Second Circuit leaves open question of whether 2nd drug possession offense constitutes "Aggravated Felony" See article by Manuel D. Vargas of NYSDAs Immigrant Defense Project (IDP), here: Immigration Practice TipsJan.-Feb. 2005

United States v. Herrera-Roldan, ___ F.3d ___, 2005 WL 1635366 (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 USSG 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).

United States v. Morales-Perez, ___ F.3d ___ (9th Cir. May 31, 2006) (federal crime of attempted possession of a controlled substance with intent to sell encompasses the California crime of purchasing cocaine base for purposes of sale, so conviction under California Health and Safety Code 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualifies as a predicate drug trafficking offense under the federal sentencing guidelines), withdrawing from prior decision United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006).

Leocal plus Booker: drug possession is not an aggravated felony. With the tenfold increase in illegal reentry prosecutions in the past decade, one of the most common, and frustrating, sentencing problems is the treatment of prior convictions for simple possession of drugs under U.S.S.G. 2L1.2. Under the guidelines, noncitizens receive an enhancement to offense level 16 for having a conviction that is an "aggravated felony" under the Immigration and Nationality Acts definitional section, 8 U.S.C. 1101(a)(43).

A federal conviction of Interstate Travel in Aid of Racketeering, in violation of 18 U.S.C.

Supp. 2d ___, 2005 U.S. Dist. LEXIS 7676 (N.D. Ill. April 11, 2005) (Illinois conviction of possession of less than 15 grams of a substance containing cocaine found not to be an aggravated felony because conviction would have been only a misdemeanor if prosecuted in federal court), following Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), and rejecting rule of Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 396 (BIA 2002).

Gonzales-Gomez v. Achim, ___ F.Supp.2d ___ (N.D. Ill. April 11, 2005) (Illinois conviction of possession of cocaine, considered a felony under 720 ILCS 570/402(a), did not constitute a drug trafficking aggravated felony because it would have been no more than a misdemeanor conviction if prosecuted in federal court), following Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); declining to follow Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).

United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal.

United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Ohio conviction for misdemeanor simple possession of a controlled substance, in violation of Ohio Rev.Code Ann. 2925.11(A), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).

United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (Kentucky conviction for misdemeanor simple possession of a controlled substance, in violation of Ky.Rev.Stat. Ann. 218A.1415(1), is not an aggravated felony for illegal re-entry sentencing purposes, because the offense is not a felony).