Aggravated Felonies

            In United States v. Ibarra-Galindo,[283] the Ninth Circuit held that in the context of a criminal prosecution for illegal re-entry after deportation, a state felony conviction for first-offense simple possession of a controlled substance is an aggravated felony.  The court held that even though such an offense would only be a misdemeanor under federal criminal law, the fact that the State of Washington labeled the offense a felony made it a drug trafficking “aggravated felony”[284] for purposes of the U.S. Sentencing Guidelines.  This is the prevailing rule in many federal Circuits.

            The BIA now holds that if a conviction is a felony under the law of the jurisdiction in which the conviction arose, it falls within the definition of “drug trafficking crime,”[285] and is therefore included in most circuits within the definition of aggravated felony.[286]  Note that before it will be considered an aggravated felony under this 924(c) theory, the conviction must still also (a) contain all the elements of a federal drug offense (misdemeanor or felony), and (b) involve a controlled substance on the federal list.

It is not entirely clear whether it is sufficient for the state conviction to be a felony under the state-law test for determining what is a felony, or whether the maximum possible sentence under state law will be assessed under the federal-law test for what is a felony conviction.  The BIA decisions suggest the former,[287] but the Ninth Circuit suggests the latter.[288]

For an extended discussion of what is a felony for these purposes, and what is not, see § § 3.57-3.60, supra.

[283] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).

[284] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[285] 18 U.S.C. § 924(c)(2).

[286] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); Matter of Yanez-Garcia, 23 I. & N. Dec.  390, 394 (BIA 2002) (en banc).

[287] Matter of Yanez-Garcia, 23 I. & N. Dec.  390, 394 (BIA 2002) (en banc).

[288] United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir. July 12, 2002) (Nevada conviction of possession of a controlled substance qualified as an “aggravated felony” for illegal re-entry sentence enhancement purposes, even though the conviction would have been a misdemeanor if prosecuted under federal law and even though state law mandated probation for first-time offenders such as defendant, since a four-year prison sentence was suspended and thus a felony sentence would have been possible for this conviction); United States v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. Nov. 14, 2002) (Texas conviction of possession of marijuana, in violation of Health & Safety Code § 481.121(b)(3) (1995), which was a “state jail felony” with a maximum of two years, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(C), even though state law precluded a custodial sentence for the defendant as a first-time offender, since he could be sentenced to two years on a violation of community supervision).