(D)  Record of Conviction Must Establish Prior Deportation Was “For” A Specified Aggravated Felony.  Only those convicted of violating these statutes who were previously deported for an aggravated felony conviction other than illegal entry or re-entry under INA § § 275(a) or 276, 8 U.S.C. § § 1325(a) or 1326 would be considered aggravated felons under this theory.  Therefore, the record of conviction of the subject illegal re-entry conviction must be examined carefully to determine whether it establishes all the elements required for the subject conviction to be considered an aggravated felony conviction.  The statute is a divisible statute, so the divisible statute analysis applies.

 

            Counsel representing noncitizens on illegal re-entry charges should attempt to make sure the record of conviction does not establish that the defendant was previously deported “for” an aggravated felony conviction.  This should not be too difficult, since the law is clear that to be subject to the enhanced criminal penalties,[485] the noncitizen need not have been deported on account of the aggravated felony prior, merely deported after suffering the aggravated felony conviction.[486]  Therefore, it is unlikely that the record of conviction and punishment under INA § 276(b)(2) will establish the elements necessary to conclude that the subject conviction itself constitutes an aggravated felony conviction under INA § 101(a)(43)(0).

[485] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2) (illegal re-entry after deportation after aggravated felony conviction).

[486] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

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).