For nearly all aggravated felony categories, there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as solicitation.  See § 7.12, supra.  Similar arguments are available with respect to most other grounds of deportation.  See, e.g., § § 7.107 (crimes of moral turpitude), 7.141 (controlled substances), 7.151 (domestic violence offenses), and 7.176 (firearms offenses), infra.  See generally Appendix H, Non-Substantive Offenses, infra.

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).).

Fifth Circuit

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).

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

PRACTICE ADVISORY " CONTROLLED SUBSTANCES " SAFE HAVEN PLEA AGGRAVATED FELONY " DRUG TRAFFICKING " SAFE HAVEN PLEA
In cases charging sales and possession for sale of a controlled substance, defense counsel should consider pleading to a single count of Health & Safety Code 11352(a), under People v. Palmer, 58 Cal.4th 110 (2013), without identifying any particular factual basis. The specific offense for the plea should be that the defendant "offered to sell" an unidentified controlled substance in violation of 11352(a), striking any reference to a specific substance in the charge, making sure that the charge contains all the statutory alternatives. A sentence of less than 180 days is desirable. This plea should prevent an aggravated felony finding under 8 U.S.C. 1101(a)(43)(B) (drug trafficking offense). See United States v. Garza"Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (the federal term drug trafficking offense does not include transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance) (emphasis supplied); accord U.S. v. Ramirez-Macias, 2013 WL 4723453, at *2 (E.D.Wash. 2013). Note that in 2002, Health & Safety Code 11352 criminalized transport for personal use (which it no longer does). See also Young v. Holder, 697 F.3d 976, 983 (9th Circ.2012) ("Section 11352(a), however, criminalizes the mere solicitation of, or offer to sell, a controlled substance, which is not an aggravated felony, Leyva"Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999), as well as the sale of cocaine, which is one"), overruled on other grounds Almanza-Arenas v. Holder, 771 F.3d 1184, 1194 (9th Circ.2014), decision vacated pending en banc review, Almanza-Arenas v. Lynch, 785 F.3d 366, 367 (9th Cir. 2015). This conviction should not be an inadmissible controlled substance conviction, or crime of moral turpitude, since the minimum conduct analysis of Moncrieffe applies in the context of inadmissibility. The underlying conduct may establish a reason to believe ground of inadmissibility under INA 212(a)(2)(C)(i).

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 - SOLICITATION
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: The court rejected the argument that solicitation of rape cannot be an aggravated felony because INA 101(a)(43)(U) lists attempt and conspiracy, but not solicitation:

There is no reason to conclude that the existence of subsection (U) forces courts to analyze inchoate offenses only under that provision. Each subsection of 1101(a)(43) provides an independent basis for determining what qualifies as an aggravated felony. See, e.g., Leyva-Licea, 187 F.3d at 1150 (examining whether solicitation to possess marijuana for sale is an aggravated felony under 1101(a)(43)(B)); Ramsey v. INS, 55 F.3d 580, 583 n. 5 (11th Cir. 1995) (holding that although 1101(a)(43)(U) was not added to the statute until after petitioner's conviction, his conviction for attempted lewd assault still was an aggravated felony because it was a "crime of violence" under 1101(a)(43)(F)). As in Ramsey, Prakash's crimes each qualify as a "crime of violence" under subsection 43(F). That they are not covered within subsection 43(U) does not matter, just as it does not matter that they are not covered within subsection 43(A) (murder, rape, or sexual abuse of a minor), subsection 43(B) (illicit trafficking in a controlled substance), or any other subsection of that statute. One is enough.

Id. at 1038-1039.

AGGRAVATED FELONY - SOLICITATION - DRUG TRAFFICKING
United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. 2003) (the omission of solicitation from the offenses listed in the application note as included in USSG 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term "includes" is not exhaustive, conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (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," the list of offenses in the application note is merely illustrative, it 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); but see United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. 1994) (solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in USSG 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.").

Tenth Circuit

AGGRAVATED FELONY - SOLICITATION - CRIME OF VIOLENCE
United States v. Cornelio-Pena, ___ F.3d ___, 2006 WL 218189 (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 USSG 2L1.2(b)(1)(A)(ii), justifying a 16-level sentence enhancement for illegal reentry, even though the Guidelines do not expressly list solicitation where they "include" "aiding and abetting, conspiring, and attempting, to commit such offenses." USSG 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). The Tenth Circuit decision in Cornelio-Pena does not contradict Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999), in which the Ninth Circuit concluded that Arizona's solicitation statute is not a law relating to a controlled substance or an aggravated felony under INA 241(a)(2), when the underlying offense solicited is a narcotics violation. "These cases are inapposite, however, because the statutory definition at issue did not contain expansive language similar to the term "include" used in the Guidelines. Leyva-Licea, 187 F.3d at 1150 ("the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitations"). United States v. Cornelio-Pena, ___ F.3d ___, ___ n.3, 2006 WL 218189 (10th Cir. Jan. 30, 2006).

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."