Fernandez v. Mukasey

question All that the how to sugges- the remains is argument that Union’s Board’s majority rightly apply these rules. The complicated,” ante at 847 and tion was “too to must defer the I not. No matter —as the notes the court but do the One recognized, precise lan- Board’s factual determinations. Board itself concept question it is the is the point: is not the those determinations guage whether, replace- totality to of the circum- that must be communicated the the majority stances, suggests replacement ment worker. The Plastic the Jones interpretation temporary. Jones possible permanent [the workers were “[o]ne per- opinion is that statement of Board does not majority’s form] Plastic in this form an ex- employer’s manence contained is out on the spell the limitations ception language and there- employ- to the at-will to at-will respect discretion with majority’s opinion an enforceable contract well fore creates ees as as the does. But, discharge bearing will not the re- Jones Plastic on facts and mind these review, placement employee returning favor of a it applicable standard Ante, agree n. 8. I Company striker.” possible find that satisfied possible interpreta- them that this is “one its burdеn of I therefore concur in proof. Moreover, reading majority’s tion.” judgment. whole, I

opinion conclude that it is the

necessary interpretation. That is the major-

approach that is consistent with the

ity’s that “[u]nder observation totali- [the] approach,

ty-of-the circumstances Jones fired could not have some of the

Plastic

replacements in favor of some of the strik- denying ers while reinstatement FERNANDEZ, C. Florencio Omar ground strikers on remainder of the Jimenez-Mateo, Victor and Julio were replacements permanent.” Petitioners, Calderon, Ante, at 856. end, therefore, majority has In the

placed important gloss on the decision MUKASEY, Attorney Michael B. That majority. gloss of the Board is ex- States, General of the United actly requested, what the Union as a mat- Respondent. replacement ter of law. Before worker 06-3987, 06-3476, Nos. 06-3994. employee as an can

who was hired at will “permanent,” be characterized as and thus Appeals, United Court of States may employer before an refuse to release Seventh Circuit. worker when economic strikers 30, 2007. Argued Oct. offer make unconditional to return to work, company must it somehow make 15, 2008. Sept. Decided employer’s clear that the normal discretion replacement the at-will employee fire not fire constrained: the at-will just position create a

worker for a re- striker,

turning unless that re- action is

quired by a strike agree- either settlement

ment or an order of the Board.

were ordered removed from country. The orders of removal were based on find- ings petitioners’ most recent state- court convictions for possession of- fenses constituted felonies un- 101(a)(43)(B) §der Immigration and (“INA”), Nationality Act 8 U.S.C. 1101(a)(43)(B), because each of the peti- previously tioners had been convicted of a controlled substance peti- offense. The timely tioners have filed' petitions for re- view in this court. They assert that their first and second state-court convictions for simple drug possession cannot amount to “aggravated felony” under 101(a)(43)(B) of the INA. Because we already found in United States v. Pacheco-Diaz, (7th Cir.2007), 506 F.3d 545 that such convictions do “ag- constitute an 101(a)(43)(B) gravated felony” under INA, deny petitions their for re- view.

