(A)  Aggravated Felonies.

 

            The statute explicitly states that attempt and conspiracy to commit an aggravated felony constitutes an aggravated felony.[223]  Solicitation is not included in this list, and therefore is arguably not an aggravated felony.  See § 7.12, supra.[224]

 

Ninth  Circuit:

United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. April 18, 2001) (California conviction of sale, transportation, or offer (solicitation) of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether it a 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).

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).

 

Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sep. 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 Ed.); same argument can be made that this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. 1999) (conviction under Arizona’s general purpose solicitation statute qualifies as a “felony drug offense” under 21 U.S.C. § 802(44)).

 

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

[224] See N. Tooby, Aggravated Felonies § 5.49 (2003).

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).

Eleventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Aguilar-Ortiz, __ F.3d __ (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. 777.04(2) is not a "drug trafficking offense" for illegal re-entry sentencing purposes because the guidelines include aiding and abetting attempt, and conspiracy, but not solicitation offenses).