U.S. v. Palacios-Suarez

Decision Date22 July 2005
Docket NumberNo. 04-4187.,04-4187.
Citation418 F.3d 692
PartiesUNITED STATES of America, Plaintiff-Appellee, v. German PALACIOS-SUAREZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Richard W. Smith-Monahan, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Anne L. Porter, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Richard W. Smith-Monahan, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Anne L. Porter, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before: NELSON and MOORE, Circuit Judges; RESTANI, Judge.*

MOORE, J., delivered the opinion of the court, in which RESTANI, J., joined.

NELSON, J. (p. 701-02), delivered a separate concurring opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this case, Defendant-Appellant German Palacios-Suarez ("Palacios-Suarez") appeals his sentence imposed by the district court after he pled guilty to illegally reentering the United States after having been previously removed. See 8 U.S.C. § 1326(a). Palacios-Suarez challenges his sentence on two grounds. First, he argues that the district court improperly concluded that his prior state-law felony drug convictions should be considered "aggravated felonies" and therefore enhance his sentence pursuant to 8 U.S.C. § 1326(b)(2) and U.S. Sentencing Guideline ("U.S.S.G.") § 2L 1.2(b)(1)(C). Second, Palacios-Suarez argues that his case should be remanded to the district court for resentencing in light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Upon review, we conclude that Palacios-Suarez's prior state felony convictions are not "aggravated felonies," and therefore we VACATE the district court's sentence and REMAND the case for resentencing consistent with this opinion as well as the Supreme Court's opinion in Booker.

I. BACKGROUND

On July 22, 2003, Palacios-Suarez was removed from the United States following two state-law convictions for drug possession. Subsequently, he returned to the United States and was arrested in Clermont County, Ohio. On February 27, 2004, Palacios-Suarez pleaded guilty to illegally reentering the United States after having been previously removed in violation of 8 U.S.C. § 1326(a). A pre-sentence report ("PSR") was filed with the district court which detailed the two prior state-law convictions for drug possession, both of which are considered felonies under applicable state laws. Palacios-Suarez's first felony conviction was in April 2003, for possession of cocaine in the State of Ohio in violation of Ohio Rev.Code Ann. § 2925.11(A). Two months later, in July 2003, he was convicted of possession of a controlled substance in the first degree in the Commonwealth of Kentucky. See Ky.Rev.Stat. Ann. § 218A.1415(1).

The PSR concluded that the two convictions qualified as "aggravated felonies" pursuant to 8 U.S.C. § 1326(b) and U.S.S.G. § 2L1.2(b)(1)(C) thereby resulting in a ten-year increase in the statutory-maximum penalty and an eight-level enhancement under the Sentencing Guidelines. 8 U.S.C. § 1326(b); U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C)(2003). While conceding the validity of the prior state-law convictions, Palacios-Suarez challenged the PSR's conclusion that they are "aggravated felonies" as defined by the federal statute and the Sentencing Guidelines. The district court rejected Palacios-Suarez's argument, however, and sentenced him to twenty-four months of incarceration, three years of supervised release, a $500.00 fine, and a special assessment of $100.00. Palacios-Suarez appeals from that sentence.

II. ANALYSIS
A. Interpretation of the Aggravated-Felony Enhancement

We review the district court's interpretation of a federal statute and the Sentencing Guidelines de novo. United States v. Quintero, 157 F.3d 1038, 1039 (6th Cir.1998); United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005) (stating standard of review after Booker). Whether a state-felony drug conviction, which would not be a felony under federal law, could nevertheless constitute an "aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(B) is an issue of first impression in this court. See Garcia-Echaverria v. United States, 376 F.3d 507, 512 (6th Cir.2004) (deciding the case without reaching the issue). The courts of appeals which have addressed the issue have reached conflicting results. Upon review of the statutory language and the legislative history, we hold that 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").

