAL ABUSE OF A MINOR" HAS SAME MEANING IN IMMIGRATION AS CRIMINAL SENTENCE CONTEXT
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. Mar. 7, 2008) (the term "sexual abuse of a minor" has the same meaning in the aggravated felony context as in the illegal re-entry sentencing context).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR DEFINTION
United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir. Mar. 7, 2008) (the term "sexual abuse of a minor" has the same meaning in the aggravated felony context as in the illegal re-entry sentencing context).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT WITH INTENT TO COMMIT A FELONY
United States v. Rojas-Gutierrez, 510 F.3d 545 (5th Cir. Dec. 13, 2007) (California conviction of assault with intent to commit certain enumerated felonies, including mayhem, rape, sodomy and oral copulation, in violation of Penal Code 220(a), constituted a "crime of violence" for illegal re-entry sentencing purposes, since the ordinary, contemporary, and common meaning of aggravated assault includes "assault with intent to commit a felony.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (Missouri conviction for burglary, in violation of Mo. Ann. Stat. 569.160, is a crime of violence for illegal re-entry sentencing purposes where the indictment shows that the offense involved residential burglary, an offense enumerated as a crime of violence.)

ILLEGAL REENTRY SENTENCING
United States v. Carbajal-Diaz, 508 F.3d 804 (5th Cir. Nov. 26, 2007) (drawing a distinction between the "categorical analysis" applied when determining whether a conviction requires "use of force" for first prong of illegal re-entry sentencing definition of "crime of violence" and the "common sense approach" applied when examining whether an offense falls within one of the offenses enumerated in the second prong.)

AGGRAVATED FELONY - BURGLARY - CRIME OF VIOLENCE
United States v. Castillo-Morales, 507 F.3d 873 (5th Cir. Nov. 8, 2007) (illegal reentry sentence is affirmed where there was no error in a 16-level offense enhancement, since relevant Florida court documents indicated that defendant committed the "crime of violence" of "burglary of a dwelling," as enumerated in U.S.S.G. 2L1.2).

SENTENCING CONTEXT - DRUG TRAFFICKING - POSSESSION
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 2153214 (5th Cir. Jul. 27, 2007) (Georgia conviction for violation of Ga.Code Ann. 16-13-31(e) (1999), punishing any "person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine" is categorically a "drug trafficking" offense for illegal re-entry sentencing purposes, because Georgias sentencing laws impute an intent to distribute to a conviction for possession of 28 grams or more of methamphetamine.) Note: while the appellant raised the issue of whether the prior offenses must be found by a jury to convict of illegal re-entry, the appellant apparently did not raise the issue of whether Georgias sentencing scheme could alter the nature of the offense (from simple possession to drug trafficking), absent as specific finding by a jury.

AGGRAVATED FELONY - CRIME OF VIOLENCE - RAPE
United States v. Gomez-Gomez, 493 F.3d 562 (5th Cir. Jul. 20, 2007) (California conviction for forcible rape, in violation of California Penal Code 261 (1990), is not necessarily a crime of violence for illegal re-entry sentencing purposes, since "[a] subsection of that statute defines duress as a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. Id. at 261(b) (emphasis added). It adds that [t]he total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress. Id.).

Note: The court here tries to distinguish United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.), and suggests that Beliew may be contrary to established Fifth Circuit precedent.

AGGRAVATED FELONY - CRIME OF VIOLENCE - CHILD MOLESTATION
United States v. Beliew, 492 F.3d 314 (5th Cir. Jul. 5, 2007) (Louisiana conviction for child molestation, in violation of L.S.A.-R.S. 14:81.2(A), is a crime of violence for Armed Career Criminal Act purposes, as a "forcible sex offense" since it requires as an element, "force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or ... use of influence by virtue of a position of control or supervision over the juvenile"; finding that use of influence over juvenile was "constructive" use of force.)

