Prior to the United States Supreme Court decision in Lopez v. Gonzales, [356] a complicated matrix of possibilities determined whether a state controlled substances conviction would qualify as an aggravated felony drug trafficking conviction.[357]  In light of Lopez, a state conviction must be for an offense that, if prosecuted under federal law, would be punishable as a felony.  Therefore, in the context of aggravated felony drug trafficking offenses, it no longer matters whether a state chooses to label an offense a felony or a misdemeanor, and it does not matter how the state chooses to distinguish between felonies and misdemeanors.  See § 19.58, supra.

[356] Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws § § 22-42-5, 22-6-1, 22-3-3, did not constitute a “felony punishable under the Controlled Substances Act,” under 18 U.S.C. § 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law).

[357] See N. Tooby & J. Rollin, Aggravated Felonies § 3.57 (2006).

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").

FOREIGN CONVICTIONS - SPECIFICALLY LISTED IN FEDERAL LEGISLATION
Burgess v. United States, ___ U.S. ___, ___,(Apr. 16, 2008) ("Notably, [21 U.S.C.] 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors.").