I. briefly pro- We summarize the facts and history petitioners’ cedural of each of the cases below.

A. Julio Calderon Calderon is a citizen of Mexico who en- Valenzuela, Immigrant Claudia Midwest illegally. tered the United States He is Center, Rights and Human John D. Win- also a documented member of the Latin Butler, Rubin, (argued), ters & Saltarelli Kings gang, street a national criminal or- IL, Boyd, Chicago, for Petitioners. ganization Chicago. general- based in See A. Levings (argued), Bryan Jennifer S. Olson, ly United States v. Beier, Justice, Department of Divi- Civil (7th Cir.2006) 661-62 (describing the оr- sion, Immigration Litigation, Washington, ganization Kings). of the Latin As one DC, Respondent. might expect of a member of the Latin Kings, Calderon has had several run-ins MANION, ROVNER, Before and opin- with the law. Most relevant to this SYKES, Judges. Circuit ion, however, are Calderon’s convictions MANION, Judge. Circuit marijuana possession: an October marijuana 2002 conviction for Petitioners Florencio Victor Jimenez- Mateo, 550/4(a), Calderon, violation of 720 and an Au- Julio and ILCS Omar Cende- jas-Fernandez (collectively “petitioners”) gust 2006 conviction for two counts marijuana 720 that who has been violation of alien convicted (b). 550/4(a) ILCS state controlled substance offense that felony punishable also Con- Department October (“CSA”) has, trolled Act Substances (“DHS”) Security initiated re- Homeland been of purposes, convicted against proceedings moval Calderon. an then aggravated felony. The IJ noted subject to charged DHS that Calderon was that Fernandez had been convicted of pos- 237(a)(2)(A)(iii) § removal under of in sessing a substance af- controlled 2005 INA, 1227(a)(2)(A)(iii), § hav- 8 U.S.C. previous a possessing ter conviction for a aggravated felony an ing been convicted of 101(a)(43) INA, in § of controlled substance 2001. Because as defined in 8 1101(a)(43). 844(a) CSA, § § § DHS of U.S.C. listed Calder- 21 U.S.C. marijuana possession on’s offenses drug by three possession punishable makes more aggravated felony as the for the basis year imprisonment than one of hence —and charge. On November DHS is- 3559(a)(5) felony, § 18 see U.S.C. —for sued a final administrative order removal who previously those been convicted finding was an aggravated that Calderon offense, of a controlled substance the IJ him ordering felon and removed from the convincing found clear and evidence timely United States to Mexico. Calderon that Fernandez had convicted been of filed a of petition for review DHS’s order aggravated felony was removable on in this court. addition, that basis. In the IJ found Fer- statutorily ineligible nandez for cancella- (“Fer- Cendejas-Fernandez B. Omar tion of removal. See 8 U.S.C. nandez”) 1229b(a)(3). § of Fernandez is a citizen Mexico who appealed Fernandez the IJ’s decision to was admitted to United States as Immigration of Appeals Board in permanent lawful resident 1992. On (“Board”). argued He that the IJ should 28, 2001, September Fernandez con- was not have convictions quali- found his victed of cocaine possession of two counts Board, an aggravated felony. fied as 570/402(c). in violation of 720 ILCS On however, agreed with the IJ a state 7, 2005, Fernandez again November offense for possession controlled sub- convicted of cocaine in violation stance after a drug that occurred 570/402(c). of 720 ILCS “drug qualified trafficking 29, 2006, On March DHS initiated re- (a)(43)(B) INA, § crime” under against moval proceedings Fernandez. 1101(a)(43)(B), because, § U.S.C. under DHS that Fernandez was remova- CSA, § of most recent con- 237(a)(2)(A)(iii) INA, § ble felony. viction would be defined as Con- 1227(a)(2)(A)(iii), U.S.C. for having been sequently, affirmed the the Board IJ’s de- of an convicted as de- timely petition cision. Fernandez filed a 101(a)(43)(B) INA, fined in in this court for review of the Board’s 1101(a)(43)(B). Fernandez was decision. appear an Immigration ordered before (“IJ”). Judge hearing May After a on C. Florencio Victor Jimenez-Mateo 2006, the IJ issued an oral decision order- (“Mateo”) ing that removed Fernandez be to Mexico. decision, Mateo is reaching that the IJ a citizen of the Dominican Re- first cited public who Ashcroft, this court’s decision Ali v. was admitted to the United (7th Cir.2005), F.3d 722 wherein we stated States on visa in immigrant October 101(a)(43)(B) 23, 1989, December Mateo was 1966. On subsection adds “illicit traf possessing a controlled sub- ficking convicted in a controlled substance ... in (as York Penal Law cluding stance violation New trafficking crime de 26, 2002, 924(c) 18) April 220.03. On Mateo was fined in section of Title ... attempted possession convicted of of a con- whether in violation of Federal or State 1101(a)(43). trolled substance violation of 720 ILCS law” to that list. 8 U.S.C. 12, 2006, April 924(c), turn, On Mateo received Section defines the term 5/8-4. conviction, as, his third controlled-substance “drug trafficking crime” among other this time for of a controlled things, “any felony punishable under the (21 in violation substance ILCS Controlled Act Substances U.S.C. 801 570/402(c). 924(c)(2). seq.).” § et 18 U.S.C. As the stated, Supreme Court has a state in April After his conviction DHS offense is considered “analogous” to a “fel to appear charging filed a notice that Ma- ony punishable under the Controlled Sub 237(a)(2)(B)(I) § teo was removable under Act,” and, result, stances aggravat an INA, 1227(a)(2)(B)®, § of the 8 U.S.C. felony INA, ed for purposes “only of the if April because of his 2006 conviction for proscribes it punishable conduct as a felo possession of a controlled substance. At a ny under that federal law.” v. Gon IJ, hearing through before an Mateo coun- zales, U.S. S.Ct. 632 n. sel conceded that he was removable (2006). 633, 166 L.Ed.2d 462 charged, sought but cancellation of remov- decision, case, In an al. oral the IJ found that In petitioners argue this Mateo was removable from the United their state convictions were wrongly classi- as an alien aggravated States convicted controlled fied as felоnies because the violation. they substance The IJ also found state statutes under which were con- statutorily that Mateo was ineligible only proscribe for victed simple possession, cancellation of removal because he had felony which is not a under the CSA. aggravated felony. response, been convicted of an government contends that In particular, petitioners’ the IJ classified Mateo’s most recent convictions for drug possession ‍​‌​‌​​​‌​‌​​​​‌​​‌​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‌​​​‌‌​​​​‍aggra- drug possession analogous offense as an are to what the felony, vated since that possession” offense occurred courts refer to as “recidivist 844(a), after previously § Mateo had been convicted under 21 felony which is a CSA, of two controlled substance offenses. Ma- under the because those convictions appealed teo preceded by prior drug IJ’s were at least one Board, finding but the Board af- pertinent por- conviction. The § firmed the IJ’s decision. Mateo then tion of states: filed timely a petition for review of the Board’s any It shall unlawful person be for affirming order the IJ. knowingly intentionally a possess or Any person controlled substance....

