(C)  Prior Deportation For An Aggravated Felony Other Than Under Subdivision (O).  Those who violate the statute by illegal re-entry after deportation or removal are considered aggravated felons only if the prior deportation was “for an offense described in another subparagraph of this paragraph . . . .”[483]  This would exclude those previously deported on account of an illegal entry or re-entry conviction, because those offenses are not “described in another subparagraph of this paragraph . . .”[484] — they are described in the same subparagraph.  It would also exclude those previously deported for some reason other than an aggravated felony conviction; for example, those deported for any other ground of deportation, such as crime of moral turpitude, controlled substances or firearms conviction, entry without inspection, for lack of documents, for overstaying a visa, etc.  Counsel should check the order to show cause, or notice to appear (the charging documents in immigration court), as well as the deportation or removal order itself, to determine whether the order of removability or deportability meets the statutory test.

[483] Ibid.

[484] 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).