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
United States v. Iniguez-Barba, ___ F.3d ___, 2007 WL 1207046 (5th Cir. April 25, 2007) (per curiam) (New York conviction for kidnapping in the second degree, in violation of New York Penal Law 135.20, was a "crime of violence" under U.S.S.G. 2L1.2. for purposes of 16-level enhancement of illegal reentry sentence, even though the statute does not require the kidnapping be conducted with a specific intent), following United States v. Gonzalez-Ramirez, 477 F.3d 310, 317 (5th Cir. 2007) (Tennessee conviction of "kidnapping" was a crime of violence under U.S.S.G. 2L1.2, for purposes of 16-level enhancement of illegal reentry sentence, even though the Model Penal Code requires a specific purpose for an act to be "kidnapping" - such as a desire for ransom, an intent to facilitate another felony or flight, etc. - since the generic, contemporary meaning of kidnapping does not include such a purpose).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir. Apr. 17, 2007) (Tennessee conviction for aggravated assault, in violation of Tennessee Code 39-13-102, is a "crime of violence" for illegal re-entry sentencing purposes, applying the "common sense" analysis).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Santiesteban-Hernandez, __ F.3d __, 2006 WL 3072564 (5th Cir. Oct. 31, 2006) (Texas conviction for violation of Penal Code 29.02(a)(1), robbery, is a crime of violence for illegal re-entry sentencing purposes, since the "crime of violence" definition, U.S.S.G. 2L1.2(b)(1)(A)(ii), specifically includes "robbery" convictions, and the Texas offense falls within the generic definition of "robbery" [requiring theft and immediate danger to a person]).
http://caselaw.lp.findlaw.com/data2/circs/5th/0550399cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - THIRD DEGREE CRIMINAL SEXUAL CONDUCT
United States v. Fernandez-Cusco, __ F.3d __ (5th Cir. Apr. 20, 2006) (Minnesota felony conviction for third degree sexual conduct, under Minn. Stat. 8 609.344, is not necessarily a "forcible sex offense," and therefore not categorically a crime of violence for illegal re-entry sentencing purposes).
http://caselaw.lp.findlaw.com/data2/circs/5th/0540289cr0p.pdf

AGGRAVATED FELONY - CRIME OF VIOLENCE - BURGLARY
United States v. Murillo-Lopez, __ F.3d __ (5th Cir. Mar. 22, 2006) (California conviction for burglary, in violation of Penal Code 459, is a crime of violence for purposes of 16-level sentence enhancement upon conviction of illegal re-entry, where defendant admitted, and did not dispute, that he was convicted of burglary of a dwelling, specifically listed as a crime of violence under U.S.S.G. 2L1.2).
http://caselaw.lp.findlaw.com/data2/circs/5th/0441397cr0p.pdf

CATEGORICAL ANALYSIS " FEDERAL SENTENCING GUIDELINES COMMENTARY IS BINDING ON THE COURTS IN CRIMINAL CASES
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES " SAME INTERPRETATION IN BOTH IMMIGRATION AND CRIMINAL SENTENCING CONTEXTS
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (this court has declined to interpret a drug-based aggravated felony differently in immigration and criminal-sentencing contexts.); see Rashid v. Mukasey, 531 F.3d 438, 442 (6th Cir. 2008); United States v. Palacios-Suarez, 418 F.3d 692, 697 (6th Cir. 2005).

Eighth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " IMMIGRATION CRIME OF VIOLENCE DEFINITION AND ACCA VIOLENT FELONY DEFINITION ARE INTERCHANGEABLE
Roberts v. Holder, 745 F.3d 928, 930 (8th Cir. Mar. 20, 2014) (We have held that the term crime of violence found in 4B1.2(a) of the United States Sentencing Guidelines is interchangeable with the term violent felony found in the Armed Career Criminals Act (ACCA), in 18 U.S.C. 924(e)(2)(B). United States v. Williams, 537 F.3d 969, 971 (8th Cir.2008) (The present case involves the term crime of violence whereas the Supreme Court in Begay [ v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008),] interpreted the term violent felony. We have never recognized a distinction between the two.). Both terms are virtually identical to 16.).

