While the aggravated felony definition includes attempt and conspiracy to commit an aggravated felony,[366] there are a number of cases specifically in the drug trafficking context that have held that conviction of a non-substantive drug offense other than attempt or conspiracy are not aggravated felonies, at least for immigration purposes.  See § 3.48-3.54, supra.  There is also an argument that a state attempt or conspiracy conviction may not qualify as such for immigration purposes, since the state definition of “attempt” or “conspiracy” may be broader than the federal definition.  See § § 5.7, 5.12, supra.

 

[366] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

Eleventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Aguilar-Ortiz, __ F.3d __ (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. 777.04(2) is not a "drug trafficking offense" for illegal re-entry sentencing purposes because the guidelines include aiding and abetting attempt, and conspiracy, but not solicitation offenses).