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

BIA

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

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

AGGRAVATED FELONY " SOLICITATION " CRIME OF VIOLENCE
Matter of Guerrero, 25 I&N Dec. 631, 635 (BIA 2011) (Rhode Island conviction for criminal solicitation, in violation of R.I. Gen. L. 11-1-9, was a crime of violence where the crime solicited was assault: the State must show that the accused intended that the solicited crime, in this case assault with a dangerous weapon, would be committed. . . . [A]lthough the respondents solicitation offense can be committed without the use of force and before any actual force is used, this does not diminish the substantial risk of violence that solicitation of . . . assault inherently presents.); see Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007) (Rhode Island conviction of assault is an aggravated felony crime of violence because it has as an element the attempted use, or threatened use of physical force against the person or property of another.); quoting 18 U.S.C. 16(a)).

First Circuit

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

Second Circuit

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

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

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

SOLICITATION - 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).

Fifth Circuit

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

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

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

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

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).

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).

SOLICITATION TO TRANSPORT FOR SALE - DRUG TRAFFICKING
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).

Sixth Circuit

SOLICITATION - DRUG TRAFFICKING
United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. June 23, 1994) (federal conviction of solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because "the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.").

Eighth Circuit

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

Ninth Circuit

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

AGGRAVATED FELONY -CRIME OF VIOLENCE- RISK FORCE WILL BE USED IN COMMISSION OF OFFENSE
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force). NOTE: Although acknowledging that the solicitation may be committed without use of force, the court dismissed the argument that there was no risk of the use of in the commission of the solicitation, stating,

The words in the statute "in the course of committing the offense" require a causal link between the crime and the physical force-a substantial risk, in this case, that the solicitation of rape and of assault will lead to violence. Those words do not impose a chronological limitation. It is the risk of violence flowing from a given crime that this statute is concerned with, not necessarily when in a chronological sequence the violence occurs. Prakash has not identified any logical reason why violence that might take place a few minutes, hours, or even days after the solicitation to commit rape or assault has been committed should be disregarded, or why the statute should be interpreted in that fashion. We see no reason to do so. . . . Similarly, for the purpose of determining whether the offense of solicitation is a crime of violence, whether there is a substantial risk that physical force will be used in the course of committing the offense properly extends to the intended result of the solicitation.

Id. at 1037. But see United States v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003); United States v. Fish, 368 F.3d 1200 (9th Cir. 2004) (Oregon conviction for possession of a destructive device not a crime of violence).

SOLICITATION - DRUG TRAFFICKING
United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. May 20, 2003) (Oregon: the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term "includes" is not exhaustive, so conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement).

SALE, TRANSPORTATION, OR SOLICITATION - DRUG TRAFFICKING
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).

SOLICITATION TO POSSESS FOR SALE - DRUG TRAFFICKING
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).

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).

OFFER TO SELL OR TRANSPORTATION - DRUG TRAFFICKING
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).

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)).

Tenth Circuit

SOLICITATION - CRIME OF VIOLENCE
United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006) (Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § 13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation where they "include" "aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1 .2 cmt. application n.5, because "include" is non-exhaustive and the examples expressly listed merely illustrative; since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).

Eleventh Circuit

PERSUADE MINOR TO ENGAGE IN UNLAWFUL SEXUAL ACTIVITY - CRIME OF VIOLENCE
United States v. Searcy, 418 F.3d 1193 (11th Cir. July 28, 2005) (federal conviction of using interstate commerce to persuade a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), constitutes a crime of violence for career offender classification purposes).