Aggravated Felonies

Chapter

§ A.18 . Drug Trafficking

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Updates

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
CD4:19.58;SH:7.66, 8.3;AF:5.40, A.18, B.3 Carachuri-Rosendo v. Holder, 130 S.Ct 2577 (Jun. 14, 2010) (a second or subsequent conviction for simple possession of a controlled substance can qualify as a drug trafficking aggravated felony only if the fact of the first conviction is proven or admitted beyond a reasonable doubt in the course of the criminal proceeding regarding the second possession charge).

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SIMPLE POSSESSION - SENTENCING CONTEXT
Tostado-Tostado v. Carlson, __ S.Ct. __, 2007 WL 35906 (Jan. 8, 2007) ("The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Lopez v. Gonzales, 549 U.S. __, 127 S. Ct. 625 (2006)), vacating Tostado v. Carlson, 437 F.3d 706 (8th Cir., 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION IS NOT AN AGGRAVATED FELONY DRUG TRAFFICKING CONVICTION UNLESS IT WOULD BE A FELONY IF PROSECUTED UNDER FEDERAL LAW
Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws 22-42-5, 22-6-1, 22-3-3, did not constitute a "felony punishable under the Controlled Substances Act," under 18 U.S.C. 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law). http://laws.lp.findlaw.com/us/000/05547.html

The impact of this decision will be felt primarily in those states in which possessory offenses are punishable as felonies under state law. See, e. g., S. D. Codified Laws 22.42.5 (2004), 22.6.1 (2005 Supp.); Tex. Health & Safety Code Ann. 481.115 (West 2003); Tex. Penal Code Ann. 12.32.12.35 (West 2003). "Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. 893.13(6)(a).(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. 453.336(1), (2) (2004), 453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. 19.03.1.23(6) (Lexis Supp. 2005), 12.1.32.01(4) (Lexis 1997) (same); Ore. Rev. Stat. 161.605(3) (2003), Act Relating to Controlled Substances, 33, 2005 Ore. Laws p. 2006 (same)." Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006).

While this decision will benefit noncitizens with state felony simple possession convictions in those circuits previously holding them to be aggravated felony convictions, including the vast majority of circuits in the illegal-reentry sentence enhancement context, it is not without its drawbacks for some noncitizen respondents. The Lopez decision will subject a noncitizen defendant to deportation if his or her conduct was punishable as a felony under the federal Controlled Substances Act. "Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an 'aggravated felony.'" Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006) (Thomas, J. dissenting). While the argument is not precluded that in order to constitute an aggravated felony drug trafficking conviction, the state possession conviction must constitute both a felony under federal law, and be treated as a felony under state law, it appears inconsistent with the majority analysis in Lopez, and thus quite unlikely to be adopted.

BIA

AGGRAVATED FELONY " DRUG TRAFFICKING " SECOND POSSESSION CONVICTION
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 861-862 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, after prior conviction of violation of a Wichita municipal ordinance prohibiting possession of marijuana, constituted a drug trafficking aggravated felony conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since respondent was charged and convicted in Kansas for recidivist possession of a controlled substance).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

AGGRAVATED FELONY - DRUG TRAFFICKING - SMALL QUANTITY
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Matter of Thomas, 24 I.& N. Dec. 416, 418-419 (BIA Dec. 13, 2007) (Florida conviction for simple possession, in violation of Fla. Stat. 893.13(6)(a), which is a second possession conviction for the defendant, cannot constitute an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes, where there is no evidence that the court imposed additional punishment on basis of, or was even aware of, prior possession conviction; applying Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) to case arising in a circuit without caselaw directly on this issue). NOTE: the BIA also noted that it did not appear that Florida law allowed the court to impose any additional punishment on the basis of recidivism.

DRUG TRAFFICKING - SECOND POSSESSION
Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) (en banc) (New York second misdemeanor conviction of possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10, did not constitute a drug trafficking crime, under 18 U.S.C. § 924(c)(2), under the Second Circuit test of United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. Mar. 26, 1999), since state law held these convictions were misdemeanors with a maximum of three months in custody, and therefore not drug-trafficking aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for deportation purposes).

DRUG TRAFFICKING - SECOND POSSESSION
Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA May 14, 2002) (en banc) (Texas state court misdemeanor convictions for possession of two ounces or less of marijuana, in violation of Texas Penal Code § 481.121, punishable by "confinement in jail for a term not to exceed 180 days" are not felony convictions within the meaning of 18 U.S.C. § 924(c)(2) or "aggravated felonies" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - POSSESSION
Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002) (en banc) (Illinois felony conviction of possession of cocaine in violation of chapter 720, section 570/402(c) of the Illinois Compiled Statutes, constitutes a "drug trafficking crime" under 18 U.S.C. § 924(c)(2), and is an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - POSSESSION
Matter of KVD, 23 I. & N. Dec. 390 (BIA Dec. 10, 1999) (Texas felony conviction of simple possession of a controlled substance, which would be a misdemeanor if prosecuted under federal law, is not an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)), affirming Matter of LG, 21 I. & N. Dec. 89 (BIA Dec. 27, 1995), overruled by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002)).

DRUG TRAFFICKING - ACCESSORY AFTER THE FACT
Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime does not establish deportability as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because accessory after the fact is not listed as an inchoate offense (like attempt and conspiracy) that Congress chose to consider an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)).

DRUG TRAFFICKING - SALE
Matter of Ponce De Leon-Ruiz, 21 I. & N. Dec. 154 (BIA Jan. 3, 1996) (en banc) (Minnesota conviction of sale of marijuana, in violation of Minnesota Statutes § 152.025(1), constitutes an aggravated felony as a drug-trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite argument that law allowed reduction to misdemeanor on successful completion of probation).

DRUG TRAFFICKING - POSSESSION
Matter of LG, 21 I. & N. Dec. 89 (BIA Sept. 27, 1995) (en banc) (Louisiana conviction of drug possession, considered a felony under state law, could not be considered a "felony" under 18 U.S.C. § 924(c)(2), and is therefore not an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)), overruled in part by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).

DRUG TRAFFICKING - POSSESSION
Matter of LG, 20 I. & N. Dec. 905 (BIA Nov. 3, 1994) (federal conviction under 21 U.S.C. § 844(a) for simple possession of more than 5 grams of a mixture or substance which contains cocaine base is a conviction for an aggravated felony under INA § 101(a)(43), 8 U.S.C. 1101(a)(43), as is a state conviction analogous to such a federal conviction).

DRUG TRAFFICKING - USE OF FIREARM DURING DRUG TRAFFICKING CRIME
Matter of KL, 20 I. & N. Dec. 654 (BIA June 3, 1993) (federal conviction under 18 U.S.C. § 924(c)(1), for use of a firearm during a drug trafficking crime, is deportable under former 8 U.S.C. § 1251(a)(2)(A)(iii), as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)) (alternative holding).

DRUG TRAFFICKING - CONSPIRACY TO DISTRIBUTE
Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of conspiracy to distribute a controlled substance, in violation of article 27, section 286(a)(1) of the Maryland Annotated Code, constitutes a "drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988), and is therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), triggering deportation, because the underlying state trafficking offense would have been a felony under federal law, even though the state conspiracy conviction was a misdemeanor), holding modified by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).

DRUG TRAFFICKING - POSSESSION
Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of simple possession of a controlled substance does not fall within the common definition of "illicit trafficking" as used in INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - DISTRIBUTION
Matter of De La Cruz, 20 I. & N. Dec. 346 (BIA July 16, 1991) (federal conviction for distribution of cocaine in violation of 21 U.S.C. § 812, 841(a)(1), (b)(1)(C), and (b)(2), constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), criticized by Matter of Ellis, 20 I. & N. Dec. 641 (BIA Mar. 8, 1993).

DRUG TRAFFICKING - SALE
Matter of Roberts, 20 I. & N. Dec. 294 (BIA May 1, 1991) (Missouri conviction for felony sale of a controlled substance is sufficient to support a determination that the respondent is a drug trafficker within the meaning of INA § 101(a)(43), 8 U.S.C. 1101(a)(43)).

