(B)  Illegal Re-Entry Record of Conviction Must Establish Prior Deportation.   A noncitizen may be convicted of an offense “described in § . . . 276 [8 U.S.C. § 1326]” under a variety of circumstances.  8 U.S.C. § 1326(a) provides in pertinent part:

 

any alien who:

 

1.         has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter

 

2.         enters, attempts to enter, or is at any time found in, the United States, unless [the Attorney General has expressly consented or the noncitizen establishes no such consent was required]

 

shall be fined under Title 18 or imprisoned not more than 2 years, or both.

 

            Thus, this is a divisible statute.  Some noncitizens may violate it by returning after having been denied admission; others after deportation.  Removal is considered equivalent to deportation for this purpose.  Although the aggravated felony statute provides that the noncitizen must have been previously “deported” under certain circumstances, this applies to one who was similarly “removed” under the post-1996 changes in immigration terminology.[481]

 

            The aggravated felony ground is limited to those convicted of a violation of this statute only if “previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph . . . .”[482]  Therefore, noncitizens convicted of a violation of this statute by returning illegally after having been denied admission have not been convicted of an aggravated felony.

[481] United States v. Pantin, 155 F.3d 91 (2d Cir. 1998).

[482] Ibid.  (emphasis supplied).

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).