Aggravated Felonies

(C)  Non-Substantive Offenses.  As of November 1, 2001, the illegal re-entry sentencing guidelines have expressly included “aiding and abetting” an offense listed under that section, including aiding and abetting an aggravated felony.[413]  At least one court has found, therefore, that aiding and abetting an aggravated felony triggers an 8-level increase for sentencing purposes, even though the same court has held that aiding and abetting an aggravated felony is not an aggravated felony for immigration purposes.[414]

            In the context of another sentencing guidline,[415] no longer used in sentencing for illegal re-entry, several courts have found unlisted non-substantive offenses to be included, reading the language of the guidline to be a non-exhaustive list.[416] 

[413] U.S.S.G. § 2L1.2, application note 5 (2005).

[414] Compare United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony under the U.S.S.G. for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence), with Martinez-Perez v. Ashcroft, 417 F.3d 1022 (9th Cir. Aug. 2, 2005) (California conviction for grand theft by taking property from the person of another, in violation of Penal Code § 487(c), is not an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for deportation purposes, because the court could not determine from the record of conviction whether Martinez pleaded guilty to the statute as a principal or as an aider or abettor), vacating and overruling prior decision at 393 F.3d 1018 (9th Cir. Dec. 29, 2004).

[415] U.S.S.G. § 4B1.1.

[416] United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. 2003) (the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term “includes” is not exhaustive, conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term “include,” the list of offenses in the application note is merely illustrative, it observed that the application note “may not be an exhaustive list” and proceeded to decide “whether ... criminal facilitation should be included in that list” and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense); but see United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. 1994) (solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because “the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.”).