DRUG TRAFFICKING - POSSESSION FOR SALE
Matter of Barrett, 20 I. & N. Dec. 171 (BIA Mar. 2, 1990) (Maryland convictions for "possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense" in violation of article 27, section 286 of the Annotated Code of Maryland held aggravated felony convictions if the state conviction includes all the elements necessary for a conviction under the analogous federal drug felony offense, here 21 U.S.C. § 841(a)(1)).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun. 20, 2008) (Massachusetts conviction of possession with intent to distribute a Class D substance (marijuana), in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of the aggravated felony disqualification from eligibility for cancellation of removal for LPRs, rejecting the argument that the offense would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003).

DRUG TRAFFICKING - SECOND POSSESSION OF CONTROLLED SUBSTANCES
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts 1996 conviction of misdemeanor simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, § 34, and Massachusetts 2003 misdemeanor conviction of simple possession of crack cocaine, were not aggravated felony drug trafficking convictions under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), not because they were classified as misdemeanors under state law, but because they were simple possession offenses and the prosecution, in the second case, did not plead and prove the prior possession conviction, and the record of conviction in the second case does not contain facts that would convert it from a misdemeanor to a felony conviction if it had been prosecuted in federal court).

DRUG TRAFFICKING - DISTRIBUTION
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, § 32C(a), constituted an aggravated felony drug trafficking conviction under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

DRUG TRAFFICKING - POSSESSION
United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir. June 19, 1997), cert. denied, 522 U.S. 957 (1997) (Texas felony conviction for possession of cocaine, under Tex. Health & Safety Code § 481.115(f) (1996), was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cuevas, 75 F.3d 778 (1st Cir. Feb. 7, 1996) (Rhode Island second conviction of drug possession constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

DRUG TRAFFICKING - POSSESSION
United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. Jan. 30, 1996) (Rhode Island conviction of felony drug possession offense that would only be a misdemeanor under federal law but was felony under laws of convicting state constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

DRUG TRAFFICKING - POSSESSION
United States v. Smith, 36 F.3d 128 (1st Cir. Sept. 7, 1994), cert. denied, 513 U.S. 1008 (1994) (Rhode Island conviction of felony drug possession offense that would only be a misdemeanor under federal law but was felony under laws of convicting state constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Rodriguez, 26 F.3d 4 (1st Cir. June 17, 1994) (Massachusetts conviction for possession with intent to distribute illegal drug was a "trafficking" crime and therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

DRUG TRAFFICKING - SECOND POSSESSION
United States v. Forbes, 16 F.3d 1294 (1st Cir. Feb. 24, 1994) (New York second conviction for criminal possession of controlled substance under N.Y. Penal Law § 220.09 was punishable under Controlled Substances Act as a felony and, therefore, defendants conviction qualified as an aggravated felony justifying enhanced sentence under U.S.S.G. § 2L1.2 for illegal re-entry purposes).

DRUG TRAFFICKING - THIRD POSSESSION
Amaral v. INS, 977 F.2d 33 (1st Cir. Oct. 13, 1992) (Rhode Island conviction of possession of a controlled substance, in violation of R.I.Gen.Laws § 21-28-4.01(C)(1)(a), was a felony under state law and would have been a felony under federal law, because of two prior drug convictions, and therefore constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

Lower Courts of First Circuit

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § 32C(a) and M.G.L. 274 1, did not constitute "felony," and was therefore not "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendants offense would have been classified as felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).

DRUG TRAFFICKING - DISTRIBUTION
Fernandez-Santander v. Thornburgh, 751 F.Supp. 1007 (D.Me. Nov. 9, 1990) (Maine conviction for distribution of controlled substances, in violation of 17-A M.R.S.A. § 1103, qualified as a "drug trafficking crime" that in turn qualified as an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), that justified denial of immigration bond pending deportation, since offense would have been a felony if prosecuted under federal law), overruled, 930 F.2d 906 (1st Cir. Mar. 14, 1991) (Table).

Second Circuit

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.).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION HELD NOT TO BE AN AGGRAVATED FELONY
United States v. Ayon-Robles, ___ F.3d ___, 2009 WL 448184 (2d Cir. Feb. 24, 2009) (per curiam) (California second conviction of simple possession of a controlled substance did not constitute an aggravated felony, under INA 101(a)(43)(B), for illegal re-entry sentencing purposes), following Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008) (second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. 1101(a)(43)(B), where the noncitizen did not admit the prior in being convicted a second time).

AGGRAVATED FELONY - DRUG TRAFFICKING- GRATUITOUS DISTRIBUTION OF A SMALL AMOUNT OF MARIHUANA
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION CONVICTION NOT AGGRAVATED FELONY
Alsol v. Mukasey, 548 F.3d 207 (2d Cir. Nov. 14, 2008) (New York conviction for simple possession, in violation of New York Penal Law 220.03, is not an aggravated felony, even though it was a subsequent conviction; "second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense. We further clarify that our decision in United States v. Simpson, 319 F.3d 81 (2d Cir.2002), did not hold to the contrary.").

DRUG TRAFFICKING
Durant v. ICE, 393 F.3d 113, 114 n.1 (2d Cir. Dec. 16, 2004) (court declined to address whether two state simple possession convictions constitute an aggravated felony for immigration purposes, so this question is still open in the Second Circuit); contra, Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 385 (BIA 2007), citing United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second possession conviction constitutes aggravated felony for sentencing purposes only). Thanks to Jared Brown.

DRUG TRAFFICKING - SALE OF HALLUCINOGEN/NARCOTIC
Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. Aug. 6, 2003) (Connecticut conviction under Conn. Gen. Stat. § 21a-277(a) constitutes conviction for "illicit trafficking in a controlled substance" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - POSSESSION
United States v. Simpson, 319 F.3d 81 (2d Cir. Dec. 24, 2002) (New York convictions for misdemeanor possession of a controlled substance, under New York Penal Law § 221.10, 221.15, 221.40 (2000), constituted aggravated felonies warranting 8-level enhancements under U.S.S.G. § 2L1.2(b) of defendants sentence for illegal re-entry).

DRUG TRAFFICKING - POSSESSION
United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. Mar. 26, 1999), cert. denied, 528 U.S. 880, 120 S.Ct. 191 (1999) (New York conviction of felony attempted criminal possession of cocaine in the first degree, in violation of N.Y. Penal Law § 110.05(1), constituted an "aggravated felony " under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), justifying 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) to illegal re-entry sentence, even though conviction would have been only a misdemeanor if prosecuted in federal court).

DRUG TRAFFICKING - SALE
United States v. Paredes-Batista, 140 F.3d 367 (2d Cir. Mar. 18, 1998), cert. denied, 525 U.S. 859, 119 S.Ct. 143 (Oct. 5, 1998) (New York conviction under N.Y. Penal Law § 220.31, which provides that "[a] person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance," constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), triggering sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction).

DRUG TRAFFICKING - POSSESSION
Aguirre v. INS, 79 F.3d 315 (2d Cir. Mar. 22, 1996) (New York conviction of possession of a controlled substance in the second degree, in violation of N.Y.Pen.L. § 220.18, that was felony under state law but not federal law, did not qualify as an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of deportation), overruling Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994).

DRUG TRAFFICKING - SALE
United States v. Polanco, 29 F.3d 35 (2d Cir. July 12, 1994) (New York conviction for sale of five grams of cocaine, a controlled substance, in violation of N.Y.Penal Law § 220.34, a Class C felony, constituted an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of illegal re-entry sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

DRUG TRAFFICKING - POSSESSION
Jenkins v. INS, 32 F.3d 11 (2d Cir. July 12, 1994) (New York conviction that was felony under state law, but misdemeanor under federal law, qualified as conviction of "aggravated felony" under statute regarding automatic stay of deportation), overruled by Aguirre v. INS, 79 F.3d 315 (2d Cir. Mar. 22, 1996).