II. who violates this subsection be sen- appeal The sole issue on imprisonment this is whether tenced to a term of of not (or, Mateo, the second year, as is the case with than 1 and a more shall be fined third) $1,000, petitioners’ both, of each of the multiple except minimum of or drug possession state-court convictions for if a prior he commits such offense after accurately aggra- was characterized as an subchapter conviction under this or sub- 101(a)(43)(B) § felony vated chapter chapter, prior under of the II of this or a 101(a)(43) narcotic, INA. pro- any drug, Section of the INA conviction for an quali- chargeable vides extensive list of crimes that chemical offense under State, final, fy aggravated Specifically, felonies. law of has become he in this argument before oral text. Just imprison- a terra of be sentenced shall States days case, but not court decided United than 15 for not less ment I), (Pacheco a be fined 506 F.3d 545 years, shall more than Pacheco-Diaz Cir.2007). $2,500.... I, this court minimum of In Pacheco question of whether addressed 844(a). sentence The second 21 U.S.C. simple for state conviction alien’s second 844(a) quoted above portion in the marijuana ag- constituted a mis- ordinarily be what would transforms felony purposes of determin- gravated simple possession offense dеmeanor current offense enhancement where the a into a 2L1.2(b)(l)(C) conviction for Sen- prior of the United States preceded was However, offense. substance controlled Section tencing Guidelines.2 con- to obtain government 2L1.2(b)(l)(C) for the guidelines of the instructs to, pursuant has viction under to enhance a defendant’s sentencing court prior file notice to 21 U.S.C. levels if the defendant eight level offense and, challenged, prove to if conviction after a conviction deported previously judge the existence felony. application for an petition- doubt. The beyond a reasonable that, purposes for explain §to 2L1.2 charged it been in federal court. That state has a recidivist in statute the first made the conviction analogous “drug to place. provides What the classification 924(c), and, trafficking crime” under 101(a)(43) under [§ ] is federal rather consequence, under than state law. 101(a)(43)(B) of the INA. Id. Id. at 778-79. “Looking We concluded: at Pacheco petitioned rehearing. later for the conduct reflected in the state convic- case, Citing the oral in argument this Pa- tions, opposed precise to the state crime argued checo that rehearing should be charged, only way implement is the to granted because he had raised the same hypothetical-federal-felony view that Lo- argument here, that petitioners raise pez adopted holding.” as its at 779. Id. namely, that a state drug-posses- second Shortly after oral argument, we ordered sion offense cannot be treated as a federal supplemental briefing application on the when the alien was I supple- Pacheco to this case. In their in state court as a recidivist. brief, petitioners mental make several I, opinion Pacheco Pacheco assert- arguments why as to Pacheco I does not ed, argument. overlooked that Pacheco case, apply reject. to this all of which we argued also that this court in I Pacheco First, petitioners argue I Pacheco fully application did not consider the apply sentencing does not because it was a Supreme Court’s decision in v. Gon- case, immigration while this is an case. In zales, 47, 625, 549 127 U.S. S.Ct. 166 support argument, point of that petitioners (2006), rendering L.Ed.2d 462 deci- its out that this court in I cited Pacheco Finally, argued sion. Pacheco that rehear- sentencing cases from other circuits on the ing granted should be because two other question posses- circuits of whether a second state differently had decided the issue I after Pacheco had been submitted. sion conviction amounted to an 868 cit- ease, Supreme Court immigration was made

felony; no reference abrogated opinion its this ed—and dealing with immigration cases —lower n 127 Lopez, I, sentencing cases. See court 506 F.3d Pacheco Compare issue. among other sen- (citing, n. at 629 3 have dealt S.Ct. cases that sentencing (citing 549 Wilson, cases, v. States tencing United issue), with In re Carachuri- (4th Cir.2003), (BIA and United States 382, F.3d 506 Rosendo, 24 I & N Dec. (11th Cir.1999)). Simon, 168 F.3d (en banc) v. 2007) immigration (citing both it cases). Thus, clearly signaled the Court cita The lack of 101(a)(43) §of any interpretation I is meant in Pacheco immigration cases tions to uniformly, regardless apply the INA to interpret the identical We insignificant. the context. as the in this case statutory provisions interpretation I. Our court did in Pacheco Second, the Board’s deci- cite petitioners consistent, should be of the same statutes Carachuri-Rosendo, 24 I & in In re sions Clark v. the context. See regardless of (BIA Thomas, 2007), and In re Dec. N 371, 378, Martinez, 125 S.Ct. 543 U.S. (BIA 2007), as a reason 24 I & N Dec. (2005) (“To give these 160 L.Ed.2d I. Those cases were distinguish Pacheco mean [statutory] words a different same opinion I after the Pacheco decided would be category aliens] each [of them, majority released. interpret rather than invent a statute that, controlling federal absent Board held one.”); Ashcroft, 543 also Leocal v. see contrary, an alien’s precedent circuit 160 L.Ed.2d 12 n. 125 S.Ct. U.S. possession of a simple state conviction (2004) must be (stating statute “will not be consid- controlled substance consistently whether is en interpreted on aggravated felony conviction ered an or an in a criminal countered unless the alien’s the basis of recidivism context). drug offender was as a recidivist status by the alien or determined either admitted

Relying on dicta Gonzales-Gomez with a jury connection judge Achim, Cir. 535-36 simple possession of- for that prosecution 2006), nevertheless insist Carachuri, 24 I & N Dec. fense.” inter call for a different immigration cases Pauley filed a con- Roger Board Member aggravated defini pretation of Carachuri, joined by in curring opinion in sentencing cases. The dicta tion than Hurwitz, Acting Vice Chairman Gerald refer petitioners to which Gonzales-Gomez at 400. opposite view. See id. taking distinguishing made in the context of was in other circuits from sentencing decisions the Board’s decision We fail to see how Regardless in court. of what holdings in I affects the outcome spurn Pacheco Gonzales-Gomez, any distinc said in in II was This court Pacheco was this case. tion between Board’s about-face unconcerned about the pro identical purposes interpreting only explicitly not stat- in Carachuri. We felony definition aggravated agreed of the in II that we with the visions ed Pacheco Pauley’s con- Supreme reasoning after the Court’s of Board Member is foreclosed Gonzales, 47, disagreed that we Lopez curring opinion, in v. 549 U.S. but also decision (2006). 625, majority of the Board’s conclusion 166 L.Ed.2d 462 with the 127 S.Ct. only offense could possession Court drew no distinc state Lopez, Supreme felony if alien was aggravated an sentencing cases and immi be tion between in Pa- treated as a recidivist state court.3 Though Lopez itself was gration cases. and, citing majority decision in of the Board’s Judge dissented in Pacheco II Rovner II, ically compare checo 513 F.3d at 778. We see no the elements of the state reason deviate from view. offense with the elements of the federal See, e.g., offense. Gonzales v. Duenas- Next, the petitioners argue Pacheco Alvarez, 183, 815, 549 U.S. 127 S.Ct. 818- I not apply should here because the court 19, (2007); 166 L.Ed.2d 683 see also Gat what, presented in Pacheco I not with was Gоnzales, 758, tem v. 412 F.3d according petitioners, “key to the is the Cir.2005). explained We operation case, legal namely, issue” raised in this “categorical” so-called approach in immigrant “whether an who was Gattem: “one looks to the of the elements charged and convicted as a in recidivist question and, state offense in where neces criminal court” can nevertheless ‍​‌​‌​​​‌​‌​​​​‌​​‌​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‌​​​‌‌​​​​‍be labeled sary, charging pursuant document aggravated felon. Petitioners argue convicted, to which the petitioner was categorical mandates a “strict determine whether the offense corre approach” that allows courts to examine sponds to one of the crimes described as statutory what the state offense un- aggravated felonies INA.” der which immigrant charged pro- was at 765. scribes determining when whether federal

