Definition of "Aggravated Felonies" for Guidelines Enhancement in Illegal Re-entry Cases Clarified

United States v. Palacios-Suarez, No. 04-4187 (6th Cir. 7/22/05) (Moore, & Restani (U.S.Ct.Int.Tr.), JJ.; Nelson, J., concurring)

Defendant was convicted in Ohio and Kentucky of possession of controlled substances, both of which were, in the state courts, felonies. His Guidelines were increased under §2L1.2(b)(1)(C) based on a finding that these convictions amounted to "aggravated felonies". Defendant argued that, since these offenses would've been misdemeanors if prosecuted under federal law, they couldn't be considered "felonies" for purposes of this enhancement.

Held: a state felony conviction which does not contain a trafficking component must be punishable as a felony under federal law in order for it to constitute an "aggravated felony" under the Immigration and Nationality Act (INA), and, thence, for purposes of the enhancement under §2L1.2(b)(1)(C). Since both prior convictions would have been treated as misdemeanors under 21 U.S.C. § 844(a), they could not be counted as "aggravated felonies" for purposes of the enhancement. In so ruling, Judge Moore, noting the Circuit split on this issue, adopted the "hypothetical felony" approach of the 2nd, 3rd and 9th Circuits. In so doing, the panel rejected the "guideline approach" of the 1st, 4th, 5th, 8th, 10th, and 11th Circuits. The opinion, while dense with competing statutory and Guidelines definitions, is well-reasoned and well-presented. Congratulations to AFPD Richard Smith-Monahan of Cincinnati who briefed and argued the case.