Solicitation is a non-substantive offense, and is not included in the list of non-substantive offenses that can trigger removal for an aggravated felony.  For nearly all aggravated felony categories, there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as solicitation.  See § 3.53, supra.  See generally Appendix F, Non-Substantive Offenses, infra.

 

AGGRAVATED FELONY - DRUG TRAFFICKING - OFFERING TO SELL IS DRUG TRAFFICKING AS ATTEMPTED SALE - ILLEGAL RE-ENTRY CONTEXT
United States v. Gomez-Leon, 545 F.3d 777 (9th Cir. Sept. 24, 2008) (California conviction for sale or offering to sell a controlled substance, under Health & Safety Code 11379(a), constituted "drug trafficking crime" for guidelines purposes: "According to the written plea agreement, Gomez pled guilty to Count Two of the written complaint, which alleged that he "did unlawfully sell, furnish, administer, give away, or offer to sell, furnish, administer, and give away ... controlled substances." In other words, Gomez distributed a controlled substance or attempted to distribute one by offering to do so. Both distribution and attempted distribution of a controlled substance are "drug trafficking offenses." See U.S.S.G. 2L1.2(b)(1)(A) cmts. 1(B)(iv) & 5. Consequently, the district court did not err in finding that Gomez's conviction under California Health & Safety Code section 11379(a) was a "drug trafficking offense.""). This decision suffers from a lack of any analysis of "solicitation" or cases like Rivera-Sanchez or Coronado-Durazo.

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION OF ASSAULT WITH A DEADLY WEAPON
Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Rhode Island conviction for violation of G.L.R.I. 11-1-9, solicitation to commit a felony, is a crime of violence under 18 U.S.C. 16(b), and triggers removal as an aggravated felony crime of violence with a sentence of one year imposed, where the charging document indicated that the noncitizen pleaded guilty to solicitation to commit assault with a deadly weapon), agreeing with United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006); Prakash v. Holder, 579 F.3d 1033, 1036-37 (9th Cir. 2009) (because there is a substantial risk that solicitation of rape and of assault will lead to violence, it is a crime of violence under 18 U.S.C. 16(b)).

First Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES " SOLICITATION
James v. Holder, 698 F.3d 24, *27 (1st Cir. Oct. 19, 2012) (The more difficult issue is whether James' conviction under section 21a"277(b) was for an offense that would also comprise trafficking"which is true of some but not necessarily all of the subordinate offenses listed in the Connecticut statute. The INA (through a series of cross-references) defines illicit trafficking to include the manufacture, distribution and dispensing of a controlled substance, as well as possession with intent to do any of these; INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), cf.18 U.S.C. 924(c)(2); 21 U.S.C. 841(a); but this definition does not appear to encompass offers and gifts, which are criminalized under the Connecticut statute.); citing United States v. Savage, 542 F.3d 959, 965 (2d Cir.2008) (Conn.Gen.Stat. 21a"277(b) plainly criminalizes, inter alia, a mere offer to sell a controlled substance, which might be made absent possession); Mendieta"Robles v. Gonzales, 226 Fed. App'x 564, 568"69 (6th Cir.2007) (conviction under state statute that criminalizes gift of drugs is not necessarily an illicit trafficking offense under INA); see also Matter of Davis, 20 I. & N. Dec. 536, 541 (B.I.A. 1992) (business or merchant nature is [e]ssential to the term trafficking under INA).).

Second Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING -- SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 723 F.3d 156, ___ (2d Cir. July 9, 2013) (per curiam) (New York conviction for sale of a controlled substance, under New York Penal Law 220.39, is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell: Unlike the Connecticut statute, NYPL 220.39 does not criminalize mere offers (or fraudulent offers) to sell narcotics. Under New York law, the offer must be bona fide, and a bona fide offer is one that is made with the intent and ability to follow through on the transaction.); distinguishing United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008) (fraudulent offers to sell are not offers for purposes of sentencing enhancements under the Sentencing Guidelines).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403,(2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403, ___ (2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), rejecting argument that because Texas law defines "delivery" as encapsulating "offering to sell," it is broader than the definition of "delivery" in the federal statute, which does not include offers to sell and because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under Health & Safety Code 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal), following United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) (Texas conviction for possession with intent to deliver a controlled substance, under Texas Health and Safety Code 481.112(a), constitutes a "controlled substance offense" for the purposes of a U.S.S.G. 2K2.1(a)(4)(A) sentence enhancement, because this offense is indistinguishable from "possession with intent to distribute," one of the offenses listed in the USSG definition of a "controlled substance offense").