Ninth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SEXUAL CONTACT
United States v. Mendez-Sosa, 778 F.3d 1117 (9th Cir. Mar. 2, 2015) (New Jersey conviction of criminal sexual contact, in violation of NJS 2C:14-3(b), is a crime of violence for illegal reentry sentencing purposes, as a forcible sex offense; district court properly applied divisible statute analysis to determine defendant was convicted of subsection that involved absence of consent).

AGGRAVATED FELONY " CRIME OF VIOLENCE " STATUTORY RAPE
United States v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. Jan. 17, 2013) (Washington conviction for third-degree rape, in violation of RCW 9A.44.060(1)(a), qualified as a "forcible sex offense" supporting a 16-level crime-of-violence enhancement under the Sentencing Guidelines, U.S.S.G. 2L1.2(b)(1)(A)). Note: RCW 9A.44.060(1)(A) punishes any rape that does not constitute first or second degree rape. The statute does not contain any further elements. Without conducting any analysis of Washington case law to determine whether any judicially identified elements exist, and thus whether the statute could be considered divisible, the Court found it could skip the categorical analysis, and apply directly the modified categorical analysis. This allowed the court to conclude the offense was a forcible sex offense which includes any non-consensual sexual intercourse, because the factual basis specified that no consent had been given. The court did not cite Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011).

IMMIGRATION OFFENSES " ILLEGAL REENTRY " SENTENCE " RAPE OF A CHILD QUALIFIES AS STATUTORY RAPE AN ENUMERATED CRIME OF VIOLENCE UNDER THE GUIDELINES
United States v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. Nov. 6, 2012) (Washington conviction of "rape of a child in the third degree," in violation of the Revised Code of Washington 9A.44.079, categorically qualifies as "statutory rape," which is enumerated as a crime of violence for the purposes of a 16-level sentencing enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) for the crime of illegal reentry after deportation; statutory rape for this purpose includes, at least, unlawful sexual intercourse with a person under the age of 16 where the actor is four years older than the victim).

AGGRAVATED FELONY " CRIME OF VIOLENCE " ROBBERY
United States v. Flores-Mejia, 687 F.3d 1213 (9th Cir. Aug. 9, 2012) (California conviction for violation of California Penal Code 211, robbery, is a categorical crime of violence under the "enumerated offenses" definition in U.S.S.G. 2L1.2 for illegal re-entry sentencing purposes).

AGGRAVATED FELONY " FELONY PETTY THEFT " THEFT OFFENSE
United States v. Rivera, 658 F.3d 1073 (9th Cir. Sept. 23, 2011) (California felony petty theft convictions under Penal Code 484(a) and 666 constituted aggravated felony theft offenses, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), for illegal re-entry sentencing purposes); declining to follow United States v. Corona"Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc); following United States v. Rodriquez, 553 U.S. 377, 382-386 (2008) (an increased, recidivist sentence is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one so the sentence imposed for the sentence enhancement does relate to the commission of the repeat offense and is clearly part of the sentence prescribed by law; therefore a recidivist sentence constitutes a sentence imposed for determining whether a prior conviction qualifies as a predicate offense).

AGGRAVATED FELONY " CRIME OF VIOLENCE " MODIFIED CATEGORICAL APPROACH
United States v. Gonzalez-Aparicio, ___ F.3d ___, 2011 WL 2207322 (9th Cir. Jun. 8, 2011) (Arizona conviction for sexual conduct with a minor, in violation of Arizona Revised Statutes 13"1405, constituted an enumerated crime of violence offense (statuory rape) for illegal re-entry sentencing purposes, under the modified categorical approach). NOTE This decision notes tension between statutory rape/sexual abuse of a minor cases in the sentencing and immigration contexts.

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR
United States v. Castro, 599 F.3d 1050, 1054 n.1 (9th Cir. Mar. 26, 2010) (defining the term "sexual abuse of a minor" in the immigration and the illegal re-entry sentencing context involves the same analysis).