Lower Courts of Second Circuit

DRUG TRAFFICKING - MISDEMEANOR SALE OF MARIJUANA
Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York misdemeanor conviction of Criminal Sale of Marijuana in the Fourth Degree, in violation of New York Penal Law § 221.40, constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), under the common-sense definition of illicit trafficking, since the defendant was convicted of acting as a businessman or merchant in connection with the trading, selling or dealing in controlled substances), ruling that the BIA decision in Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) is not in accord with the law of the Second Circuit, as expressed in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002)).

DRUG TRAFFICKING - SALE
Manzueta v. Ashcroft, 206 F.Supp.2d 386 (W.D.N.Y. Mar. 29, 2002) (New York conviction for Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.39, constituted illicit trafficking in a controlled substance, an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - SALE
Romero v. Reno, 198 F.Supp.2d 276 (W.D.N.Y. Sept. 25, 2001) (New York conviction for criminal sale of controlled substance in the third degree, in violation of N.Y. Penal Law § 220.43, constituted conviction for aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - SALE
United States v. Graham, 927 F.Supp. 619 (W.D.N.Y. June 18, 1996) (New York misdemeanor conviction for criminal sale of marijuana constituted aggravated felony under former INA § 101(a)(43)(C), 8 U.S.C. 1101(a)(43)(C) (now INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)), even though prior conviction was misdemeanor under New York state law).

DRUG TRAFFICKING - ATTEMPTED SALE
United States v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. Nov. 13, 1995), affd, 131 F.3d 132 (2d Cir. Dec. 2, 1997) (Table) (New York convictions of attempted criminal sale of cocaine in the third degree constituted "illicit trafficking in a controlled substance," and were therefore aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), disqualifying the noncitizen from receiving voluntary departure).

DRUG TRAFFICKING - SALE
Mejia-Ruiz v. INS, 871 F.Supp. 159 (E.D.N.Y. Dec. 16, 1994) (New York felony conviction for criminal sale of cocaine in the fifth degree was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of eligibility to be admitted into United States on parole where conviction would have been punishable as felony if prosecuted under federal law).

DRUG TRAFFICKING - DISTRIBUTION
Kellman v. District Director, U.S. INS, 750 F.Supp. 625 (S.D.N.Y. Nov. 6, 1990) (New York conviction for distribution of a controlled substance, in violation of New York Penal Law § 220.39, constituted aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for removal purposes).

DRUG TRAFFICKING - ATTEMPTED SALE
Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. Aug. 8, 1990) (New York conviction for attempted criminal sale of controlled substances in the third degree, in violation of N.Y. Penal Law § 220.39, constitutes an "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and triggers mandatory detention).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a drug trafficking aggravated felony).

AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).

AGGRAVATED FELONY - DRUG TRAFFICKING - DRUG POSSESSION AND LESSER OFFENSES - DISTRIBUTION OF A SMALL AMOUNT OF MARIJUANA
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

NOTE: the BIA, in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), disagreed, finding that the "gratuitous distribution of a small amount of marijuana" statute was an affirmative defense, which the defendant must prove. Counsel can argue that, in the case of a state conviction, there is no such statutory exception and defense counsel in state court would have had no reason to submit proof that only a small amount was involved. Therefore, to require that this extra showing have been made before the state court is unreasonable. Thanks to Jonathan Moore.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Jeune v. Attorney Gen. of the U.S., 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction for violation of 35 Pa. Cons. Stat. Ann. 780-113(a)(30), manufacture, delivery, or possession with intent to manufacture or deliver, of a controlled substance, is not categorically an "aggravated felony" drug trafficking crime because the offense may be committed for personal use, and is not necessarily an offense punishable as a felony under federal law, since the offense may be violated by distribution of a small amount of marijuana without remuneration, which is treated a misdemeanor under 21 U.S.C. 841(a)(1)), following Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006) (conviction of violating 35 Pa. Cons.Stat.Ann. 780-113(a)(30) is not categorically an aggravated felony, since not every violation of the manufacturing provision involves trading or dealing, as there may be circumstances in which a defendant simply manufactured drugs for his own personal use).

DRUG TRAFFICKING - POSSESSION WITH INTENT TO DELIVER
Garcia v. Attorney General, ___ F.3d ___, 2006 WL 2529471 (3d Cir. Sept. 5, 2006) (Pennsylvania conviction of two counts of manufacturing, delivering, or possessing a controlled substance with the intent to deliver, under 35 Pa. Stat. Ann. § 780-113(a)(30), constitutes an "aggravated felony" for immigration purposes; even though statute was phrased in disjunctive, record of conviction including complaint indicated defendant had sold, delivered, and possessed controlled substances with intent to deliver, which sufficiently established trafficking element to constitute drug trafficking aggravated felony under "illicit trafficking" route of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), distinguishing Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).

DRUG TRAFFICKING - POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (New Jersey conviction for possession of marijuana with intent to distribute could not be determined to be aggravated felony since court could not determine from state court judgment whether crime could be categorized as a felony under state law involving "drug trafficking").

DRUG TRAFFICKING - POSSESSION FOR DISTRIBUTION NOT SALE
Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002) (Delaware conviction of "trafficking in cocaine," in violation of Del.Code Ann. tit. 16, § 4753A(2)(a), that was based on possession of between 5 and 50 grams of cocaine, did not constitute an "aggravated felony " under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, since offense did not contain a trading or dealing element and was not punishable as a felony under federal law).

DRUG TRAFFICKING - SECOND POSSESSION
Steele v. Blackman, 236 F.3d 130 (3d Cir. Jan. 2, 2001) (New York second misdemeanor conviction for distribution of 30 grams or less of marijuana without remuneration was not for a hypothetical offense punishable as a felony under the federal Controlled Substances Act and therefore was not an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for immigration purposes).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Maroquin-Bran, 587 F.3d 214 (4th Cir. Nov. 9, 2009) (California conviction for violation of Health & Safety Code 11360(a) is not necessary a "drug trafficking offense" for illegal re-entry sentencing purposes, since the statute of conviction is divisible and includes transportation for personal use); accord, United States v. Medina-Almaguer, 559 F.3d 420, 422-23 (6th Cir. 2009); United States v. Lopez-Salas, 513 F.3d 174, 177-78, 180 (5th Cir. 2008) (per curiam); United States v. Garcia-Medina, 497 F.3d 875, 877 (8th Cir. 2007); United States v. Almazan-Becerra, 482 F.3d 1085, 1089-90 (9th Cir. 2007); cf. United States v. Herrera-Roldan, 414 F.3d 1238, 1240 (10th Cir. 2005); United States v. Madera-Madera, 333 F.3d 1228, 1231-33 (11th Cir. 2003).

DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the offense was punishable by up to four years imprisonment).

DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Wilson, 316 F.3d 506 (4th Cir. Jan. 16, 2003) (Virginia conviction of simple possession of an unknown quantity of cocaine, a controlled substance, a felony under state law, Va.Code § 18.2-250(a), constituted an aggravated felony, for purposes of enhancing a sentence for illegal re-entry pursuant to U.S.S.G. § 2L1.2, even though it would only have been chargeable as a misdemeanor in federal court).

Fifth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " MANUFACTURING
United States v. Reyes-Mendoza, ___ F.3d ___ (5th Cir. Dec. 15, 2011) (California conviction of manufacturing a controlled substance, in violation of Health & Safety Code 11379.6, is not categorically a drug trafficking offense, under USSG 2L1.2 (which includes an offense under . . . state . . . law that prohibits the manufacture . . . of a controlled substance), because the word manufacture has been interpreted more broadly under California law than under the federal Sentencing Guidelines, and there are some acts that would violate Health & Safety Code 11379.6 without qualifying as drug trafficking offenses for purposes of USSG 2L1.2); see United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th Cir. 2006) (possession of a precursor chemical with intent to manufacture a controlled substance was not a drug trafficking offense for purposes of USSG 2L1.2, and was not substantially equivalent to attempted manufacture of a controlled substance.); United States v. Forester, 836 F.2d 856, 859-61 (5th Cir. 1988) (defendant could not be sentenced for both production of a precursor with intent to manufacture a controlled substance and the attempted manufacture of a controlled substance).

