(B)  Ninth Circuit Authorities.  This argument is particularly strong in the Ninth Circuit.  In Coronado-Durazo v. INS, the Ninth Circuit held that solicitation to commit a crime is not a basis for deportation under the controlled substances ground, even when the crime solicited involved controlled substances.[106]  The court based its decision on the fact that the controlled substances deportation ground explicitly includes conspiracy or attempt to commit an offense, but does not include the distinct offense of solicitation.  Under that reasoning, a conviction under a general solicitation statute would not be held to be an aggravated felony, since the aggravated felony statute punishes only attempt and conspiracy to commit aggravated felonies, but does not specifically include as an aggravated felony solicitation to commit an aggravated felony offense.[107]

 

            The Ninth Circuit has also held that a conviction under the same Arizona solicitation statute for solicitation to possess marijuana for sale does not constitute an aggravated felony under the drug trafficking provisions, which require the offense to be punishable under the Controlled Substances Act, 21 U.S.C. § § 801 et seq.[108]  While the Act does cover attempt and conspiracy, solicitation is not prohibited.  So, just as in Coronado-Durazo, solicitation of a drug trafficking offense does not itself constitute a drug trafficking aggravated felony.

            In United States v. Rivera-Sanchez,[109] a unanimous en banc panel of the Ninth Circuit held that the California statute prohibiting sale of marijuana[110] was divisible because it contained a number of completely different offenses with completely different elements: sales, transportation, offer to sell, etc.  One of the divisible offenses included within the statute was solicitation, i.e., “offer to sell.”  Citing Coronado-Durazo and Leyva-Licea, the Court held that “offer to sell” was not an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation under 8 U.S.C. § 1326(b)(2).  Because the record of conviction in this case did not reveal on which basis the defendant was convicted, and thus did not negate the possibility the defendant had been convicted of mere offer to sell — a non-aggravated felony, the court could not hold the conviction was an aggravated felony, and remanded to allow the district court to consult the record of conviction to see if the ambiguity could be resolved.  The Court therefore overruled prior case law holding that a conviction under this statute was automatically an aggravated felony.[111]  As the Rivera-Sanchez Court noted, the other California drug sales statutes are functionally identical and will be subject to the same divisibility analysis with regard to solicitation.[112]

 

            The convictions in Coronado-Durazo and Leyva-Licea were for violating an Arizona general solicitation offense (i.e., a statute that penalized solicitation to commit any crime).  The court noted that the solicitation statute defined a “generic” offense that Arizona courts had held to be distinct from the underlying crime because it requires a different mental state and different acts.[113]  Convictions under general solicitation statutes, like that of Arizona, should not be held to be controlled substances offenses or an aggravated felony as drug crimes or under any other aggravated felony definition.

            Other states, however, may not have a general solicitation statute.  For example, California law does not contain a general solicitation offense, so the Coronado-Durazo rule might not help immigrants with California solicitation convictions.  The California solicitation statute, California Penal Code § 653f(d), is limited to solicitation to commit various controlled substances offenses.[114]  Therefore, every single conviction under this statute relates to a controlled substance, so the immigration or federal court may hold that this particular limited solicitation statute is an offense “relating to” drugs, and therefore a ground of deportability and inadmissibility.  It might also be held to be an aggravated felony as drug trafficking.[115]

[106] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (conviction under Ariz.R.S. 13-1002 for solicitation to commit a crime is not an offense “relating to” controlled substances even where offense solicited involves controlled substances, disapproving Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation under Arizona statute is an offense “relating to” controlled substances)).  See also discussion in K. BRADY, California Criminal Law And Immigration § 2.7 and Chapter 4 (2004).

[107] Both the ground of inadmissibility and deportability grounds relating to drugs include attempt and conspiracy, but not solicitation.  See § 3.11, supra; K. BRADY, California Criminal Law And Immigration § 3.1 (2004).  The aggravated felony definition includes attempt and conspiracy, but not solicitation, at INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[108] Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 2000).

[109] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[110] Cal. Health & Safety Code § 11360(a).