AGGRAVATED FELONY - SOLICITATION
United States v. Price, 516 F.3d 285 (5th Cir. Feb. 1, 2008) (Texas conviction for violation of Texas Health and Safety Code 481.112 is not a controlled substances offense for purposes of sentencing for a felon in possession of a firearm, under U.S.S.G. 2K2.1(a)(2), because the statute is divisible and could include an "offer to sell" (solicitation) offense).

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (Texas conviction for delivery of controlled substance, in violation of Texas Health and Safety Code 481.112, was not a "drug trafficking offense" within meaning of USSG 16-level enhancement for illegal reentry after deportation, under USSG 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense; Tex. Health & Safety Code 481.002(8) defines "deliver" as "transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia," which is broader than the sentencing definition, which does not include solicitation).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD
United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SALE - CALIFORNIA SALE STATUTE IS OVERINCLUSIVE, INCLUDING BOTH OFFENSES THAT WOULD, AND OTHERS THAT WOULD NOT, TRIGGER THE GUIDELINES SENTENCE ENHANCEMENT
United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), is overinclusive and includes both drug trafficking offenses that properly trigger 16-level sentence enhancement for illegal reentry after deportation under USSG 2L1.2(b)(1)(A)(i) (Nov. 2005), and other offenses that do not).

Ninth Circuit

PRACTICE ADVISORY " CONTROLLED SUBSTANCES " SAFE HAVEN PLEA AGGRAVATED FELONY " DRUG TRAFFICKING " SAFE HAVEN PLEA
In cases charging sales and possession for sale of a controlled substance, defense counsel should consider pleading to a single count of Health & Safety Code 11352(a), under People v. Palmer, 58 Cal.4th 110 (2013), without identifying any particular factual basis. The specific offense for the plea should be that the defendant "offered to sell" an unidentified controlled substance in violation of 11352(a), striking any reference to a specific substance in the charge, making sure that the charge contains all the statutory alternatives. A sentence of less than 180 days is desirable. This plea should prevent an aggravated felony finding under 8 U.S.C. 1101(a)(43)(B) (drug trafficking offense). See United States v. Garza"Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (the federal term drug trafficking offense does not include transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance) (emphasis supplied); accord U.S. v. Ramirez-Macias, 2013 WL 4723453, at *2 (E.D.Wash. 2013). Note that in 2002, Health & Safety Code 11352 criminalized transport for personal use (which it no longer does). See also Young v. Holder, 697 F.3d 976, 983 (9th Circ.2012) ("Section 11352(a), however, criminalizes the mere solicitation of, or offer to sell, a controlled substance, which is not an aggravated felony, Leyva"Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999), as well as the sale of cocaine, which is one"), overruled on other grounds Almanza-Arenas v. Holder, 771 F.3d 1184, 1194 (9th Circ.2014), decision vacated pending en banc review, Almanza-Arenas v. Lynch, 785 F.3d 366, 367 (9th Cir. 2015). This conviction should not be an inadmissible controlled substance conviction, or crime of moral turpitude, since the minimum conduct analysis of Moncrieffe applies in the context of inadmissibility. The underlying conduct may establish a reason to believe ground of inadmissibility under INA 212(a)(2)(C)(i).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SOLICITATION TO COMMIT RAPE
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force).

AGGRAVATED FELONY - SOLICITATION
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force). NOTE: The court rejected the argument that solicitation of rape cannot be an aggravated felony because INA 101(a)(43)(U) lists attempt and conspiracy, but not solicitation:

There is no reason to conclude that the existence of subsection (U) forces courts to analyze inchoate offenses only under that provision. Each subsection of 1101(a)(43) provides an independent basis for determining what qualifies as an aggravated felony. See, e.g., Leyva-Licea, 187 F.3d at 1150 (examining whether solicitation to possess marijuana for sale is an aggravated felony under 1101(a)(43)(B)); Ramsey v. INS, 55 F.3d 580, 583 n. 5 (11th Cir. 1995) (holding that although 1101(a)(43)(U) was not added to the statute until after petitioner's conviction, his conviction for attempted lewd assault still was an aggravated felony because it was a "crime of violence" under 1101(a)(43)(F)). As in Ramsey, Prakash's crimes each qualify as a "crime of violence" under subsection 43(F). That they are not covered within subsection 43(U) does not matter, just as it does not matter that they are not covered within subsection 43(A) (murder, rape, or sexual abuse of a minor), subsection 43(B) (illicit trafficking in a controlled substance), or any other subsection of that statute. One is enough.

Id. at 1038-1039.

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."