law defines the a felony. offense as See While that approach many works for States, 575, 602, Taylor v. United 495 U.S. cases, applying a strict categorical ap (1990). 2143, 110 S.Ct. 109 L.Ed.2d 607 proach in this case does not resolve the petitioners Because none of the issue of whether the petitioners’ multiple court, peti- recidivist state qualify offenses felo argue possession tioners that their state nies. The elements of posses the Illinois offenses cannot be treated as “analogous” sion offenses the committed 844(a) to recidivist and the elements of both a and a purposes defini- 844(a) misdemeanor violation of are the tion. Stone, same. Compare United States v. (11th Cir.1998) (describ 822, There are problems two with that line of elements of a possession of First, argument. arguably raised in both fense), People v. briefs,4 Frieberg, 147 Ill.2d reply Pacheco’s initial and it was 168 Ill.Dec. 589 N.E.2d treated passages court (1992) (describing opinion Pacheco II elements of violation quoted we have above. 570/402), Davis, Second, People 720 ILCS importantly, and more it does not 648, 116 Ill.App.3d IlLDec. scrutiny Ordinarily, survive on the merits. 519 N.E.2d1111 (1988) (describing order to determine whether a of- elements of Illi state “analogous”5 fense is to a nois offense of federal offense of a controlled substance), listed in aggra- the INA’s definition of an 2 Jury and Illinois Pattern In (4th ed.2000) (de- felony, vated categor- this court and others struction-Criminal 17.02 Carachuri, ap- "Analogous” by stated that she believed the 5. is the term that was used proach may this court took in I Pacheco have Supreme determining Court for whether a II, been mistaken. Pacheco 513 F.3d at offense, 781 compared state when to a federal (Rovner, J., dissenting). 101(a)(43) INA, qual- offense listed in aggravated felony. Lopez, an ifies as 27-29, Defendant-Appellant 4. See Brief of Barrett, (citing S.Ct. at 632 n. 8 Matter 20 I of Pacheco-Diaz, United States v. No. 05-2264 171, (BIA 1990)). & N Dec. 8, (7th 2006); May Reply Cir. Brief of Defen- 2-6, dant-Appellant at United States v. Pache- co-Diaz, Sept. No. 05-2264 Cir. 2006). decision, are to themselves possession elements of cannabis but consider scribing of 550/4). by Recidi- it until and the Court 720 ILCS bound unless violation it, key ingredient step differentiat- with cur- vism is overrules however out of a and a felony between misdemeanor rent in the relevant case law the trends drug be.”). for under federal possession Almendarez-Torres, offense case it an law. However is not element of along language with the and structure of drug possession, but instead is offense heightened makes clear that the a It enhances simply penalty provision. is an element of penalty for recidivism not for possible sentence a the maximum 844(a) §a offense. Because recidivism is years offense from one to two if element, com- categorical offense a commits the offense a the defendant after and parison of the elements of prior conviction for a controlled substance petitioners’ recent most stаte has become final. See offense offenses is inconclusive. 844(a); v. see also Almendarez-Torres Although categorical approach does States, 523 U.S. 118 S.Ct. United matter, Lopez not settle the does. The (1998) (“Congress 140 L.Ed.2d 350 Supreme that a Court held state never, knowledge, ... to a has our made drug felony was not an an element of an defendant’s recidivism proscribed by the where the conduct state proscribed offense where the conduct is felony penalized as a would been Stone, unlawful.”); otherwise law. Accord- misdemeanor federal Thus, the fact that the state offense ing to what is the classifica- Lopez, counts a conviction did not contain recidivist analogous tion of offense as federal a makes a element irrelevant. What state felony. classify to The state’s decision drug possession analogous for offense offense a misdemeanor is (and federal thus beside point. Lopez, See S.Ct. at felony) opposed to a federal misdemean- (“We Congress 632-33 cannot imagine recidivism, heightened penalty or is the incorporate took its own the trouble not an which is element offense. statutory scheme of felonies and misde- points The dissent out Justice ignore if it meant courts to meanors Apprendi Thomas’s signals concurrence punish given chose whenever State may not that Almendarez-Torres be the heavily.”). act more land longer. law of the much at 879 Infra case, penalty the increased the Supreme n. 3. But until Court explicit- simple converts a misdemeanor offense for case, ly by overrules that we are bound it. drug possession into a less- felony, like the Hendrix, See United States 509 F.3d er penalty for offense was the (7th Cir.2007) (“[W]e 362, 375 have held subject Lopez, purely S.Ct. at Supreme that unless until the Court Again, Lopez matter of federal law. tells Almendarez-Torres, chooses to overrule that, determining us when it comes to (citing cases)); we are bound it.” see consequences pur- state offense Calloway v. Montgomery, also law, poses of federal (7th Cir.2008) (“Almendarez-Tor- 940, 946 law, law, not state counts. the state While lives.”); generally res still see Saban v. conceivably of 376, Illinois could enhanced Labor, Dep’t U.S. of Cir.2007) (“The petitioners’ the state sentences under the Supreme Court has told 844(a),6 Illinois they provision the lower courts are not similar to to antic- ipate overruling Supreme point. question is beside the Court 570/408(a). 6. See 720 ILCS 2143, petitioners (1990).

whether the would have been 110 S.Ct. 109 L.Ed.2d 607 In subject to penalty having the increased Taylor, the Court adoрted a “modified” prior drug they committed a offense had categorical which, approach, under where been court. none As of a defendant was convicted of a state law federal petitioners disputes of existence burglary offense that was broader than the convictions, their the answer to that generic definition of burglary, a sentencing inquiry “yes”; petition- here must be court “go beyond could the mere fact of possession ers’ most recent state offenses conviction” to determine whether “jury properly aggra- are therefore classified actually required to find all the ele vated felonies. ments of generic burglary.” Taylor, 495 602, 110 Thus, U.S. at S.Ct. 2143. where a to, petitioners really object