[111] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (overruling United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999), cert. denied, 121 S.Ct. 156 (2000) (holding violations of California Health & Safety Code § 11360(a) constituted aggravated felonies pursuant to U.S.S.G. § 2L1.2(b)(1)(A)), United States v. Lomas, 30 F.3d 1191 (9th Cir. 1994) (conviction of violating California Health & Safety Code § 11352(a) for transportation constituted aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)), and United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999)).

[112] See California Health & Safety Code § 11352 (sale, distribution or transportation of narcotics such as heroin and cocaine) and § 11377(a) (sale of restricted dangerous drugs such as methamphetamines), which are functionally identical to Health & Safety Code § 11360(a). 

[113] Coronado-Durazo v. INS, supra, 123 F.3d at 1324.

[114] California Penal Code § 653f(d) penalizes solicitation of the California Health and Safety Code § § 11352 (sale of narcotics), 11379 (transportation and sale of controlled substances), 11379.5 (transportation and sale of PCP), 11379.6 (manufacturing), 11391 (transportation or sale of mushrooms); see also § 11154 (soliciting a practitioner to write a prescription to unlawfully furnish a controlled substance).

[115] The two tests are different.  An offense is a basis for inadmissibility and deportability grounds if it “relates to” controlled substances.  See K. BRADY, California Criminal Law And Immigration § 3.1 (2004).  An offense is a controlled substance aggravated felony if it is directly analogous to named federal drug felony, or if it actually involves trafficking.  Solicitation is not an analogue to one of the designated federal drug statutes: the only federal solicitation statute relates to violent crimes.  See 18 U.S.C. § 373.  Solicitation to commit trafficking might be held to constitute trafficking as it is understood in the general sense.  However, all of the offenses specifically listed in Calif. Penal Code § 653f(d) relate to drug trafficking, except arguably the manufacturing offense penalized at Calif. Health & Safety Code § 11379.6, which can be conducted for personal use.  Therefore, a conviction under this solicitation statute is not necessarily a conviction for drug trafficking, and might not be an aggravated felony under the drug trafficking theory.  Or, this statute might therefore be regarded as a divisible statute, and the record of conviction examined to determine whether the particular solicitation conviction was solicitation to commit a drug trafficking offense, in which case it would be considered an aggravated felony under this theory, or solicitation to manufacture drugs, in which case it would not be an aggravated felony under this theory.

Fifth Circuit

CONTROLLED SUBSTANCES - SOLICITATION CONSTITUTES A CONVICTION RELATING TO A CONTROLLED SUBSTANCE
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Fifth Circuit rejected reasoning of Coronado-Durazo, holding a conviction of solicitation to transport marijuana for sale constituted a conviction of an offense relating to a controlled substance)

Seventh Circuit

SOLICITATION OF AN AGGRAVATED FELONY - SOLICITATION OF SEXUAL ACT IS SUFFICIENT TO SHOW SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (applying definition of "sexual abuse" at 18 U.S.C. 3509(a)(8), the court found that solicitation of a sexual act constitutes "sexual abuse," as that section includes "inducement, enticement, or coercion.") NOTE: This case is distinguishable from the Ninth Circuit cases, such as 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)), since Gattem in essence finds that "solicitation" in inherent in the definition of "sexual abuse of a minor", just as it is inherent in aggravated felony alien smuggling [8 U.S.C. 274(a)(1)(A)(iv) punishes encouraging or inducing a noncitizen to enter the United States in violation of law].

SHOW SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (applying definition of "sexual abuse" at 18 U.S.C. 3509(a)(8), the court found that solicitation of a sexual act constitutes "sexual abuse," as that section includes "inducement, enticement, or coercion.") NOTE: This case is distinguishable from the Ninth Circuit cases, such as 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)), since Gattem in essence finds that "solicitation" in inherent in the definition of "sexual abuse of a minor", just as it is inherent in aggravated felony alien smuggling [8 U.S.C. 274(a)(1)(A)(iv) punishes encouraging or inducing a noncitizen to enter the United States in violation of law].

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).