AGGRAVATED FELONY - CRIME OF VIOLENCE - 18 U.S.C. 16(a) - APPLICABILITY OF GUIDELINES DECISIONS - THE FULL SCOPE OF THE GUIDELINES DEFINITION OF CRIME OF VIOLENCE IS INCLUDED WITHIN THE BOUNDARIES OF THE CRIME OF VIOLENCE DEFINITION CONTAINED IN 18 U.S.C. 16(a)
United States v. Grajeda, 581 F.3d 1186, 1191 n.4 (9th Cir. Sept. 21, 2009) (decisions interpreting the "crime of violence" definition contained in the "elements" prong of U.S.S.G. 2L1.2(b)(1)(A)(ii), are fully applicable to immigration cases turning on the practically identical "crime of violence" definition contained in 18 U.S.C. 16(a), which is used to define "crime of violence" aggravated felonies under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F): "Like the element prong in 2L1.2, the crime of violence definition in 16(a) includes any "offense that has as an element the use, attempted use, or threatened use of physical force." 18 U.S.C. 16(a); U.S.S.G. 2L1.2, cmt. n. 1(b)(iii) (same). The sole difference is that the 16(a) definition is inclusive of force "against the person or property of another," whereas the Guidelines definition covers only force "against the person of another." Id. (emphasis added). Section 16(b) offers an additional definition, based on the "risk that physical force ... may be used" that is not included in the 2L1.2 definition. 18 U.S.C. 16(b) (defining as a crime of violence "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense").") (emphasis in original); see United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Saavedra-Velazquez, 578 F.3d 1103 (9th Cir. Aug. 21, 2009) (California conviction for attempted robbery, in violation of Penal Code 211 is categorically a "robbery" and thus a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Rivera-Ramos, 578 F.3d 1111 (9th Cir. Aug. 21, 2009) (New York conviction for attempted robbery, in violation of N.Y. Penal Law 160.15(3) is categorically a "robbery" and thus a crime of violence for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Harris, 572 F.3d 1065 (9th Cir. Jul. 24, 2009) (Nevada convictions for robbery and attempted robbery, in violation of Nevada Revised Statutes, 200.380 categorically qualified as "crimes of violence" under U.S.S.G. 4B1.2, for purposes of aggravated federal sentencing under the ACCA, since any offense punishable under that statute that does not qualify as a "robbery," does qualify as an "extortion."), following United States v. Becerril-Lopez, 541 F.3d 881, 892 (9th Cir.2008).

NOTE: In the aggravated felony context, this case may support an argument that the Nevada statute is not necessary a crime of violence, since "[t]he degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property" N.R.S. 200.380.

AGGRAVATED FELONY CRIME OF VIOLENCE- ASSAULT WITH FIREARM- ILLEGAL RE-ENTRY CONTEXT
United States v. Diaz-Argueta, 564 F.3d 1047 (9th Cir. Apr. 24, 2009) (California conviction of assault with a firearm, under Penal Code 245(a)(2), with probation on condition of serving a sentence less than one year, can constitute a "crime of violence under U.S.S.G. 2L1.2(b)(1)(A)(ii), and thus support a 16-level sentence enhancement for illegal reentry, even where it does not qualify as a crime of violence aggravated felony because there is no sentence imposed of one year or more); citing United States v. Pimentel-Flores, 339 F.3d 959, 960-61 (9th Cir.2003).

AGGRAVATED FELONY - CRIME OF VIOLENCE - AGGRAVATED FELONY VS. SENTENCING CONTEXT
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008). This case has a detailed discussion of the differences between the different statutes and methods of defining "crime of violence."

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ABUSE
United States v. Beltran-Munguia, 489 F.3d 1042 (9th Cir. Jun. 7, 2007) (Oregon conviction of sexual abuse in the second degree, in violation of Oregon Revised Statute 163.425, did not qualify as a "crime of violence," for purposes of 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii), of his sentence for illegal reentry after deportation both because the state statute does not make force - be it used, attempted, or threatened - an element of the crime, and because the crime does not constitute a "forcible sex offense" within the meaning of the applicable guideline).