What the of permitted state statute a defendant to be course, looking is this court at the petition- burglary convicted of for stealing from a prior drug ers’ convictions in order de- (such place other than a building as an termine that their most recent convictions automobile), government could still use They say constitute felonies. that conviction for purposes of obtaining going beyond that our the record of the an enhancement under the Armed Career most recent state by offense is not allowed shоw, Criminal Act if it could from the Lopez, and that we are in effect “retrying” charging jury document and the instruc by doing those offenses so. But tran- tions, that the defendant was actually con scending the state offense in order to de- (and victed of stealing from a building not analogous termine its counterpart federal automobile). Id.7 exactly what stat- 101(a)(43) ute and Lopez require. Section simply This case is a corollary applica- INA states that the term aggravat- tion approach explicitly recognized felony “applies ed to an offense described permissible Here, in Taylor. because in this paragraph whether in violation of the definition of the Illinois of- Federal or State law.” 8 U.S.C. fenses under which were con- 1101(a)(43). In order to determine if a i.e., victed are punish- conduct overbroad — state offense is “described” a federal able under those Illinois statutes could incorporated 101(a)(43), offense into constitute either a federal misdemeanor or necessarily have to view the state offense felony, federal depending on whether those through law, lens since “it is previous offenses occurred after a just plausible that Congress meant to conviction became final—we must look at authorize a State to overrule judgment its the records of the petitioners’ prior convic- consequences about the of federal offenses tions to determine the federal conse- which its expressly law re- quences petitioners’ offenses. Im- fers.” Lopez, 127 S.Ct. at 633. we, portantly, in so doing, consistent with Moreover, going beyond Taylor, the fact of the need not delve into the underlying most recent petitioners’ conviction to make facts of the state convictions. entirely determination is Taylor, consistent See U.S. 110 S.Ct. 2143 States, with Taylor v. United (“Congress 495 U.S. sentencing intended the court States, Shepard v. United transcript plea] colloquy 544 U.S. [a between (2005), 125 S.Ct. judge 161 L.Ed.2d comparable and defendant some [or] approach judicial Court extended that determining to the context record” in whether guilty to, pleas, holding actually that a pleaded guilty defendant and was of, charg- court consider "the generic burglary. terms of the convicted Id. document, plea agreement the terms of a S.Ct. 1254. 872 elements of the offense sentence are not the fact that the defendant only

to look jury dur may not disclosed to and be falling crimes within convicted of had been - ”); People trial .... see also v. Brad and not to the facts categories, certain Ill.Dec. ford, Ill.App.3d 135 187 convictions.”); Pache- underlying prior (1989). N.E.2d 930 543 II, at 513 F.3d 778-79. co two bring to our attention Petitioners rightly is concerned with The dissent circuits, not cases from other immigration ” ‘what-ifing.’ In- danger “hypothetical II, I or Pacheco cited in either Pacheco present not But that concern is 876. fra differently. this issue that have decided finding petition- that the in this case. (1st Gonzales, 74 Berhe v. 464 F.3d See qualify aggra- as ers’ state court offenses Blackman, Cir.2006); v. Steele felonies, looking are not vated (3d Cir.2001).8 cases, the In those 130 underlying peti- real offense conduct subsequent pos- state courts decided conjure in order to tioners’ state offenses felo- aggravated were not session offenses then a state offense up hypothetical conviction for nies because the records of hypothetical federal offense. analogous to not that the those state offenses did reveal Rather, only looking at the state we are procedures analogous followed state courts were in petitioners which the in 21 to those outlined offenses for Steele, Berhe, drug possession 137-38; convicted: a state F.3d at see also 236 fact (Recall 851 offense. 464 F.3d at 85-86. previous drug offense after a requires government to file an infor- (Notably, none of the contest drug conviction alleging prior mation record.) they the fact that have such it, contested, beyond if a reason- prove and that it is respectfully suggest We Third judge.) able to a The Circuit doubt dealing hypothetical. in the dissent large part its decision in on Steele based n implies offense that the dissent its concern about the fairness of trans- petitioners ought to have been convicted forming misdemeanors into an two state qualify aggravated state court felony. According to the Third aggravated i.e., with a offense Circuit, felons — defendants do not address misde- currently ex- recidivist element —does charges caution and meanor same en- ist Illinois. Illinois’s care indictment. If states did drug possession, hancement recidivist procedures not have similar to 851 not create a separate like does reasoned, Third then place, the Circuit possession.” offense for “recidivist See grave would not realize the defendants 5/lll-3(c) 570/408(a); 725 immigration consequences ILCS ILCS that would at- (“[T]he Steele, prior plea.9 fact of such tach to their misdemeanor intention to seek an 236 F.3d at 137. the State’s enhanced Steele, ("For argued, the 236 F.3d at 138 all that 8. After this case was briefed and n Mukasey, reveals, Circuit decided judge Sixth Rashid record before the (6th Cir.2008), F.3d 438 wherein the Sixth the initial conviction have been constitu- reached the same conclusion as the Circuit Rashid, tionally impaired.”); see also First Circuit in Berhe and the Third Circuit in Steele). (quoting F.3d at 447 Such a concern Steele. here, however, apply does ‍​‌​‌​​​‌​‌​​​​‌​​‌​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‌​​​‌‌​​​​‍not because ordi- narily proceedings removal are not aliens in 9. The Third Circuit’s concern also stemmed permitted collaterally challenge their con- dissent, from a desire—echoed see infra See, States, e.g., Taylor victions. v. United at 877 to that defendants were not assure (11th Cir.2005); F.3d Trench v. found to be felons on the basis of INS, Cir.1986). constitutionally invalid convictions. See

