(A)  Felony Requirement.  Two groups of controlled substances offenses fall within the illicit drug trafficking aggravated felony definition:[171]

 

(a)       felony convictions, including sales, possession for sale, conspiracy to sell, and other offenses common sense indicates fall within the meaning of “illicit trafficking in a controlled substance.” 

 

            Any conviction for an offense that fits the common meaning of “illicit trafficking” in a federally controlled substance and that is punishable by a sentence of more than one year is an aggravated felony.[172]  This definition requires a conviction to be a “felony” in order to constitute an aggravated felony under this prong of the drug trafficking aggravated felony definition.  The BIA interprets this to mean any felony drug offense under the common understanding of the word “trafficking,” which includes a commercial element.

 

(b)       felony convictions for controlled substances offenses exactly analogous to a federal drug offense.[173]  This includes simple possession convictions under certain circumstances in certain circuits.

 

Both prongs of this drug trafficking aggravated felony require that the conviction be a felony before it can constitute an aggravated felony.

 

[171] Gerbier v. Holmes, 280 F.3d 297 (3d Cir.2002) (state narcotics violation is aggravated felony when: (1) crime categorized as felony under state law and involves drug “trafficking”; or (2) state drug violation, regardless of categorization, would be punishable as felony under an analogous federal statute).

[172]   INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992).  Although Matter of Yanez, 23 I. & N. Dec. 390 (BIA 2002), expressly modified Davis, it appears that the BIA’s concern was with the “drug trafficking crime” prong of the definition, and not the “common meaning of illicit trafficking” prong.  Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[173] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION SENTENCE - MISDEMEANOR LABEL OVERCOMES MAXIMUM POSSIBLE SENTENCE
United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the offense was punishable by up to four years imprisonment).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE CONSTITUTED AN AGGRAVATED FELONY TRIGGERING REMOVAL, EVEN THOUGH IT DID NOT DO SO UNDER BIA PRECEDENT IN FORCE AT THE TIME THE PLEA OF GUILTY WAS ENTERED
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even though it did not constitute grounds for removal under the hypothetical federal felony test dictated by the BIA at the time the plea of guilty was entered, because it would only have constituted a misdemeanor if prosecuted in federal court).
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf

Lower Courts of Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION -- HYPOTHETICAL FEDERAL FELONY RULE
Masok v. Achim, ___ F.3d ___, 2005 WL 1017891 (N.D. Ill. 2005) (Illinois conviction of possession of less than 15 grams of cocaine, in violation of 720 ILCS 570/402(c), which constituted a Class 4 felony under Illinois law, held not convicted of an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because the conviction would not have constituted a felony, but only a misdemeanor, if prosecuted under federal law).

Other

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
There is an argument that regardless of any latent ambiguity in the phrase "any felony" in 924(c)(2), under Jerome v. U.S., 318 U.S. 101 (1943), 1101(a)(43)(B) covers only convictions, whether obtained under federal or state law, which would be felonies under 18 U.S.C. 924(c)(2). In Jerome v. U.S., the issue was the meaning of the phrase "any felony" in a federal criminal statute. As the Court held therein, 318 U.S. at 101-2 (internal citations omitted): Sec. 2 (a) of the Bank Robbery Act ... provides in part that "whoever shall enter or attempt to enter any bank, n1 or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $ 5,000 or imprisoned not more than twenty years, or both." Petitioner was indicted under that section for entering a national bank in Vermont with intent to utter a forged promissory note and thereby to defraud the bank. He was convicted after trial before a jury and was sentenced to imprisonment for one year and a day. The utterance of a forged promissory note is a felony under the laws of Vermont ... but not under any federal statute. The Circuit Court of Appeals affirmed the conviction by a divided vote, holding that "felony" as used in 2(a) includes offenses which are felonies under state law. 130 F.2d 514. We granted the petition for a writ of certiorari because of the importance of the problem in the administration of justice and because of the diversity of views which have developed as respects the meaning of "felony" in 2(a). In concluding that the phrase "any felony" presumptively excluded crimes which were felonies under state, but not federal, law, the Court reasoned, id. at 104 (emphasis added): At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. Examples under federal revenue acts are common. Douglas v. Willcuts, 296 U.S. 1; Helvering v. Stuart, 317 U.S. 154, and cases cited. But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402) and at times on the fact that the federal program would be impaired if state law were to control. See also, Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989) (some internal citations omitted) (emphasis added): [T]he general assumption [is] that "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104 (1943)... One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. ... Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended... A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." ... For this reason, "we look to the purpose of the statute to ascertain what is intended." The term "aggravated felony" includes state crimes as a result of the overarching language of 8 U.S.C. 1101(a)(43), not from 18 U.S.C. 924(c)(2). The meaning of 924(c)(2) is thus unaffected by the fact that 1101(a)(43) covers both federal and state crimes. Thanks to Lisa S. Brodyaga