(B)  In the alternative, the conviction is an aggravated felony if it is for a “drug trafficking crime (as defined in section 924(c) of title 18, United States Code).”  Section 924(c) of Title 18 in turn lists convictions under: (1) the Controlled Substances Act (21 U.S.C. § § 801 et seq.), (2) the Controlled Substances Import and Export Act (21 U.S.C. § § 951 et seq.), and (3) the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

 

To qualify under the second prong, a conviction must:

 

(a)     be a felony;[235]

(b)    include all elements of a federal drug offense listed in the Controlled Substances Act (21 U.S.C. § § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.);[236] and

(c)     involve a controlled substance on the federal list (21 U.S.C. § 802). [237]

 

If the conviction is for violation of state law, the state offense must be exactly analogous to a federal drug offense named in the statute, under the test provided in Matter of Barrett.[238]  See § 5.44, infra.

 

            Simple possession and other drug offenses without a commercial element have been found to fall under this prong because they are punishable under the listed federal statutes.[239]  Counsel may wish to argue, based upon a recent United States Supreme Court decision, that these offenses should not be considered “drug trafficking” crimes under this second prong.  In Leocal v. Ashcroft,[240] the court stated that when interpreting a statute, the courts must give the words of the statute their “ordinary and natural meaning.”  As the term “drug trafficking” implies a commercial element,[241] the “ordinary and natural” meaning of that term, as used in the aggravated felony definition, would exclude offenses like simple possession in which there is no commercial element.

 

            Some offenses that qualify as aggravated felony drug offenses under the second prong will not be independently considered “drug trafficking” offenses in the illegal re-entry sentencing context, and vice versa.[242]  See § 4.40, supra.

[235] See § 5.39, infra.

[236] For a checklist of federal controlled substances offenses, see Appendix E, infra.

[237] See § 5.42, supra.

[238] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).  A state-by-state quick reference to drug laws nationwide can be found at http://www.norml.org/index.cfm?wtm_view=&Group_ID=4516

[239] Ibid.

[240] Leocal v. Ashcroft, ­­543 U.S. 1, 9 (Nov. 9, 2004), citing Smith v. United States, 508 U.S. 223, 228 (1993).

[241] Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992) (the concept of trafficking includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”).

[242] 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).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - MONEY LAUNDERING UNDER $10,000 AS A DRUG TRAFFICKING AGGRAVATED FELONY
A conviction of money laundering, under 18 U.S.C. 1956, 1957, should not be considered a drug trafficking aggravated felony. It is certainly not a drug trafficking crime, under the second theory, since it cannot be considered a "felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or Chapter 705 of Title 46." (18 U.S.C. 924(c)(2), referred to in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B). As the Ninth Circuit held: "Lara-Chacon's conviction under the Arizona racketeering statute is not a 'drug trafficking crime' because his crime is not 'punishable under the Controlled Substances Act.'" Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).

The Ninth Circuit continued:

In assessing whether a crime is a drug trafficking crime, we consider categorically whether the "full range of conduct" encompassed by the statute of conviction is punishable by the Controlled Substances Act. United States v. Rivera-Sanchez, 247 F.3d 905, 907-09 (9th Cir.2001) (en banc). The money laundering statute under which Lara-Chacon was convicted penalizes many different types of racketeering that are not punishable by the Controlled Substances Act, which makes it illegal to "use or invest, directly or indirectly, any part of such income[derived from committing any prohibited drug offense punishable by more than one year], or the proceeds of such income." See 21 U.S.C. 854. The Arizona statute under which Lara Chacon was convicted defines money laundering as follows: "A person is guilty of money laundering in the second degree who: 1. Acquires or maintains an interest in, transacts, transfers, transports, receives or conceals the existence or nature of racketeering proceeds knowing or having reason to know that they are the proceeds of an offense." Ariz.Rev.Stat. 13-2317(A)(1) (West 1999). In addition to acts for financial gain "involving ... prohibited drugs, marijuana, or other prohibited*1153 chemicals or substances," racketeering under Arizona law includes acts involving theft, asserting false claims, obscenity, a scheme or artifice to defraud, prostitution, terrorism, drug crimes punishable for less than one year, and counterfeiting, among others. Ariz.Rev.Stat. 13-2301(D)(4) (West 1999). Thus, the "full range of conduct" encompassed by the Arizona statute is not punishable by the Controlled Substances Act, which, for example, does not address terrorism, prostitution, theft, drug crimes punishable for less than a year, or obscenity. We therefore turn to the modified categorical approach.