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
Moncrieffe v. Holder, ___ F.3d ___, ___, 2011 WL 5343694 (5th Cir. Nov. 8, 2011) (Georgia conviction of possession of marijuana with intent to distribute, in violation of Ga. Code 16"13"30(j), which includes specifically, distribution of a small amount of marijuana for no remuneration, was nonetheless a drug-trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); Moncrieffe bore the burden to prove that he was convicted of only misdemeanor conduct.); see United States v. Walker, 302 F.3d 322, 324 (5th Cir. 2002) (the default sentencing range for a marijuana distribution offense is the CSA's felony provision, 21 U.S.C. 841(b)(1)(D), rather than the misdemeanor provision); see Matter of Aruna, 24 I. & N. Dec. 452 (BIA Feb. 26, 2008) (a state conviction for possessing an indeterminate amount of marijuana with intent to distribute is considered an aggravated felony); Garcia v. Holder, 638 F.3d 511, 516 (6th Cir. 2011) (the default punishment under 21 U.S.C. 841 is a felony, where the statute punishes gratuitous distribution of a small amount as well as sales, so a conviction constitutes a drug-trafficking aggravated felony even absent record evidence of the quantity or price); United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (same); Julce v. Mukasey, 530 F.3d 30 (1st Cir. June 20, 2008) (same); Jeune v. Attorney General, 476 F.3d 199 (3d Cir.2007) (same); but see Martinez v. Mukasey, 551 F.3d 113, 118 (2d Cir.2008) (default is a misdemeanor: only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant to the categorical approach); Julce v. Mukasey, 530 F.3d 30, 34"36 (1st Cir. 2008) (same); Jeune v. Attorney General, 476 F.3d 199 (3d Cir. 2007) (same).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - SECOND STATE DRUG CONVICTION NOT AGGRAVATED FELONY UNDER GUIDELINES BECAUSE PRIOR NOT SHOWN TO HAVE BEEN FINAL PRIOR TO COMMISSION OF SECOND OFFENSE
United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. May 27, 2009) (defendant's first state drug possession conviction was not "final" before commission of second possession offense, and thus second offense could not be aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since it could not have constituted felony conviction if it had been prosecuted in federal court, for purposes of imposing a sentence enhancement under USSG 2L1.2(b)(1) for illegal reentry; "to show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrades July conviction was 'no longer subject to examination on direct appeal' within the meaning of Morales, and (2) that it was not subject to discretionary review by any court."); see United States v. Morales, 854 F.2d 65, 69 (5th Cir. 1988); Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) (discretionary review requirement).

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 - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF TELEPHONE TO FACILITATE
United States v. Pillado-Chapparo, 543 F.3d 202 (5th Cir. Sept. 17, 2008) (federal conviction for use of a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. 843(b), was a drug trafficking offense for illegal re-entry purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Fuentes-Oyervides, 541 F.3d 286 (5th Cir. Aug. 13, 2008) (Ohio conviction for violation of Ohio R.C. 2925.03(A)(2), making it unlawful to knowingly "prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knew or had reasonable cause to believe the controlled substance was intended for sale or resale by the offender or another" was a "drug trafficking" crime for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. Jun. 4, 2008) (California conviction of sale of tar heroin, in violation of Health & Safety Code 11352, constituted a drug trafficking aggravated felony for illegal re-entry sentencing purposes; although misdemeanor possessory offense is not an aggravated felony by itself, because the conviction was a misdemeanor, defendants prior drug conviction made the conviction a felony under the hypothetical federal prosecution analysis; court did not address argument that prior must be proven in subsequent conviction), following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005) (second state conviction of possession of a controlled substance constituted an aggravated felony, triggering an eight-level enhancement of an illegal reentry sentence, because it "could have been punished under [21 U.S.C.] 844(a) as a felony with a penalty of up to two years imprisonment).

AGGRAVATED FELONY - DRUG TRAFFICKING - TRANSPORTATION OF AT LEAST 100 POUNDS OF MARIJUANA
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", under General Statutes of North Carolina 90-95(h), constituted a "drug trafficking offense" under USSG 2L1.2(b)(1)(A)(i) for purposes of imposing a 16-level sentence enhanccment for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 3173614 (5th Cir. Oct. 31, 2007) (Georgia conviction for possession and sale of a controlled substance, in violation of Ga. Code 16-13-31(e), is a drug trafficking offense for illegal re-entry sentencing purposes).

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 - DRUG TRAFFICKING - POSSESSION
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 2153214 (5th Cir. Jul. 27, 2007) (Georgia conviction for violation of Ga.Code Ann. 16-13-31(e) (1999), punishing any "person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine" is categorically a "drug trafficking" offense for illegal re-entry sentencing purposes, because Georgias sentencing laws impute an intent to distribute to a conviction for possession of 28 grams or more of methamphetamine.) Note: while the appellant raised the issue of whether the prior offenses must be found by a jury to convict of illegal re-entry, the appellant apparently did not raise the issue of whether Georgias sentencing scheme could alter the nature of the offense (from simple possession to drug trafficking), absent as specific finding by a jury.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Salazar-Regino v. Trominski, __ F.3d __, 2007 WL 457992 (5th Cir. Feb. 14, 2007) (vacating prior decision in light of Lopez v. Gonzales, 549 U.S. ___, 127 S. Ct. 625 (2006), and remanding to BIA).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION CONVICTION NOT AN AGGRAVATED FELONY
United States v. Estrada-Mendoza, 472 F.3d 689, 2007 WL 6583 (5th Cir. Jan. 3, 2007) (Texas conviction of possession of a controlled substance, did not warrant 8-level sentence enhancement for illegal reentry after deportation, since it would not constitute a felony if prosecuted under federal law, and was therefore not an aggravated felony drug trafficking offense under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

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).

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Smith v. Gonzales, ___ F.3d ___ (5th Cir. Oct. 24, 2006) (second state misdemeanor conviction for possession of marijuana did not qualify as an "aggravated felony" for immigration purposes because second possession only becomes a felony under federal law upon conviction of a second offense after conviction of a prior simple possession; in this case, there was no effective prior conviction under 21 U.S.C. 844(a) because the first conviction was not yet final). http://caselaw.lp.findlaw.com/data2/circs/5th/0660020cv0p.pdf

DRUG TRAFFICKING - POSSESSION OF LISTED CHEMICAL WITH INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE
United States v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. Jan. 12, 2006) (federal conviction for conspiracy to possess a listed chemical (ephedrine) with intent to manufacture methamphetamine, under 21 U.S.C. § 841(d)(1), held not to qualify as a "drug-trafficking offense" under U.S.S.G. § 2L1.2, for purposes of imposing a sentence enhancement to an illegal re-entry sentence, because the U.S. Sentencing Commission specifically included this offense under U.S.S.G. § 4B1.2 cmt. n.1, but declined to do so under 2L1.2).

DRUG TRAFFICKING - PURCHASE FOR SALE
United States v. Palacios-Quinonez, 431 F.3d 471 (5th Cir. Nov. 29, 2005) (California conviction of "possession" of a controlled substance for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i), includes constructive possession; purchase for sale of a controlled substance, in violation of California Penal Code § 11351 is an aggravated felony drug trafficking offense for sentencing purposes).

DRUG TRAFFICKING
Salazar-Regino v. Trominski, 415 F.3d 436 (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), even though it did not constitute grounds for removal under the hypothetical federal felony test dictated by the BIA at the time the plea of guilty was entered, because it would only have constituted a misdemeanor if prosecuted in federal court).

DRUG TRAFFICKING
United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal. Health & Safety Code § 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2003), for illegal re-entry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

DRUG TRAFFICKING - SOLICITATION TO TRANSPORT FOR SALE
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Arizona conviction of felony solicitation to transport marijuana for sale, in violation of A.R.S. § 13-1002, subd. B, par. 2, 13-3405, subd. B, par. 11, is a controlled substance conviction for deportation purposes), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA May 28, 1992).