Deciphering what the term "aggravated felony" means in the INA requires us to "navigate a rather confusing maze of statutory cross-references." United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir.2002). The INA states that an alien who has been previously removed from the United States "subsequent to a conviction for commission of an aggravated felony" may be imprisoned for up to twenty years if found to have illegally reentered the country. 8 U.S.C. § 1326(b)(2). Accordingly, the Sentencing Guidelines increase the offense level for the crime by eight levels where the defendant has been convicted of "an aggravated felony." U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C)(2003). The commentary to the section explains that the term "aggravated felony" has the same "meaning given that term in section 101(a)(43) of the [INA] (8 U.S.C. § 1101(a)(43))." U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 3(A) (2003). Section 101(a)(43) in relevant part defines an "aggravated felony" as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B) (emphasis added). Section 924(c) of Title 18, in turn, defines the term "drug trafficking crime" as "any felony punishable under the Controlled Substances Act [("CSA")] (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.)." 18 U.S.C. § 924(c)(2) (emphasis added). Courts have adopted two competing interpretations of the phrase "any felony punishable under" the enumerated statutes in § 924(c)(2), and it is the interpretation of this phrase which is the subject of Palacios-Suarez's appeal.

Initially, the Board of Immigration Appeals (the "BIA") interpreted § 101(a)(43)(B) of the INA to mean that "a state drug conviction could qualify as `an aggravated felony' in one of two ways: (1) if the state felony conviction had a `trafficking element' (which is not argued here); or (2) if the conviction would be punishable as a felony under one of the enumerated federal drug statutes" and therefore would be a "drug trafficking crime" as defined under § 924(c)(2). Liao v. Rabbett, 398 F.3d 389, 391 (6th Cir.2005) (citing In re Davis, 20 I. & N. Dec. 536, 541-42 (BIA 1992)). The BIA's interpretation of § 924(c)(2) is known as the "hypothetical federal felony" or the "hypothetical felony" approach and "reads the phrase `any felony punishable under the CSA' to mean any conviction punishable as a felony under the CSA." Id. Thus, "a state felony drug possession conviction (not involving any element of drug trafficking) that would only be punishable as a federal misdemeanor would not constitute an `aggravated felony' under § 1101(a)(43)(B)." Id. at 391-92. The BIA adopted the hypothetical federal felony approach in all of its immigration cases except in circuits which decided to the contrary on the issue. In Re L-G-, 21 I. & N. Dec. 89, 102 (BIA 1995).1 The Second, Third, and Ninth Circuits have expressly adopted the BIA's hypothetical federal felony approach in the immigration context. See Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir.1996); Gerbier v. Holmes, 280 F.3d 297, 311 (3d Cir.2002); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir.2004).

By contrast, the second interpretation of § 924(c)(2), referred to as the "guideline approach" because it has been adopted specifically in the context of U.S.S.G. § 2L1.2, takes a disjunctive view of the phrase "any felony punishable under the CSA." Thus, courts adopting the "guideline approach" read the phrase to mean that a state drug conviction is a "drug trafficking crime" and therefore an "aggravated felony" if (1) the conviction is a felony under either state or federal law and (2) the conduct underlying the conviction is punishable under the CSA (or the other two statutes not at issue here). Garcia-Echaverria, 376 F.3d at 512. Courts adopting this approach rely on the fact that within the CSA itself, the term "felony" is defined as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13). "Under this interpretation, a drug offense that is punishable as a felony under state law could be considered an `aggravated felony,' for purposes of applying the enhancement contained in U.S.S.G. § 2L1.2, even if the conduct would have only been punishable as a misdemeanor under federal law." Garcia-Echaverria, 376 F.3d at 512. A clear majority of our sister circuits have adopted this approach to interpret the phrase "aggravated felony" as used in U.S.S.G. § 2L1.2. See United States v. Wilson, 316 F.3d 506, 513 (4th Cir.), cert. denied, 538 U.S. 1025, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Pornes-Garcia, 171 F.3d 142, 148 (2d Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata,...

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