(Id. at 1152-1153.)

A money-laundering conviction could therefore only be a drug trafficking aggravated felony if it was included within the plain language of the definition: "illicit trafficking in a controlled substance . . . ." (Ibid.) Standing alone, a financial transaction involving drug-trafficking proceeds does not appear to fall within this definition, since no federally defined controlled substances are exchanged in the money laundering transaction itself. In Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir. 2003), a conviction under a state money-laundering statute was found not to be a drug-trafficking aggravated felony, but in that case the government only had a PSR which was not admissible under the modified categorical approach. Logically, financial transactions involving the proceeds of a sale of drugs are distinguishable from the drug transaction itself, and so should not fall under the "illicit trafficking" portion of the drug trafficking aggravated felony definition.

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF PSEUDOEPHEDRINE WITH INTENT TO MANUFACTURE METHAMPHETAMINE
Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. Apr. 12, 2010) (state offense does not need to involve use of a firearm to qualify as an aggravated felony drug trafficking crime, despite reference in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) to 18 U.S.C. 924).

Second Circuit

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403,(2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403, ___ (2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

Ninth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " CALIFORNIA TRANSPORTATION OFFENSES NOW ARE DEFINED AS TRANSPORTATION FOR SALE
Health & Safety Code 11360, 11379.5 and 11391 (amended by AB 730, filed Jul. 13, 2015) ("transport" under these statutes is amended to mean transport for sale). http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB730 Note: Conviction of transportation of a controlled substance listed under the federal controlled substances schedules now constitutes a drug trafficking aggravated felony, under 8 U.S.C. 1101(a)(43)(B). This change makes the definition of transport in these statutes the same as the previous change in Health & Safety Code 11379, 11352. This protects defendants against the enhanced sentence exposure of a sale-level offense for the more minor offense of transportation of a controlled substance for personal use. On the other hand, noncitizens convicted under this new definition of transportation are subject to the extreme immigration consequences attached to aggravated felony convictions, 8 U.S.C. 1101(a)(43)(B), instead of less serious ones for convictions of controlled substances offenses. 8 U.S.C. 1227(a)(2)(B)(i). Counsel can still attempt to plead to offer to sell or offer to transport under these statutes, which will not constitute a drug-trafficking aggravated felony at least in the Ninth Circuit.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION OF EPHEDRINE WITH REASON TO BELIEVE IT WOULD BE USED TO MANUFACTURE METHAMPHETAMINE
Daas v. Holder, ___ F.3d ___, ___ (9th Cir. Aug. 24, 2010) (federal conviction of distributing listed chemicals (ephedrine and pseudoephedrine) with reasonable cause to believe they would be used to manufacture methamphetamine, in violation of 21 U.S.C. 841(c)(2), qualified as a aggravated felony drug trafficking crime, regardless of whether ephedrine and pseudoephedrine are controlled substances.); see Lopez-Jacuinde, 600 F.3d at 1217, and Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.2008).

AGGRAVATED FELONY - DRUG TRAFFICKING - CONVICTION MAY CONSTITUTE A DRUG TRAFFICKING AGGRAVATED FELONY UNDER EITHER OF TWO DEFINITIONS
Daas v. Holder, 620 F.3d 1050 (9th Cir. Aug. 24, 2010) ("illict trafficking" prong and "controlled substances act" prongs of aggravated felony drug trafficking definition constitute two independent tests), citing Lopez-Jacuinde, 600 F.3d at 1217, and Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF PSEUDOEPHEDRINE WITH INTENT TO MANUFACTURE METHAMPHETAMINE
Lopez-Jacuinde v. Holder, 600 F.3d 1215 (9th Cir. Apr. 12, 2010) (state offense does not need to involve use of a firearm to qualify as an aggravated felony drug trafficking crime, despite reference in INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) to 18 U.S.C. 924).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - CULTIVATION OF MARIJUANA
United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) (California conviction of cultivation of marijuana, in violation of Health & Safety Code 11358, is categorically an aggravated felony under INA 101(a)(43)(B) as an analogue to 21 U.S.C. 841(b)(1)(D)).