AGGRAVATED FELONY - IMMIGRATION V. SENTENCING CONTEXT
United States v. Sandoval-Sandoval, ___ F.3d ___ (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

United States v. Sandoval-Sandoval, 487 F.3d 1278 (9th Cir. May 23, 2007) (per curiam) (district court at sentencing properly relied on California abstract of judgment, for purpose of imposing a 16-level enhancement pursuant to U.S.S.G. 2L1.2(b)(1)(A) in reliance on a factual finding that Defendant had been convicted earlier of "a drug trafficking offense for which the sentence imposed exceeded 13 months," since the document unequivocally contained the information needed), distinguishing United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004) (district courts may not rely on an abstract of judgment to determine the nature of a prior conviction for purposes of analysis under Taylor v. United States, 495 U.S. 575 (1990), since the documents contain insufficient information for that purpose; case did not hold court may not rely on abstracts at all), and following United States v. Valle-Montalbo, 474 F.3d 1197, 1201-02 (9th Cir. 2007) (district court properly relied on abstract of judgment, in combination with the charging document, for the purpose of determining whether a defendant had a qualifying conviction under U.S.S.G. 2L1.2(b)(1)(A).).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT
United States v. Carson, 486 F.3d 618 (9th Cir. May 15, 2007) (Washington conviction of second-degree assault, in violation of RCW 9A.36.021(1)(f) [ "[k]nowing[ ] inflict[ion of] bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture."] is a "crime of violence" for purposes of the Sentencing Guidelines career offender enhancement provision, U.S.S.G. 4B1.1).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT IN THIRD DEGREE
United States v. Rendon-Duarte, 482 F.3d 1080, 1085 (9th Cir. March 21, 2007) (Alaska conviction of Assault in the Third Degree, in violation of Alaska Statute 11.41.220(a)(1) ("recklessly (A) places another person in fear of imminent serious physical injury by means of a dangerous instrument."), constituted a crime of violence under U.S.S.G. 4B1.2(a)(2)(2005) ("any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (2) ... involves conduct that presents a serious potential risk of physical injury to another."), for purposes of enhancing sentence for a federal conviction for being a felon in possession of firearms, in violation of in violation of 18 U.S.C. 922(g)(1) & 924(a)(2): "Whether the conduct was reckless or not has no bearing on the applicability of subsection (2) of the Guidelines.").

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE - KIDNAPPING
United States v. Juarez-Galvan, 572 F.3d 1156 (10th Cir. Jul. 20, 2009) (California conviction of kidnapping, in violation of Penal Code 207(a), constituted a crime of violence for illegal reentry sentencing purposes, because kidnapping is an offense enumerated under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - ROBBERY
United States v. Juarez-Galvan, 572 F.3d 1156 (10th Cir. Jul.20, 2009) (California conviction of robbery, in violation of Penal Code 211, constituted a crime of violence for illegal reentry sentencing purposes, because robbery is an offense enumerated under U.S.S.G. 2L1.2(b)(1)(A)(ii)).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SEXUAL ASSAULT
United States v. Yanez-Rodriguez, 555 F.3d 931 (10th Cir. Feb. 10, 2009) (Kansas conviction for violation of Kan. Stat. Ann. 21-3517 (1988) ("unlawful, intentional touching of the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another") is a "forcible sex offense" for illegal re-entry sentencing purposes, even though the statute does not require that the actor used force), disagreeing with United States v. Meraz-Enriquez, 442 F.3d 331 (5th Cir.2006).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SENTENCE GUIDELINES DEFINITIONS - DIFFERENCE BETWEEN DEFINITION UNDER USSG 2L1.2 (narrower) AND USSG 4B1.1 (broader)
United States v. Ruiz-Rodriguez, 494 F.3d 1273 (10th Cir. Aug. 1, 2007) ("Although we previously have held that a conviction for false imprisonment under some state definitions can qualify as a crime of violence, we have done so only for a different type of sentence enhancement that does not resolve the issue in this case. U.S.S.G. 2L1.2 has a more narrow definition of "crime of violence" than the enhancement for career offenders, see 18 U.S.C. 924(e) and U.S.S.G. 4B1.1, which defines a crime of violence in terms of a crime that has an element of force or "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. 2L1.2 does not provide for the latter alternative definition. Therefore, although we have held that false imprisonment can qualify as a crime of violence under U.S.S.G. 4B1.1, that determination has hinged on our determination that the crime necessarily entails "a substantial risk of physical force being used" because "it involves non-consensual acts on another person." Zamora, 222 F.3d at 764. In contrast, our current inquiry is limited to whether false imprisonment in Nebraska "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. 2L1.2 cmt. n. 1(B)(iii).").