DRUG TRAFFICKING - TRAVEL ACT CONVICTION
United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (federal: since courts consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense "by its nature" fits a certain definition, contrary to the question whether a conviction constitutes a "crime of violence" under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).

DRUG TRAFFICKING - POSSESSION
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), 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).

DRUG TRAFFICKING - POSSESSION
United States v. Rivera, 265 F.3d 310 (5th Cir. Sept. 7, 2001), cert. denied, 122 S.Ct. 1105 (2002) (Texas felony conviction for possession of controlled substance qualified as "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purpose of enhancing illegal re-entry sentence).

DRUG TRAFFICKING - POSSESSION
United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001), cert. denied, 122 S.Ct. 305 (2001) (Colorado felony heroin possession conviction, in violation of Colo.Rev.Stat. Ann. § 18-18-203, 18-18-405, 18-1-105, was a "drug trafficking crime" under 18 U.S.C. § 924(c), and, therefore, an "aggravated felony" within the meaning of INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing sentence for illegal re-entry).

DRUG TRAFFICKING - POSSESSION
United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. Dec. 4, 1997) (Texas felony conviction for possession of marijuana, in violation of Texas Health & Safety Code § 481.121, was "aggravated felony" as defined by INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) requiring 16-level increase under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry conviction), superseded by statute as stated in United States v. Sanchez, 179 F.Supp.2d 689 (W.D.Tex. Dec. 26, 2001).

DRUG TRAFFICKING - POSSESSION FOR DISTRIBUTION
United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. June 7, 1996), cert. denied, 520 U.S. 1105, 117 S.Ct. 1109 (1997) (Texas conviction of possession of marijuana with intent to distribute constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for deportation purposes).

DRUG TRAFFICKING - CONSPIRACY TO POSSESS FOR SALE
Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was "drug trafficking crime," and was thus an "aggravated felony " under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

Lower Courts of Fifth Circuit

DRUG TRAFFICKING - POSSESSION FOR PERSONAL USE
United States v. Sanchez, 179 F.Supp.2d 689 (W.D.Tex. Dec. 26, 2001) (Texas felony conviction for possession of cocaine for personal use was not an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) (effective Nov. 1, 2001), requiring eight-level increase in offense level of illegal re-entry conviction, since the new Guidelines in U.S.S.G. § 2L1.2, comment (n.1(B)(iii)), explicitly define "drug trafficking offense" to exclude convictions for simple possession, felonies or not), vacated by United States v. Balderas-Sanchez, 57 Fed.Appx. 212 (5th Cir. Jan. 8, 2003).

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO DELIVER
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (Michigan conviction attempted possession of marijuana with the intent to deliver [actual, constructive, or attempted transfer from 1 person to another] less than five kilograms, in violation of Mich. Comp. Laws 333.7401(2)(d)(iii), constituted a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though no commercial element was required to constitute the offense, because the federal Controlled Substances Act similarly prohibits a person from possess[ing] with intent to ... distribute ... a controlled substance, 21 U.S.C. 841(a)(1), as a felony, rejecting the argument that government must negate the misdemeanor exception under which gratuitous distribution of a small amount of marijuana constitutes only a misdemeanor under 21 U.S.C. 841(b)(4) since the small amount exception is not an element of the offense); see United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (the amount of marijuana involved need not be proven to the jury in order to convict under 841(a) or punish under 841(b)(1)(D)); United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that 841(b)(1)(D) is the default provision for possessing an undetermined amount of marijuana with the intent to distribute the drug); following Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); contra, Martinez v. Mukasey, 551 F.3d 113, 120 (2d Cir. 2008) ([W]e look no further than to the fact that Martinez's conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. 841(b)(4).); Jeune v. Attorney Gen., 476 F.3d 199, 205 (3d Cir. 2007) (the least culpable conduct involved a small amount of marijuana and no remunerative exchange, Jeune's state offense was deemed punishable under the misdemeanor provision of 21 U.S.C. 841(b)(4) and therefore not an aggravated felony).

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) (California conviction of violation of Penal Code 11352(a) ["transport, import ..., sell, furnish, administer, or give away" a controlled substance or to "offer[ ]" to do those things], is divisible for purposes of imposing a 16-level sentence enhancement for illegal reentry because the prior deportation arose from a "drug trafficking offense," within the meaning of USSG 2L1.2(b)(1)(A), since the broad sweep of the California statute covers conduct that comes within the Guideline's definition of a "drug trafficking offense," as well as conduct that falls outside of it, i.e., "transport[ation]" of controlled substances and "offers" to perform the proscribed activities).

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SECOND FELONY
Rashid v. Mukasey, 531 F.3d 438 (6th Cir. Jun. 26, 2008) (Michigan conviction of possession of a controlled substance, where the defendant has a prior conviction for the same offense, is not an aggravated felon under INA 101(a)(43)(B) for immigration purposes; "The first and only hypothetical that should be considered under the hypothetical federal felony approach is whether the crime that an individual was actually convicted of would be a felony under federal law. See Steele, 236 F.3d at 138 (explaining that the aggravated felony disability under the [INA] applies only if there has been a conviction of a felony). But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical. We conclude that inclusion of the word hypothetical in the hypothetical federal felony approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.").

DRUG TRAFFICKING – SIMPLE POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Ohio conviction for misdemeanor simple possession of a controlled substance, in violation of Ohio Rev.Code Ann. § 2925.11(A), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).

DRUG TRAFFICKING – SIMPLE POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Kentucky conviction for misdemeanor simple possession of a controlled substance, in violation of Ky.Rev.Stat. Ann. § 218A.1415(1), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).

DRUG TRAFFICKING – SECOND POSSESSION
United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (second state misdemeanor drug possession conviction was not a "hypothetical federal felony" for aggravated felony purposes, based upon recidivist provision of Controlled Substance Act (CSA), because the second offense occurred before the first drug possession conviction became final).

DRUG TRAFFICKING - POSSESSION OF HEROIN
Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a "fifth degree felony" under Ohio law, which is punishable by a maximum term of 12 months imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

DRUG TRAFFICKING - IMPORTATION OF COCAINE
United States v. Murillo-Iniguez, 318 F.3d 709 (6th Cir. Feb. 5, 2003) (federal conviction of importation of cocaine, in violation of 21 U.S.C. § 952(a)(1), constituted an aggravated felony for purposes of imposing a sentence enhancement for illegal re-entry).

DRUG TRAFFICKING - POSSESSION FOR SALE
Pulice v. INS, 218 F.3d 505 (6th Cir. June 13, 2000) (federal conviction of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) constituted aggravated felony under INA 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).

DRUG TRAFFICKING - DELIVERY
Nakhleh v. INS, 38 F.3d 829 (6th Cir. Oct. 27, 1994) (Michigan conviction of illegal delivery of cocaine, in violation of Mich.Comp. Laws 333.7401, constitutes an aggravated felony for immigration purposes under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
Fernandez v. Mukasey, 544 F.3d 862 (7th Cir. Sept. 15, 2008) (subsequent conviction for simple possession of marijuana triggers removal as an aggravated felony drug trafficking offense, even where the state of conviction did not charge or prove that the defendants had previously been convicted of simple possession).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Pacheco-Diaz, __ F.3d __, 2007 WL 3071682 (7th Cir. Oct. 23, 2007) (Illinois conviction for felony simple possession of marijuana, in violation of 720 ILCS 550/4, is an aggravated felony for sentencing purposes where noncitizen has prior possession conviction; court rejected argument that state court must have proven prior conviction as an element of the second conviction, finding that it only needs to be hypothetically possible that the noncitizen could have been subject to the federal recidivist enhancement).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Gutnik v. Gonzales, ___ F.3d ___, 2006 WL 3423144 (7th Cir. Nov. 29, 2006) (Illinois felony conviction of possession of heroin is not an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii) because at the federal level that crime is punishable as a misdemeanor), following Gonzales-Gomez v. Achim, 441 F.3d 532 (7th Cir. 2006).

