(A)  Elements of the Aggravated Felony Category.  The aggravated felony statute includes “illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title) . . . .” [564]  This ground therefore has the following elements:

            (1)  a conviction of an offense that is

            (2)  illicit trafficking

            (3)  in firearms or destructive devices (as defined in section 921 of title 18, United States Code), or

            (4)  in explosive materials (as defined in section 841(c) of that title).

 

            Unlike the drug trafficking definition, the firearms trafficking definition is limited to the common-sense definition of “trafficking,” and resort is had to federal statutes only to define the “firearms,” “destructive devices,” or “explosives” that must be the subject of the illicit trafficking.  For purposes of determining whether an offense involves illicit trafficking in firearms,[565] “firearms” and “destructive devices” are defined in 18 U.S.C. § 921(a)(3). 

 

            Illicit trafficking in explosive materials (as defined in 18 U.S.C. § 841(c)) also constitutes an aggravated felony.[566]  “‘Explosive materials’ means explosives, blasting agents, and detonators.”[567]  “Explosives” “means any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion . . . .”[568]  “The Secretary shall publish and revise at least annually in the Federal Register a list of these and any additional explosives which he determines to be within the coverage of this chapter.”[569]

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

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

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

[567] 18 U.S.C. § 841(c).

[568] 18 U.S.C. § 841(d).

[569] Ibid.

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").

AGGRAVATED FELONY - DRUG TRAFFICKING - TRANSPORTATION OF AT LEAST 100 POUNDS OF MARIJUANA
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", under General Statutes of North Carolina 90-95(h), constituted a "drug trafficking offense" under USSG 2L1.2(b)(1)(A)(i) for purposes of imposing a 16-level sentence enhanccment for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - INFERRING INTENT TO SELL OR MANUFACTURE FROM AMOUNT INVOLVED IN POSSESSION/TRANSPORTATION CONVICTION
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (noting a circuit split, the court found that a possessory or transportation offense could not be considered a drug trafficking offense for illegal re-entry sentencing purposes merely because of the large amount of drugs involved; court review must be limited to elements of statute of conviction), disagreeing with United States v. Madera-Madera, 333 F.3d 1228, 1231-34 (11th Cir.2003), agreeing with United States v. Villa-Lara, 451 F.3d 963, 965 (9th Cir.2006); United States v. Montanez, 442 F.3d 485, 493-94 (6th Cir.2006); United States v. Herrera-Roldan, 414 F.3d 1238, 1240-43 (10th Cir.2005).