873 opinions felony language of statute’s clear that an “of- “carefully consider the We Inc., DePuy, in” qualifies circuits.” Klein v. fense described that statute our sister (7th Cir.2007). 553, In this 558 aggravated felony 506 F.3d an “whether in violation what, instance, unpersuaded by arewe of Federal or State law.” 8 U.S.C. view, approach to the 1101(a)(43). our is a misdirected Thus, § we respectfully dis- The Third fair- issue before us. Circuit’s agree with those circuits that hold other- Lopez; ness concern is inconsistent wise. clearly felony-mis- that

Lopez holds state argument make one Petitioners other meaningless demeanor classifications are that, They argue that attention. if merits a purposes determining whether here, we follow the rule of Pacheco I then felony aggravated is an state offense a second federal misdemeanor conviction Moreover, laws. simple drug possession could be treat- Circuits, in requiring First and Third if it felony, despite ed as were a federal record of an alien’s most recent state-court clearly fact that a such conviction is that conviction to demonstrate felony They a ar- not under federal law. procedures outlined in some form of that a gue such result “turn[s] court, § 851 were followed state essen- quite skep- standard on its head.” We are to the level tially procedures elevate those tical that a from such result follows reaf- Steele, the offense. See of an element of firming petitioners’ argu- Pacheco I. The (“While being the status of 236 F.3d at 137 presumes analogize ment that one could technically is not ‘a one time loser’ misdemeanor violations of a federal offense proscribed by element of the offense specifically incorporated aggravat- into the 844, § with the District agree Court felony a ed definition to violation of such.”); treated as see also can be incorporated the same federаl offense. Berhe, 85-86; v. 464 F.3d Gerbier Analogizing makes sense determin- when Cir.2002). (3d Holmes, 280 F.3d qualifies whether a state conviction that the problem approach with that aggravated felony. says The statute procedures clearly are not an ele- aggravated offenses described 844(a) ment of a offense.10 We do not in viola- definition count “whether doubt, course, a defendant federal Id. As most tion of Federal or State law.” charged under could not receive incorporated listed in or offenses government felony sentence unless the (be- aggravated felony into the definition §in complied procedures with the 851 for generic offenses such as murder sides proof prior drug notice and of a providing federal, rape) strictly are some mode LaBonte, conviction. See United States comparing state crimes to those federal n. 520 U.S. S.Ct. necessary. analogizing But crimes is (1997); L.Ed.2d 1001 Harris v. United dealing with a makes little sense when (11th Cir.1998). States, offense, like conviction for any require But we do not see reason federal incorporated specifically exclusively that a state have followed the felony definition. aggravated into the §in procedures set forth specifically are Since those federal statutes qualify for a state offense to as an order in the defini- referenced aggravated felony. requirement, Such a tion, us, compare anything. contrary run there is no need would Indeed, hearing explicitly to determine issues the statute states that the shall hold conviction, validity hearing if existence or be before the raised.... The shall court, challenged, ”). is to be determined jury.... court without a 851(c) (“The jury. 21 U.S.C. court per- A violation of one of those statutes either discretion to cancel removal of not, is, not, is, aggra- an felony, or is and thus or is son who has been convicted of 1229b(a)(3). felony. felony. § The aggravated vated 8 U.S.C. aggravated battle over what constitutes an pursue need not the matter We therefore, felony, fre- recurs with some hypothetical petitioners further. The in quency immigration and fervor cases. present pose implicates other concerns not may mean the difference be- The answer case, one, the main in a such as this where in this possibility staying tween analogizing a question revolves around children, country leaving family, behind specifical- state offense to a federal offense petitioners may and the homes the ly incorporated into the known their whole lives. Florencio Victor definition. in Manuel Jimenez-Mateo has lived this Finding petitioners’ argu- none of the country forty-two approximately for of his that persuasive, ments we conclude fifty-six years. per- He has been a lawful apply, rule of Pacheco I does and that the deported, manent resident since 1971. If in finding Board and DHS did not err job, leaving he will be behind his his two statutorily ineligible petitioners were United States citizen children and the for cancellation removal on the basis of country early he has called home since his having aggra- their been convicted of an lived in teens. Julio Cesar Calderon has felony. vated twenty country twenty-eight this for of his years. He has two United States citizen III. children who reside here. Omar Cende- Pacheco-Diaz, 506 F.3d 545 Cir. jas-Fernandez twenty-five years old and 2007), Thus, controls this case. each of the country in legally has lived this since 1992. petitioners’ most recent court convic state (and They have each been convicted of two drug possession tions constituted three) in one case misdemeanor crimes. under the INA because requires the law us to Whether consider drug each a previous occurred after con multiple these men’s convictions for misde- viction final. became We Affirm. drug pur- meanor crimes as felonies fоr poses proceedings of removal is critical to ROVNER, Judge, dissenting. Circuit them, many as it will be to others. in The three this case all in The answer lies buried a maze of have criminal records that include two or cross-referenced and criminal simple more misdemeanor convictions majority statutes. Because the has ex- illegal drug. of an None has a statutes, pertly set forth each of the I need felony conviction. The distinction between through cursory trace them a fash- felony convictions and misdemeanor con- ion. Immigration Nationality The Act victions is critical to non-citizens who are (INA) (It “aggravated felony” defines with a subject country. to removal from this list crimes includes traffick- great is also of import being those con- 1101(a)(43)(B). ing. 8 U.S.C. It also sidered for certain enhance- [aggravated felony] Substances Act finally, And the Controlled grasps within its reach more than Con- (CSA) drug conviction turns a second-time gress not, It example, intended. does if files the felony government into a the immigration allow an court to determine the court and necessary information with that conduct for which a defendant was 21 upon serves it the defendant. charged