DRUG TRAFFICKING - POSSESSION NOT AGGRAVATED FELONY SINCE WOULD ONLY HAVE BEEN MISDEMEANOR IN FEDERAL COURT
Gonzalez-Gomez v. Achim, __ F.3d __, 2006 WL 708678 (7th Cir. Mar. 22, 2006) (state felony conviction for drug possession is not an aggravated felony drug trafficking offense where the offense would only be punishable as a misdemeanor under the applicable federal statute).

DRUG TRAFFICKING - DISTRIBUTION OF MARIJUANA
Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1m)(h)(1), held an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); argument that THC falls within definition of marijuana and therefore gratuitous distribution of small amount of marijuana does not constitute a felony under federal law not addressed).

DRUG TRAFFICKING - POSSESSION FOR SALE
Jideonwo v. INS, 224 F.3d 692 (7th Cir. Aug. 23, 2000) (federal conviction of conspiracy to possess with intent to distribute heroin is an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of disqualifying a noncitizen from eligibility for a discretionary waiver of deportation).

DRUG TRAFFICKING - CONSPIRACY TO DISTRIBUTE
Turkhan v. INS, 123 F.3d 487, 488 (7th Cir. Aug. 12, 1997) (federal conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 constituted aggravated felony conviction under INA 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for deportation purposes), overruled on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. Dec. 22, 1998).

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Samaniego-Rodriguez, 32 F.3d 242, 243 n.3 (7th Cir. Aug. 4, 1994), cert. denied, 514 U.S. 1052 (Apr. 3, 1995) (Illinois conviction of possession of cocaine with intent to deliver is an aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing sentence for illegal re-entry).

Lower Courts of Seventh Circuit

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Galvan-Zermeno, 52 F.Supp.2d 922 (C.D.Ill. May 21, 1999) (Illinois felony conviction for possession of a controlled substance with intent to deliver was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, since state felony is considered a felony under 18 U.S.C. § 924(c)).

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).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF CONTROLLED SUBSTANCES NOT AGGRAVATED FELONIES UNDER LOPEZ
Tostado v. Carlson, 481 F.3d 1012 (8th Cir. April 2, 2007) (Illinois convictions for the unlawful possession of cocaine and unlawful possession of cannabis are not aggravated felonies for immigration purposes), following Lopez v. Gonzales, ___ U.S. ___, 127 S.Ct. 625 (2006).

DRUG TRAFFICKING - POSSESSION
Tostado v. Carlson, 437 F.3d 706 (8th Cir. Feb. 3, 2006) (Illinois felony conviction for unlawful possession of cocaine and unlawful possession of cannabis held a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, even though the offense would have been a misdemeanor if prosecuted in federal court, because "a drug trafficking crime is an offense which would be punishable under 21 U.S.C. § 801 et seq., and which would qualify as a felony under either state or federal law."), citing Lopez v. Gonzales, 417 F.3d 934, 936 (8th Cir. 2005), and quoting United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997).

DRUG TRAFFICKING - SIMPLE POSSESSION
Lopez v. Gonzales, 417 F.3d 934 (8th Cir. Aug. 9, 2005) (South Dakota felony offense of simple possession of marijuana is an aggravated felony for immigration purposes, even though the offense would be a misdemeanor under federal law).

DRUG TRAFFICKING - AIDING POSSESSION FOR SALE
United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. July 7, 1997) (federal conviction of aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction was for aiding and abetting).

DRUG TRAFFICKING - BUYING MARIJUANA
United States v. Briones-Mata, 116 F.3d 308 (8th Cir. May 12, 1997) (Florida felony conviction for buying marijuana constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction would have been a misdemeanor under federal law).

DRUG TRAFFICKING - POSSESSION
United States v. Haggerty, 85 F.3d 403 (8th Cir. June 10, 1996) (California conviction of possession of methamphetamine, in violation of California Health & Safety Code § 11377(a), constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), since it was felony under California law punishable by more than one year in custody, and California court did not declare it to be a misdemeanor).

DRUG TRAFFICKING - DELIVERY
United States v. Martinez-Amaya, 67 F.3d 678, 682 (8th Cir. Oct. 10, 1995) (Oregon conviction for delivery of cocaine constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of disqualifying noncitizen from eligibility for relief from deportation, so as to prevent him from showing prejudice from alleged error in deportation hearing, as predicate for conviction of illegal re-entry after deportation).

Ninth Circuit

CONTROLLED SUBSTANCES " PARAPHERNALIA " UNLISTED SUBSTANCE
Madrigal-Barcenas v. Lynch, ___ F.3d ___, 2015 WL 4716767 (9th Cir. Aug. 10, 2015) (Nevada drug paraphernalia conviction, under NRSA 453.566, constitutes a controlled substance conviction, for purposes of inadmissibility, only if the conviction involved a substance criminalized by federal drug laws); following Mellouli v. Lynch, 135 S. Ct. 2828 (2015); holding Luu-Le v. INS, 224 F.3d 911 (9th Cir. 2000) and its progeny are no longer good law.

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
United States v. Gonzalez-Corn, ___ F.3d ___, 2015 WL 4385278 (9th Cir. Jul. 17, 2015) (federal conviction for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony drug trafficking offense, without need to apply the categorical analysis, since the INA specifically incorporates felony violations of the CSA on its face).

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (California conviction for violation of Health & Safety Code 11351, possession of a controlled substance for sale, is not categorically a drug trafficking offense for illegal re-entry sentencing purposes, because it is possible to be convicted under this statute for possession of a substances not listed on the federal controlled substances schedule; charging language made clear that offense involved a controlled substance, applying the modified categorical analysis), agreeing with United States v. Sanchez"Garcia, 642 F.3d 658, 661"62 (8th Cir. 2011). NOTE: Although refusing to follow similar cases in the immigration context, the Ninth Circuit found that under the sentencing guidelines, the term "controlled substance" also only refers to substances listed in the Federal schedules.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION OF EPHEDRINE WITH REASON TO BELIEVE IT WOULD BE USED TO MANUFACTURE METHAMPHETAMINE
Daas v. Holder, ___ F.3d ___, ___ (9th Cir. Aug. 24, 2010) (federal conviction of distributing listed chemicals (ephedrine and pseudoephedrine) with reasonable cause to believe they would be used to manufacture methamphetamine, in violation of 21 U.S.C. 841(c)(2), qualified as a aggravated felony drug trafficking crime, regardless of whether ephedrine and pseudoephedrine are controlled substances.); see Lopez-Jacuinde, 600 F.3d at 1217, and Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir.2008).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
Rendon v. Mukasey, ___ F.3d ___, 2008 WL 726354 (9th Cir. Mar. 19, 2008) (Kansas conviction for violation of K.S.A. 65-4163(a), possession with intent to sell marijuana, is an aggravated felony drug conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since the state statute requires proof of trafficking and the record of conviction shows the offense did not involve solicitation).

AGGRAVATED FELONY - DRUG TRAFFICKING - CULTIVATION OF MARIJUANA
United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008) (California conviction of cultivation of marijuana, in violation of Health & Safety Code 11358, is categorically an aggravated felony under INA 101(a)(43)(B) as an analogue to 21 U.S.C. 841(b)(1)(D)).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
United States v. Figueroa-Ocampo, __ F.3d __, 2007 WL 2104787 (9th Cir. July 24, 2007) (under the Supreme Court's recent decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006), simple possession cannot be treated as an aggravated felony for sentencing purposes unless possession of the particular drug would be a felony if prosecuted under federal law).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE CONVICTION CONSTITUTES AGGRAVATED FELONY
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION -IDENTIFICATION OF DRUG
Ruiz-Vidal v. Gonzales, ___ F.3d ___, 2007 WL 113940 (9th Cir. Jan. 18, 2007) (DHS failed to establish unequivocally that the particular substance noncitizen had been convicted in state court of possessing in 2003 was a controlled substance as defined in section 102 of the Controlled Substances Act, for purposes of that conviction serving as a predicate offense for removal).

