(A)  Elements of the Aggravated Felony Category.  The statute includes as an aggravated felony “an offense described in § § 875, 876, 877, or 1202 of title 18, United States Code (relating to the demand for or receipt of ransom).”[552] 

 

            The Ninth Circuit in United States v. Anderson used the Taylor analysis to develop a generic definition of “extortion” under 18 U.S.C. § 924(e).[553]  To do this, Judge Kozinski reviewed the definition of extortion under the laws of several states, but found that states were split on important elements of the offense.  He finally determined to use the definition of extortion set out in a federal criminal statute.  His commentary could apply equally to the problem of defining other aggravated felonies.

In a case like this, we must articulate a definition of extortion as a matter of federal common law.  There are several ways we can do this.  We might simply let the definition of extortion develop on a case by case basis.  This would be consistent with the common law tradition, but inconsistent with the rule that penal statutes should give the citizenry fair notice, both of the crime and the punishment.  [Citation omitted.] We might try to glean a definition from state law, but as mentioned, this is virtually impossible in this case because the state laws differ so much.  We might make up a definition from scratch, but being fundamentally law interpreters, not law makers, we generally prefer not to do this.

 

Fortunately we have one other avenue open to us: Congress has already defined “extortion” in another federal criminal statute [the Hobbs Act, 18 U.S.C. § 1951] . . . .  We realize the Hobbs Act is not in pari materia with the Armed Career Criminal Act; it was aimed at a different problem and passed at a different time.  It is, however, the law under which most federal extortion prosecutions take place, and its definition of extortion is the one quoted in Black’s Law Dictionary . . . .[554]

The Ninth Circuit found that the elements of the extortion offense for which the appellant had been convicted did not match the generic definition, and therefore held that the prior conviction should not have been used as a sentence enhancement.

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

[553] United States v. Anderson, 989 F.2d 310 (9th Cir. 1993) (defining extortion under the Armed Career Criminal Act sentence enhancement provision, 18 U.S.C. § 924(e)).

[554] United States v. Anderson, supra, 989 F.2d at 312-313.  As the court pointed out, the Anderson case presented the opposite challenge of the Taylor case.  In Taylor there was no federal definition available but accord among the states, and in Anderson there was no accord among the states, but there was a federal statutory definition.  Id. at n.3.  The court cited Securities Industry Ass’n v. Board of Governors, 468 U.S. 137, 150-151, 104 S.Ct. 2979 (1989), as authority for looking to other federal statutes for a definition of the term at issue.  Id. at 313.  See also Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999), where on its second look at the issue, the BIA used the federal statutory offense “Obstruction of Justice” to define the aggravated felony term “obstruction of justice.”  See discussion of Espinoza and Matter of Batista-Hernandez in § 7.8 “Accessory After the Fact,” supra.  In other cases, neither the federal statute nor the law of the majority of states may provide a clear definition.  In such cases, the most representative and best definition may come from common law or the Model Penal Code.

AGGRAVATED FELONY - DRUG TRAFFICKING - USING TELEPHONE TO MAKE MISDEMEANOR DRUG PURCHASE DOES NOT FACILITATE FELONY DRUG DISTRIBUTION
Abuelhawa v. United States, 129 S.Ct. 2102 (May 26, 2009) (reversing conviction of knowingly or intentionally using a communication facility in committing or facilitating a drug distribution offense, in violation of 18 U.S.C. 843(b), on grounds that using a telephone to make a misdemeanor drug purchase does not constitute "facilitation" of felony drug distribution).