The INA includes as an aggravated felony “an offense described in [INA] § § 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph . . . .”[477]   The statutes referred to are codified in 8 U.S.C. § § 1325(a) and 1326. 

 

This ground therefore has the following elements:

 

            (1)  a conviction of an offense

            (2)  described in 8 U.S.C. § § 1325(a) (illegal entry) or 1326 (illegal re-entry after deportation)

            (3)  committed by an alien who was previously deported

            (4)  on the basis of a conviction for an offense that is an aggravated felony other than one that is described in 8 U.S.C. § § 1325(a) or 1326.

 

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

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE
United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (Texas conviction for delivery of a controlled substance, in violation of V.T.C.A., Health & Safety Code 481.112, was not a drug-trafficking offense for illegal re-entry sentence enhancement purposes, since the definition of "deliver" includes solicitation, and solicitation is not included as a non-substantive offense that can trigger a sentence enhancement under the 2004 version of U.S.S.G. 2L1.2).