CONTROLLED SUBSTANCES - SUBSTANCES NOT ON FEDERAL LIST
Ruiz-Vidal v. Gonzales, __ F.3d __ (9th Cir. Jan. 18, 2007) (substances controlled under California, but not Federal law include: apomorphine, androisoxazole, bolandiol, boldenone, oxymestrone, norbolethone, stanozolol, stebnolone).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Martinez-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 21, 2006) (California conviction of possession for sale of marijuana, in violation of Health & Safety Code 11359, constituted a drug trafficking offense for enhancing illegal reentry sentence, since full range of conduct proscribed by state statute fell within federal definition). http://caselaw.lp.findlaw.com/data2/circs/9th/0550719p.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Morales-Perez, ___ F.3d ___ (9th Cir. Nov. 13, 2006) (California conviction of purchasing cocaine base with intent to sell, in violation of Health & Safety Code 11351.5(a), categorically constituted a drug trafficking offense under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry sentencing purposes, since the full range of conduct proscribed by the California statute fell within the definition of the federal offense of attempted possession with intent to distribute under 21 U.S.C. 841(a)(1) and 846, an offense explicitly included in the definition of "drug trafficking offense" contained under U.S.S.G. 2L1.2 cmt. n.5). http://caselaw.lp.findlaw.com/data2/circs/9th/0510115p.pdf

DRUG TRAFFICKING OFFENSES - MAINTAINING A PLACE TO STORE DRUGS FOR SALE
Salviejo-Fernandez v. Gonzales, ___ F.3d ___ (9th Cir. Jul. 31, 2006) (California conviction of maintaining a place to store drugs for sale, in violation of Health & Safety Code § 11366, constitutes a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes).

DRUG TRAFFICKING - POSSESSION FOR SALE OR PURCHASE OF COCAINE BASE FOR SALE
United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006) (California conviction for possession or purchase of cocaine base for purposes of sale, in violation of California Health & Safety Code § 11351.5, is not categorically a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) for purposes of illegal re-entry sentencing, because the California offense includes purchase for sale, which is not drug trafficking under the guidelines).

DRUG TRAFFICKING - SECOND POSSESSION
Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (second California conviction for possession of methamphetamines under California Health & Safety Code § 11377(a), is not an aggravated felony drug trafficking offense for immigration purposes; second possession conviction is not made a "felony" for aggravated felony removal purposes by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997), had been overruled by en banc decision United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)).

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (Nevada conviction for a violation of N.R.S. § 453.337.1, which provides that "it is unlawful for a person to possess for the purpose of sale . . . any controlled substance classified in schedule I or II," constitutes a drug trafficking offense as defined by U.S.S.G. § 2L1.2 for purposes of imposing a 16-level enhancement to the sentence for illegal re-entry, because the statute does not reach conduct outside of the Guidelines definition of a drug-trafficking offense).

DRUG TRAFFICKING - POSSESSION
United States v. Rios-Beltran, 361 F.3d 1204 (9th Cir. Mar. 24, 2004) (Oregon conviction of possession of a Schedule II controlled substance, a Class C felony under Oregon law with a maximum term of imprisonment of five years, Or. Rev. Stat. § 475.992(4)(b), 161.605(3), was found to be a felony for purposes of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and therefore an aggravated felony for sentencing purposes, even though the maximum possible term under the Oregon sentencing guidelines was 90 days).

DRUG TRAFFICKING - SIMPLE POSSESSION
Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004) (Arizona conviction for simple possession, in violation of Ariz.Rev.Stat. Ann. § 13 3407, cannot be an aggravated felony since the offense would not be a felony if prosecuted under federal law), withdrawn on jurisdictional grounds, 366 F.3d 736 (9th Cir. Apr 26, 2004).

DRUG TRAFFICKING - ATTEMPTED SALE OF A CONTROLLED SUBSTANCE
United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. Dec. 17, 2003) (Arizona attempted sale conviction, in violation of A.R.S. § 13-3408, constituted drug trafficking offense for illegal re-entry sentence enhancement purposes, under U.S.S.G. § 2L1.2).

DRUG TRAFFICKING - MONEY LAUNDERING
Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding Arizona conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).

DRUG TRAFFICKING - TRANSPORTATION DOES NOT EQUAL IMPORTATION OF A CONTROLLED SUBSTANCE
United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a nonstop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).

DRUG TRAFFICKING - MANUFACTURE
Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. May 5, 2003) (federal conviction of offense of manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), constituted an illicit-trafficking "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE
United States v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. Mar. 26, 2003) (Oregon conviction of delivery of a controlled substance, in violation of Oregon Revised Statute § 475.992, constitutes an aggravated felony within the meaning of U.S.S.G. § 2L1.2, as a drug trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because it is a felony punishable by more than one years imprisonment under applicable state law).

DRUG TRAFFICKING - POSSESSION OF A CONTROLLED SUBSTANCE
United States v. Soberanes, 318 F.3d 959 (9th Cir. Feb. 10, 2003) (Arizona conviction for possession of eight pounds of marijuana, a Class 5 felony under Ariz.Rev.Stat. § 13- 3405(B)(3), 13-1001(C)(4), qualified as "aggravated felony" under U.S.S.G. § 2L1.2(b)(1)(C), to enhance sentence of defendant convicted of unlawful re-entry).

DRUG TRAFFICKING - SECOND POSSESSION OF MARIJUANA
United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003) (Arizona second conviction of possession of marijuana, in violation of A.R.S. § 13-901.01(A), (E), did not constitute an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation, because the first-offense maximum punishment was not in excess of one year and therefore did not qualify as a felony under the federal definition, because the increased sentence resulting from the prior conviction was not considered to be "for" the "offense," but was rather a recidivist sentence enhancement that could not be considered for that purpose under United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. June 6, 2002) (en banc)).

DRUG TRAFFICKING - POSSESSION
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).

DRUG TRAFFICKING - SALE, TRANSPORTATION, OR SOLICITATION
United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001) (California conviction of sale, transportation, or solicitation of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether the conviction is an aggravated felony for purposes of enhancing a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held not to constitute an aggravated felony or controlled substances offense).

DRUG TRAFFICKING - POSSESSION
United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. Mar. 27, 2000), cert. denied, 531 U.S. 1102 (2001) (Washington felony conviction of possession of a controlled substance, in violation of R.C.W. § 69.50.401(d), carrying a five-year maximum sentence, 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, even though it would not have been a felony conviction if prosecuted under federal law).

DRUG TRAFFICKING - SOLICITATION TO POSSESS FOR SALE
Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale, in violation of Ariz. Rev. Stat. § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation).

DRUG TRAFFICKING - TRANSPORTATION OF DRUGS
United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. June 22, 1999) (California conviction of transportation of marijuana under California Health & Safety Code § 11360 cannot serve as a federal career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).

DRUG TRAFFICKING - SOLICITATION TO POSSESS
United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (Arizona conviction for solicitation to possess a controlled substance, in violation of A.R.S. § 13-1002, 13-3408(A)(1) and (B)(1), is a "felony drug offense" under 21 U.S.C. § 802(44), for purposes of federal drug sentencing enhancement under 21 U.S.C. § 841(b)(1)(B)), distinguishing Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).

DRUG TRAFFICKING - SALE OR FURNISHING
United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. July 6, 1999), cert. denied, 528 U.S. 1095 (2000) (California conviction for selling/furnishing a controlled substance under California Health & Safety Code § 11360(a) was "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for sentencing purposes under U.S.S.G. § 2L1.2(b)(1)(A)).

DRUG TRAFFICKING
Ortiz v. INS, 179 F.3d 1148 (9th Cir. June 8, 1999) (Guatemala conviction for drug trafficking was "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes).

DRUG TRAFFICKING - FURNISHING
United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction under California Health and Safety Code § 11360(a) for selling/furnishing marijuana constitutes an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for illegal re-entry sentencing purposes within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)).