never and never convicted would 844, path If convoluted has had, felony have been a if gоvernment the over, weary eyes glaze made the reader’s hypothetically, prosecuted the defendant here, into for the they must come focus See, Rashid, e.g., under federal law. 531 the petitioners win or lose based on how (“We at F.3d 445 conclude that inclusion of Court, Supreme instructs the lower courts ‘hypothetical’ ‘hypothetical the word in the particular state crime to decide whether felony’ approach provide federal does not of the The falls within the rubric CSA. government reign the with free to make Gonzales, Court, in Supreme Lopez v. 549 ex-post determinations of what federal 625, 633, 47, 127 166 L.Ed.2d U.S. S.Ct. hypothetically crimes an individual could (2006), declared that a state of- 462 where, here, have been as analogous felony punishable to a fense prior drug-possession conviction was not at “only the Act under Controlled Substances prosecution subsequent issue the of the proscribes punishable if it conduct as a offense.”); drug-possession In re Carachu- felony under that federal law.” Id. ri-Rosendo, 24 I (noting & N Dec. at 393 courts, own, including our Some pure “hypothetical approach that a would Supreme approach Court’s described Immigration Judges authorize to collect a Lopez “hypothetiсal as the federal felo disjunctive series of facts about the re- See, e.g., Escobar Barraza ny approach.” history, spondent’s criminal bundle them (7th 388, Mukasey, v. 519 F.3d 390 Cir. together pro- for the first time in removal Pacheco-Diaz, 776, 2008); 513 F.3d U.S. v. resulting then ceedings, and declare Cir.2008) (7th (“Pacheco-Diaz II”); 779 to be ‘an offense’ that could have package Mukasey, see also Rashid v. 531 F.3d felony.”) prosecuted been as Federal (6th Cir.2008); In re 443 Carchuri-Rosen parameters needed to The additional 2007) (BIA do, 24 I & N Dec. 396 felony hypothetical federal constrain J., (Pauley, concurring). following categorical approach come from the which felony hypothetical approach, federal that, requires determining when which to see whether a defendant’s convic look to treat as Congress state crimes intended felony if the defen tion would have been of the aggravated purposes felonies for the under federal prosecuted dant had been INA, only court must look to the ele- 632-33; Lopez, law. 127 S.Ct. Gon (and, question the state offense in ments of Achim, F.3d zales-Gomez document) necessary charging when Cir.2006). (7th approach, Under this “ whether the offense corre- to determine ‘any felony under phrase punishable sponds to оne of the crimes described pun mean CSA’ is read ‘to felony the INA. under Gat- felony the CSA.’” ishable Gonzales, tem v. Rashid, The 442-43. Cir.2005); Taylor also v. United see methodology did not describe its Court States, 575, 602, 495 U.S. S.Ct. felony approach,” a “hypothetical federal (the (1990) and, fact, categorical “hypothetical” does 109 L.Ed.2d the term amalgam hypothetical the trial This feder- approach “generally requires felony categorical approaches al court to look to the fact of conviction means that courts not in- statutory and the definition offense.”). dependently assess a defendant’s conduct hypothetical federal to determine whether such conduct would categorical approach and the are not mutu conviction, if, a federal warrant can, A court and indeed ally exclusive. example, government had sufficient ev- categorical ap approach must use the defendant, charge idence to if the de- felony. plying hypothetical pled charges, fendant had not to lesser if precisely methodology This is the Lo sup- the critical evidence had not been required when it announced pez Court jury if a pressed, had found sufficient evi- that, felony “a state a offense сonstitutes guilt, if all appeals dence had been punishable Controlled Sub unsuccessful, government or if the had is, only Act if it stances the state [that opted charge to the defendant as a recidi- proscribes punishable conduct offense] Lopez hypothetical vist. constrains our felony Lopez, under that federal law.” “what-ifing” to consideration con- words, In S.Ct. at 633. other one looks to proscribed duct in the of convic- offense description of the state offense to see tion, and does not allow to us consider in that whether elements enunciated in engaged whether the defendant some correspond felony. offense to a federal other conduct that a would been fed- majority categor- The states that a strict felony long eral if a chain of possibilities approach ical does not matter in settle the (or one) even had come to fruition. Due to case, application Lopez but does. prosecutorial making, decision limited re- however, implies, Ante 869. This sources, factors, legal strategy, and other Lopez does not require use of the prosecutors charge state often and convict fact, categorical approach. In de- defendants of that significantly offenses categorical approach mands that the and under-represent the actual conduct of the hypothetical felony applied federal be way, defendant. It is true that in this that, together. Lopez specifically instructs prosecutorial state decisions will affect the deciding if a when state offense constitutes Department Security’s of Homeland CSA, felony under the a tribunal must (DHS’s) ability to pursu- remove alien proscribed by look at the conduct the state DHS, ant to federal law. Lopez, (emphasis 127 S.Ct. at 633 however, skip cannot the inconvenient and offense. added). course, proscribed Of the conduct imposed by cumbersome hurdles criminal always state offense be procedure and base decisions on convic- identical to the defendant’s conduct. hypothetically tions state court could doubt, majority There no as the points begin have secured. compare When (ante 870) out that the state’s decision “an offense a defendant could have been classify felony the offense as a or a charged with in state court with an offense misdemeanor is irrelevant and the the defendant charged could have been definition matters is the one the fеd- court,” in with we have reached government eral uses to define the behav- many hypothetical “one too appli- levels ior. But this statement II, skirts the issue. cation.” Pacheco-Diaz 513 F.3d at identify We still need to which behavior 781. As the Third Circuit concluded when plug issue, we must into the federal classification considering the identical can- “[o]ne system. Lopez tells us it is the be- not suffer the disabilities associated with havior having described the state offense. been convicted of an a second or offense has been convicted more unless the unless one Blackman, felony.” government gives Steele the court and defen- (3d Cir.2001) (emphasis original). dant notice that it intends to use prior protections place the normal Without convictions. 21 U.S.C. 851. history is