AGGRAVATED FELONY - DRUG TRAFFICKING - LOPEZ DECISION EFFECTIVELY OVERRULED PRIOR CONTRARY HOLDINGS EVEN THOSE RENDERED IN THE CRIMINAL SENTENCING CONTEXT
Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (Lopez v. Gonzales, ___ U.S. ___, 2006 WL 3487031 (Dec. 5, 2006), holding a state conviction of simple possession of cocaine cannot be an aggravated felony, effectively overruled prior contrary holdings, even those rendered in the criminal sentencing context, because the Supreme Court had previously held "[W]e must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context " Leocal v. Ashcroft, 543 U.S. 1, 11 n. 8 (2004)" and stated: "The Court in Lopez made it clear that its holding was not limited to the immigration context, we conclude. In addressing and rejecting an argument made by the government in Lopez, the Court said that the reading of the statute the government was proposing would make federal law in "alien removal," and "the law of sentencing for illegal entry into the country, [under] USSG 2L1.2, dependent on varying state criminal classifications" in contravention of Congressional intent. Lopez, 2006 WL 3487031 at *6.").

SENTENCING VS IMMIGRATION CONTEXT
United States v. Hernandez-Garduno, __ F.3d __ (10th Cir. Aug. 21, 2006) (to trigger 16-level sentence increase for illegal re-entry following conviction of a crime of violence, the crime does not need to also be an aggravated felony). http://laws.lp.findlaw.com/10th/042224.html

Eleventh Circuit

ILLEGAL REENTRY - SENTENCE - CRIME OF VIOLENCE
United States v. Gonzalez, F.3d 1319 (11th Cir. Dec. 12, 2008) (16 level increase on sentencing for illegal re-entry warranted because robbery conviction was a crime of violence for sentencing purposes, even though it was not an "aggravated felony" crime of violence).

AGGRAVATED FELONY - CRIME OF VIOLENCE - "CRIME OF VIOLENCE" DECISIONS UNDER TWO DIFFERENT GUIDELINES DEFINITIONS AND FEDERAL FIREARMS POSSESSION STATUTE ARE INDISTINGUISHABLE
United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) ("In our view, the offenses at issue in Glover [USSG 4B1.2(a)] and Griffith [18 U.S.C. 922(g)(9)] cannot be meaningfully distinguished from the offense at issue in the instant case, at least with regards to determining whether the offense is a "crime of violence" under U.S.S.G. 2L1.2(b)(1).").

RECORD OF CONVICTION - SENTENCING CONTEXT
United States v. Llanos-Agostadero, _486 F.3d 1194 (11th Cir. May 15, 2007) (per curiam) ("Generally, in determining whether a prior conviction is a qualifying offense for enhancement purposes, we apply a "categorical" approach-that is, we look no further than the fact of conviction and the statutory definition of the prior offense. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990); United States v. Aguilar-Ortiz, 450 F.3d 1271, 1273 (11th Cir.2006). But where the judgment of conviction and statute are ambiguous, "we remand for the district judge to look at the facts underlying a state conviction." Aguilar-Ortiz, 450 F.3d at 1273. In examining the facts underlying a prior conviction, the district court is generally limited to relying only on the "charging document[s], written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id.; Shepard v. United States, 544 U.S. 13, 19-26 125 S.Ct. 1254, 1259-63, 161 L.Ed.2d 205 (2005).").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY CONSTITUTES A CRIME OF DOMESTIC VIOLENCE UNDER FEDERAL CRIMINAL FIREARMS STATUTE
United States v. Griffith, 455 F.3d 1339, 1340-1345 (11th Cir. 2006) (Georgia conviction of simple battery, under Ga.Code Ann. 16-5-23(a)(1) (which occurs when a person "[i]ntentionally makes physical contact of an insulting or provoking nature with the person of another"), constitutes a "crime of domestic violence" under 18 U.S.C. 921(a)(33)(A)(ii), 922(g)(9), which defines a "crime of domestic violence" to include, inter alia, any offense that "has, as an element, the use or attempted use of physical force.").

