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 - 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.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION - FIFTH CIRCUIT RULE
Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382, 391, 394 (BIA Dec. 13, 2007) (en banc) (Texas conviction for possession of less than 28 grams of alprazolam, in violation of Texas Health & Safety Code 481.117(b), qualifies as an "aggravated felony" conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), in cases arising in the Fifth Circuit, because it was committed after the respondent's prior State "conviction" for a "drug, narcotic, or chemical offense" became "final" within the meaning of 21 U.S.C. 844(a), when all avenues of direct appellate review had been exhausted and respondent's status as a recidivist drug offender was either admitted by respondent or determined by a judge or jury in connection with a prosecution for that simple possession offense), following United States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (alternate holding that illegal reentry defendant's 2001 Colorado conviction for codeine possession qualified as a valid factual predicate for an "aggravated felony" illegal reentry sentence enhancement because the underlying offense was a "felony" under both State and Federal law, since it could have been punished under 21 U.S.C. 844(a) as a felony with a penalty of up to two years imprisonment), citing United States v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002), superseded on other grounds by Lopez v. Gonzales, 127 S. Ct. 625, 633 (2006); see also United States v. Castro-Coello, 474 F. Supp. 2d 853, 859-62 (S.D. Tex. 2007), affd sub nom. United States v. Molina-Gonzales, 234 Fed. Appx. 319 (5th Cir., July 17, 2007) (No. 07-40279) (per curiam); see also United States v. Lopez-Molina, 494 F. Supp. 2d 517, 521-22 (W.D. Tex. 2007); United States v. Rodriguez-De Leon, 492 F. Supp. 2d 677, 680-82 (W.D. Tex. 2007).

SECOND POSSESSION - DRUG TRAFFICKING
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).

SECOND POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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)).

First Circuit

SECOND POSSESSION OF CONTROLLED SUBSTANCES - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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)).

SECOND POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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)).

SECOND POSSESSION - DRUG TRAFFICKING
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).

THIRD POSSESSION - DRUG TRAFFICKING
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)).

Second Circuit

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.").

SECOND POSSESSION - 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.

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

Third Circuit

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).

POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE - DRUG TRAFFICKING
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").

POSSESSION FOR DISTRIBUTION NOT SALE - DRUG TRAFFICKING
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).

SECOND POSSESSION - DRUG TRAFFICKING
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

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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 - 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 - 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 - 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 - 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 - 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

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

POSSESSION WITH INTENT TO MANUFACTURE - DRUG TRAFFICKING
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).

POSSESSION - 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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

Lower Courts of Fifth Circuit

POSSESSION FOR PERSONAL USE - DRUG TRAFFICKING
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 - 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.").

SIMPLE POSSESSION – DRUG TRAFFICKING
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).

SIMPLE POSSESSION – DRUG TRAFFICKING
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).

SECOND POSSESSION – DRUG TRAFFICKING
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).

POSSESSION OF HEROIN - DRUG TRAFFICKING
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)).

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 - SECOND POSSESSION CONVICTION
United States v. Pacheco-Diaz, ___ F.3d ___, 2008 WL 220692 (7th Cir. Jan. 29, 2008) (opinion on denial of rehearing) (Illinois second conviction of simple possession of marijuana constitutes a drug trafficking aggravated felony, within the meaning of 8 U.S.C. 1101(a)(43), for purposes of imposing a sentence enhancement for illegal reentry under USSG 2L1.2(b)(1)(C), because 21 U.S.C. 844(a) treats possessing marijuana that way if the defendant already has one marijuana-possession conviction on his record), disagreeing with Matter of Carachuri-Rosendo, 24 I. & N. Dec. 382 (BIA 2007) (state marijuana-possession offense is an aggravated felony under 1101(a)(43) only if the noncitizen was charged as a recidivist in state court).

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).

POSSESSION - DRUG
TRAFFICKINGGonzalez-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).

DISTRIBUTION OF MARIJUANA - DRUG TRAFFICKING
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).

Eighth Circuit

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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

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
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 -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).

SECOND POSSESSION - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
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).

SECOND POSSESSION OF MARIJUANA - DRUG TRAFFICKING
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)).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

SOLICITATION TO POSSESS - DRUG TRAFFICKING
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).

TRANSPORTATION OF DRUGS - DRUG TRAFFICKING
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).

SECOND POSSESSION - DRUG TRAFFICKING
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).

SOLICITATION TO POSSESS - DRUG TRAFFICKING
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)).

SECOND POSSESSION - DRUG TRAFFICKING
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)).

Lower Courts of Ninth Circuit

POSSESSION - DRUG TRAFFICKING
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 - 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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

ATTEMPTED POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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).

POSSESSION - DRUG TRAFFICKING
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

POSSESSION - 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).

POSSESSION - DRUG TRAFFICKING
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).