Criminal Defense of Immigrants

 

(B)  In the alternative, the conviction is an aggravated felony if it is for a “drug trafficking crime (as defined in section 924(c) of title 18, United States Code).”  Section 924(c) of Title 18 in turn lists convictions under: (1) the Controlled Substances Act (21 U.S.C. § § 801, et seq.), (2) the Controlled Substances Import and Export Act (21 U.S.C. § § 951, et seq.), and (3) the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901, et seq.).

 

To qualify under the second prong, a conviction must:

 

(a)       be a felony;[548]

(b)       include all elements of a federal drug offense listed in the Controlled Substances Act (21 U.S.C. § § 801, et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § § 951, et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901, et seq.);[549] and

(c)        involve a controlled substance on the federal list (21 U.S.C. § 802). [550]

 

If the conviction is for violation of state law, the state offense must be analogous to a federal drug offense named in the statute, under the test provided in Matter of Barrett.[551]  See § 19.62, infra.

 

                Simple possession and other drug offenses without a commercial element have been found to fall under this prong because they are punishable under the listed federal statutes.[552] 

 

Counsel may wish to argue (especially in the context of the first test), that based upon two recent United States Supreme Court decisions, certain offenses should not be considered “drug trafficking” crimes.  In Leocal v. Ashcroft, the court stated that when interpreting a statute, the courts must give the words of the statute their “ordinary and natural meaning.” [553]  As the term “drug trafficking” implies a commercial element,[554] the “ordinary and natural” meaning of that term, as used in the aggravated felony definition, would exclude offenses like simple possession in which there is no commercial element.  In Lopez v. Gonzales,[555] the court explicitly rejected the idea that simple possession should be considered a “drug trafficking” offense.  The court noted that Congress had “counterintuitively” defined some possession offenses as drug trafficking offenses, “[b]ut this coerced inclusion of a few possession offenses in the definition of ‘illicit trafficking’ does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.”[556]

                Some offenses that qualify as aggravated felony drug offenses under the second prong will not be independently considered “drug trafficking” offenses in the illegal re-entry sentencing context, and vice versa.[557]  See § 19.22, supra.

[548] See § 19.57, infra.

[549] For a checklist of federal controlled substances offenses, see Appendix E, infra.

[550] See § 19.60, infra.

[551] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990).  A state-by-state quick reference to drug laws nationwide can be found at http://www.norml.org/index.cfm?wtm_view=&Group_ID=4516

[552] Ibid.

[553] Leocal v. Ashcroft, ­­543 U.S. 1, 9 (Nov. 9, 2004), citing Smith v. United States, 508 U.S. 223, 228 (1993).

[554] Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992) (the concept of trafficking includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”).

[555] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 629-630 (Dec. 5, 2006) (state felony simple possession is not an aggravated felony drug offense because it is not a felony under federal law).

[556] Id. at 630 n.6.

[557] See, e.g., United States v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. Jan. 12, 2006) (federal conviction for conspiracy to possess a listed chemical (ephedrine) with intent to manufacture methamphetamine, under 21 U.S.C. § 841(d)(1), held not to qualify as a “drug-trafficking offense” under U.S.S.G. § 2L1.2, for purposes of imposing a sentence enhancement to an illegal re-entry sentence, because the U.S. Sentencing Commission specifically included this offense under U.S.S.G. § 4B1.2 cmt. n.1, but declined to do so under § 2L1.2); United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony “drug trafficking crime,” as defined by 18 U.S.C. § 924(c), and thus merited an 8-level adjustment under U.S.S.G. § 2L1.2(b)(1); however, the offense of simple possession (no matter what the amount) is not a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (which would merit a 12-level adjustment), as there is no trafficking element to the offense).