BIA

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF SIMULATED CONTROLLED SUBSTANCE
Matter of Sanchez-Cornejo, 25 I. & N. Dec. 273 (BIA 2010) (Texas conviction of delivery of a simulated controlled substance, as defined by 482.001(4) of the Texas Health and Safety Code, is not an aggravated felony drug trafficking offense because federal law does not punish distribution of a non-controlled substance in place of a real controlled substance; the violation is, however, a controlled substances offense for purposes of triggering removability under INA 237(a)(2)(B)).

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).

Second Circuit

FACILITATION - DRUG TRAFFICKING
United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. Sept. 5, 1991) (federal: although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term "include" implies that the list of offenses in the application note is merely illustrative; court observed that the application note "may not be an exhaustive list" and proceeded to decide "whether . . . criminal facilitation should be included in that list" and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense).

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).

Fifth Circuit

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 - 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).

Ninth Circuit

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 - 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)).

Tenth Circuit

AGGRAVATED FELONY - CRIME OF VIOLENCE
United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. Mar. 10, 2008) (Colorado conviction for assault two (drugging a victim), in violation of Colo.Rev.Stat. Ann. 18-3-203(1)(e) (2001), is not a crime of violence for illegal re-entry sentencing purposes, since drugging by surreptitious means does not involve the use of physical force).