(C)  Argument “Felony” is Defined by 18 U.S.C. § 924(c).  There is an argument that, for the purposes of the aggravated felony drug trafficking definition, the phrase “any felony” is defined by 18 U.S.C. § 924(c)(2), regardless of whether the conviction occurred in state or federal court, and that the “hypothetical federal offense” rule should prevail.  In Jerome v. United States, [254] the United States Supreme Court was required to determine the meaning of the phrase “any felony” in another federal criminal statute:

 

Sec. 2 (a) of the Bank Robbery Act ... provides in part that “whoever shall enter or attempt to enter any bank, n1 or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $ 5,000 or imprisoned not more than twenty years, or both.” Petitioner was indicted under that section for entering a national bank in Vermont with intent to utter a forged promissory note and thereby to defraud the bank. He was convicted after trial before a jury and was sentenced to imprisonment for one year and a day. The utterance of a forged promissory note is a felony under the laws of Vermont ... but not under any federal statute. The Circuit Court of Appeals affirmed the conviction by a divided vote, holding that “felony” as used in § § 2(a) includes offenses which are felonies under state law. 130 F.2d 514. We granted the petition for a writ of certiorari because of the importance of the problem in the administration of justice and because of the diversity of views which have developed as respects the meaning of “felony” in § § 2(a). [255]

 

In concluding that the phrase “any felony” presumptively excluded crimes which were felonies under state, but not federal, law, the Court reasoned:

 

At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. Examples under federal revenue acts are common. Douglas v. Willcuts, 296 U.S. 1; Helvering v. Stuart, 317 U.S. 154, and cases cited. But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402) and at times on the fact that the federal program would be impaired if state law were to control.[256]

 

In Miss. Band of Choctaw Indians v. Holyfield,[257] the Court likewise stated:

 

[T]he general assumption [is] that “in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Jerome v. United States, 318 U.S. 101, 104 (1943)... One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. ... Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended... A second reason for the presumption against the application of state law is the danger that “the federal program would be impaired if state law were to control.” ... For this reason, “we look to the purpose of the statute to ascertain what is intended.”

 

The term “aggravated felony” includes state crimes as a result of the overarching language of 8 U.S.C. § 1101(a)(43), and not from the language of 18 U.S.C. § 924(c)(2).  The meaning of 18 U.S.C. § 924(c)(2) is thus unaffected by the fact that 8 U.S.C. § 1101(a)(43) covers both federal and state crimes.[258]  This argument has yet to be discussed in a published decision.

 

[254] Jerome v. United States, 318 U.S. 101 (1943).

[255] Id. at 101-102 (1943) (internal citations omitted).

[256] Id. at 104 (emphasis added).

[257] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989) (some internal citations omitted) (emphasis added).

[258] Thanks to Lisa S. Brodyaga for this argument.

BIA

AGGRAVATED FELONY - DRUG TRAFFICKING - SMALL QUANTITY
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE MISDEMEANOR CONVICTION OF POSSESSION OF CONTROLLED SUBSTANCES WITH INTENT TO DISTRIBUTE HELD AN AGGRAVATED FELONY BECAUSE IT WOULD HAVE BEEN A FELONY IF PROSECUTED IN FEDERAL COURT
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (to determine whether a state drug offense is an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), the court examines whether the underlying offense would have been punishable as a felony if it had been prosecuted under federal law, and is not bound by the fact that the conviction is a misdemeanor under state law).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " ILLICIT TRAFFICKING TEST " FELONY REQUIRED
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (Because Thomas's convictions were misdemeanors under New York Penal Law, see N.Y. Penal Law 221.40, those convictions cannot, by definition, be aggravated felonies pursuant to the illicit trafficking route.)

Ninth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " COCAINE BASE
United States v. Baptist, __ F.3d __, 2011 WL 2150993 (9th Cir. Jun. 2, 2011) (Fair Sentencing Act of 2010, reducing 100-1 disparity in sentencing for crack cocaine, is not retroactive).