AGGRAVATED FELONY - CRIME OF VIOLENCE - ASSAULT - SIMPLE BATTERY ON POLICE OFFICER CONSTITUTES CRIME OF VIOLENCE UNDER GUIDELINES
United States v. Glover, 431 F.3d 744, 747, 749 (11th Cir. 2005) (Florida conviction of simple battery on a law enforcement officer, in violation of Fla. Stat. 784.03 and 784.07, is a crime of violence under U.S.S.G. 4B1.2(a)(1) [inter alia, any offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another."]).

DC Circuit

AGGRAVATED FELONY - SENTENCING GUIDELINES - CRIME OF VIOLENCE
United States v. Ventura, 565 F.3d 870 (D.C. Cir. May 15, 2009) (Virginia conviction of felonious abduction in violation of Virginia Code 18.2-47, which prohibits unlawfully seizing or detaining another person, did not constitute a "crime of violence," triggering a 16-level sentence enhancement under USSG 2L1.2(b)(1)(A)(ii), but only a "aggravated felony," justifying an eight-level increase, under USSG 2L1.2(b)(1)(C), because using the categorical approach, it did not fall within the generic definition of kidnapping, one of the offenses specifically listed as a "crime of violence" under the Guidelines; "a substantial majority of jurisdictions-forty-four out of fifty-two-require some additional element of intent or severity. Virginia's abduction statute encompasses both generic kidnapping and less serious offenses, leaving it to other statutes and the discretion of sentencing judges to tailor punishment based on the severity of the offense."); accord, United States v. Gonzalez-Perez, 472 F.3d 1158, 1161 (9th Cir. 2007) (generic kidnapping requires a nefarious purpose); contra, United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir. 2007) (rejecting requirement that kidnapping have a nefarious purpose in addition to an act of restraining, removing, or confining another; and (2) an unlawful means of accomplishing that act); United States v. Gonzalez-Ramirez, 477 F.3d 310, 318 (5th Cir. 2007) (same).

Other

AGGRAVATED FELONY - SENTENCING V. IMMIGRATION
Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007 ("A "misdemeanor crime of domestic violence" under 18 U.S.C. 922(g)(9) is limited to those offenses of which the use or attempted use of physical force or the threatened use of a deadly weapon is an element that is, a factual predicate specified by law and required to support a conviction. Where the legal definition of the crime at issue contains a disjunctive element (which requires proof of only one of multiple specified factual predicates), only one subpart of which requires the use or attempted use of physical force or the threatened use of a deadly weapon, application of the prohibition in section 922(g)(9) will turn on whether the fact finder found that the subpart meeting the "misdemeanor crime of domestic violence" definition had been proved (or whether the defendant pleaded guilty to that subpart). The answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction. Police reports cannot answer that question. The above interpretations also govern background checks by the Federal Bureau of Investigation for firearms transfers under the National Instant Background Check System, but additional materials, including police reports, may be relied upon by the NICS for certain limited purposes.")

AGGRAVATED FELONY - CRIME OF VIOLENCE - RELATIONSHIP BETWEEN SENTENCE ENHANCEMENT COV AND AGGRAVATED FELONY COV CASES
Lynn Hartfield, Challenging Crime of Violence Sentence Enhancements in Federal Court, 30 THE CHAMPION 28 (May 2006).

CRIM DEF - UNITED STATES SENTENCE GUIDELINES MANUAL ONLINE
http://www.ussc.gov/2007guid/TABCON07.html