(E)  Effect of Post-Conviction Relief.   In questionable decisions, the First and Tenth Circuits have held that the relevant time to determine whether the defendant was convicted of an aggravated felony for illegal re-entry sentencing purposes is the time of removal, so that even if the conviction is later vacated as constitutionally invalid, a 16-level enhancement is still appropriate.  So long as the removal occurred after the conviction, but while the conviction was in existence, a conviction that is later vacated can serve as an “aggravated felony” to enhance sentence under INA § 276(b)(2).[487]  See § 6.6(D), infra.

[487] United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001), citing United States v. Luna-Diaz, 222 F.3d 1, 3 (1st Cir. 2000); see also United States v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir. 1997).

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).