Aggravated Felonies

(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).