DRUG TRAFFICKING - SALE OR TRANSPORTATION
United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction for sale/offer to sell/transportation of marijuana, in violation of California Health & Safety Code § 11360(a), was an "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)), cert. denied, 531 U.S. 864 (2000), overruled by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001).

DRUG TRAFFICKING - SECOND POSSESSION
United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. Jan. 13, 1998), cert. denied, 525 U.S. 849 (1998) (California second conviction for cocaine possession under Health & Safety Code § 11350(a) was an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because it was both punishable under the federal Controlled Substances Act and a felony).

DRUG TRAFFICKING - SOLICITATION TO POSSESS
Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. § 13-1002, was not conviction for violation of law "relating to a controlled substance," within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994); same argument can be made this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. July 16, 1999) (conviction under Arizonas general purpose solicitation statute qualifies as a "felony drug offense" under 21 U.S.C. § 802(44)).

DRUG TRAFFICKING - SECOND POSSESSION
United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir. Apr. 22, 1997) (Arizona second conviction for simple possession of narcotics is 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 INA § 276(b)(2), 8 U.S.C. § 1326(b)(2)).

DRUG TRAFFICKING - SALE OR TRANSPORTATION
United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. Feb. 28, 1994) (California conviction for sale or transportation of a controlled substance, in violation of California Health & Safety Code § 11352, was an "aggravated felony" for purposes of enhancing sentence for offense of illegal re-entry).

DRUG TRAFFICKING - SALE
Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. Mar. 26, 1993) (California convictions for selling drugs constituted aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

DRUG TRAFFICKING - SALE
Arthurs v. INS, 959 F.2d 142 (9th Cir. Mar. 18, 1992) (California conviction for sale of cocaine was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

Lower Courts of Ninth Circuit

DRUG TRAFFICKING - POSSESSION
Diaz-Zaldierna v. Fasano, 43 F.Supp.2d 1114, 1115 n.2 (S.D.Cal. Mar. 16, 1999) (California conviction of possession of a controlled substance, in violation of Health and Safety Code § 11350, is not an aggravated felony).

Tenth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION CONVICTION CANNOT BE AGGRAVATED FELONY
Gradiz v. Gonzales, 490 F.3d 1206, ___ (10th Cir. Jun. 20, 2007) (Wyoming felony controlled substances conviction cannot constitute an aggravated felony as a "drug trafficking crime," under 18 U.S.C. 924(c)(2) ("any felony punishable under the Controlled Substances Act, 21 U.S.C. 801 et seq."), since Lopez v. Gonzales, 127 S.Ct. 625, 629 (2006), held that state felony convictions of whether crimes that are misdemeanors under federal controlled substances statutes but felonies under state law could not qualify as aggravated felonies under the aggravated felony definition), following United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. 2007); disapproving United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
United States v. Martinez-Macias, 472 F.3d 1216 (10th Cir. Jan. 3, 2007) (Kansas conviction for simple possession of cocaine is not an aggravated felony), following Lopez v. Gonzales, __ U.S. __, 127 S.Ct. 625 (Dec. 5, 2006).

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
Gonzalez-Gonzalez v. Weber, ___ F.3d ___, 2006 WL 3791275 (10th Cir. Dec. 27, 2006) (state conviction of simple possession of cocaine held not to be an aggravated felony, for deportation purposes), following Lopez v. Gonzales, ___ U.S. ___, 2006 WL 3487031 (Dec. 5, 2006).

DELIVERY OF CONTROLLED SUBSTANCE
United States v. Chavez-Diaz, __ F.3d __, 2006 WL 1000811 (10^th Cir. Apr. 18, 2006) (Wyoming conviction for delivery of a non-narcotic controlled substance constituted an aggravated felony controlled substance offense for illegal re-entry sentencing purposes).

DRUG TRAFFICKING - POSSESSION
United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony "drug trafficking crime," as defined by 18 U.S.C. § 924(c), and thus merited an 8-level adjustment under U.S.S.G. § 2L1.2(b)(1); however, the offense of simple possession (no matter what the amount) is not a "drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(B) (which would merit a 12-level adjustment), as there is no trafficking element to the offense).

DRUG TRAFFICKING - POSSESSION
United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. Mar. 25, 2003) (Texas state drug conviction of possession of a controlled substance, for which the defendant was sentenced to a one-year term of imprisonment (suspended), constituted a felony under Texas law, and an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of an eight-level sentence enhancement for illegal re-entry, even though the amendments to U.S.S.G. § 2L1.2, effective Nov. 1, 2001, altered the definition of "aggravated felony" to exclude state simple possession felony convictions for some other Guidelines purposes).

DRUG TRAFFICKING - ATTEMPTED POSSESSION
United States v. Lugo, 170 F.3d 996 (10th Cir. Mar. 11, 1999) (Utah conviction of attempted possession of a controlled substance, in violation of U.C.A.1953, 58-37-8(1)(a)(ii), 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).

DRUG TRAFFICKING - POSSESSION
United States v. Valenzuela-Escalante, 130 F.3d 944 (10th Cir. Dec. 5, 1997) (Utah felony conviction of possession of a controlled substance, in violation of U.C.A. § 58-37-8, constituted an aggravated felony under INA 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for purposes of enhancing sentence for illegal re-entry).

DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Guerrero-Hernandez, 95 F.3d 983 (10th Cir. Sept. 6, 1996) (New Mexico conviction for possession of marijuana or hashish for sale qualified as aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for purposes of enhancing sentence under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).

DRUG TRAFFICKING - POSSESSION
United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. Apr. 16, 1996), cert. denied, 519 U.S. 885 (1996) (New York conviction for felony possession of cocaine was aggravated felony).

Eleventh Circuit

DRUG TRAFFICKING - ATTEMPTED SALE OF A CONTROLLED SUBSTANCE
United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (state conviction of attempted sale of a controlled substance is a drug trafficking offense for sentencing purposes).

DRUG TRAFFICKING
United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. June 10, 2003) (Georgia conviction of possession of 28 grams or more of methamphetamines, in violation of O.C.G.A. § 16-13-31(e), constituted a "drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level increase in sentence for illegal re-entry, since Georgias inference of intent to distribute from possession of an elevated amount of drugs is permissible).

DRUG TRAFFICKING - POSSESSION FOR SALE
Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n.3 (11th Cir. Jan. 25, 2002) (Florida conviction of possession of cocaine with intent to distribute, in violation of Fla. Stat. Ann. § 893.13, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for removal purposes).

DRUG TRAFFICKING - POSSESSION
United States v. Simon, 168 F.3d 1271 (11th Cir. Mar. 4, 1999), cert. denied, 528 U.S. 844, 120 S.Ct. 114 (1999) (Florida conviction for possession of cocaine was a "drug trafficking crime," under 18 U.S.C. § 924(c), and thus defendant was subject to 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (1997) of illegal re-entry sentence for aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), as cocaine conviction was a third-degree felony under Florida law, even though possession of cocaine was only punishable under the Controlled Substances Act as a misdemeanor).

Other

CONTROLLED SUBSTANCES " UNIDENTIFIED DRUG " PAULUS DEFENSE
Richard Collins, Esq., thinks Chorionic Gonadatropin is not a federally controlled anabolic steroid, although prohibited in California and New York. Convictions under California Health & Safety Code 11377 and 11378 are not categorically offenses relating to a controlled substance because California regulates "numerous substances that are not similarly regulated by the CSA. Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078"79 (9th Cir. 2007); see also Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009).

N
ote: The majority holds that a violation of California Heath & Safety Code § 11366 is a categorical match for 21 U.S.C. § 856 (i.e., has the exact same elements and covers the same range of offenses), and is thus categorically an aggravated felony drug offense. The dissent points out that, while a conviction under California Health & Safety Code § 11366.5 is a categorical match, a conviction under the statute at issue is broader than the federal definition because Health & Safety Code § 11366 (unlike the federal offense) does not require that the owner knew that the place would be used for the purpose of drug sales (i.e. the offense can be committed negligently).

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