when criminal vetted before majority’s Framed way, another cer- court, constitutionally relying on we risk petitioners tain that the conclusion would in- elevating infirm minor convictions subject have been to an increased penalty in a unin- fractions into felonies manner they had been federal court is by Congress. tended majority incorrect. The states: fact, Congress recognized the inher- conceivably While the state of Illinois relying prior ent on convictions danger petitioners’ cоuld have enhanced drug offense simple to turn a misdemeanor state the Illinois provi- sentences under into a when it drafted recidivist sion similar to beside the criminal 844 and 851 of code. Un- point. question is whether the 851(a)(1), gov- der before the subject would have been may rely upon ernment penalty the increased for having com- sentencing purposes, must file prior drug they mitted a offense had court, the and serve on defense counsel an charged been court. As none revealing previous the convic- information the petitioners disputes of the existence rely. it The upon tions which will Id. convictions, prior of their the answer to give court then the defendant an must inquiry “yes”; that here must be the challenge prior the opportunity to convic- and, petitioners’ tion if the defendant the alle- most recent state denies conviction, validity prior the gations or of offenses properly are therefore classified hearing government hold a in which the as felonies. or prove validity

must the existence of the (foot- original) Ante at (emphasis 871 beyond a prior conviction reasonable omitted). however, petitioners, note The (c)(1).1 requirements The doubt. Id. at of subject the would have been to increased 851(a) § If pro govern- are not forma. the only they charged if had been as penalty notice, court ment fails to file such the repeat § 21 offenders under U.S.C. 851. prior cannot conviction to enhance use all, that big they And is a “if.” After were LaBonte, penalty. States v. United repeat not offenders in state as 520 n. 117 S.Ct. 137 U.S. many the “one too levels of court. This is (1997); v. Ar- L.Ed.2d 1001 United States con- hypothetical” with which were reolar-Castillo, 703-04 cerned Pacheco-Diaz. See Pacheco- Cir.2008). majority gone great has The to II, Diaz at 781. lengths highlight only thing to 851(a) § requirements of are not that counts under is the federal good without reason. As the Sixth Circuit (ante government’s system classification noted, or “many misdemeanor lesser con- 870), it the federal but classification questionable processed victions are system that makes it clear that there can 844(a) § found if be no conviction under circumstances and be invalid however, challenge person may validity permitted deny 1. A to not of a he was still prior years more conviction that is than five allegation of the information con- 851(e). § old. 21 U.S.C. One of the three 851(c)(1). § viction indicated in Further- Jimenez-Mateo, here, would have more, requirements of 21 U.S.C. notice challenging validity been barred from of applied. § would still Presumаbly, his first offense. (cit- Rashid, challenged.” requirements 531 F.3d at 447 with the absolute of amici curiae of the Criminal brief § 851. But we know in no uncer- Attorneys Michigan of and the Defense government may tain that the terms Association). York Defenders ‍​‌​‌​​​‌​‌​​​​‌​​‌​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‌​​​‌‌​​​​‍New State engage portion the recidivist of The Third Circuit too commented on the meeting requirements without all of the of previous on a misde- danger relying LaBonte, that section. 520 U.S. at 754 n. meanor where its existence and constitu- majority 117 S.Ct. 1673. The dismisses part integrity litigated tional was never by paradox stating skeptical Steele, proceeding. criminal that such a result would follow. State Immigra- F.3d at 137-38. The Board of violations, argues, compared must be con- Appeals, weighing tion after these analogous with and then molded into the cerns, concluded unless constrained 844(a). federal offense of 21 U.S.C. otherwise, by circuit “an law alien’s State Federal violations under the ma- simple possession conviction for will not be hand, jority argues on the other need not an aggravated felony considered compared anything, they to be so be- on basis recidivism unless the alien’s govern- as a recidivist crimes if status offender come recidivist either admitted the alien or determined ment follows the dictates of 851. This by a judge jury connection with a If confusing. gov- rationale is the federal for that of- prosecution simple possession necessary give ernment deems it a fed- Carachuri-Rosendo, fense.” In re 24 I & protections eral defendant concluding, Dec. at N so etc.) (notice, opportunity respond before approach Board noted that its differed subjecting defendant approach from this Circuit’s in Pacheco- charges a repeat as offender under Although by Diaz. constrained the bind- 844(a), why § would state recidivists— in ing precedent of Pacheco-Diaz this Cir- being analogized whose crimes are into the cuit, the Board has stated that it will de- § require rubric of the same —not approach cline to follow the Pacheco-Diaz Surely protections? Congress does not It my position elsewhere. is now that the in validity more confidence the of First, Board and in our sister courts the (ofttimes convictions from the thousands of Third, and Sixth Circuits have the better minuscule, isolated, under-resourced) and See, e.g., Mukasey, view. Rashid v. state (6th country courts around the than it has Cir.2008); F.3d 438 Berhe v. Gon- (1st zales, Cir.2006); event, in 464 F.3d 74 its own federal courts. In Steele (3d Cir.2001). Blackman, 236 F.3d 130 Congress seems clear that intended for short, a simple conviction for misdemeanor recidivists to be as recidivists be- in possession adju- which a court has never fore a court pile punish- on to the dicated or considered fact or validity of ment. prior a equated conviction should not be say This is not to that a state recidivist possession

with a recidivist un- § law must mirror 21 844(a). precisely U.S.C. der 21 U.S.C. before a state recidivist can be labeled a One more weight scenario adds to this 844(a). pursuant felon to 21 U.S.C. One If majority’s contrary conclusion. the- might imagine long as defendant ory correct, then a federal defendant opportunity has some form of notice of and who has been separate convicted of two conviction, challenge prior then the federal misdemeanor crimes qualify state offense would as a conviction could be deemed an aggravated felon de- spite government’s comply punishable failure to under CSA and thus meet case, I), enhancement where- Lopez.2 in declared the standard question, that the defendant’s sec- Circuit, considering this in we concluded Sixth an individ- “[pjrovided conviction for concluded ond misdemeanor under state’s convicted marijuana ual has been be treated as a federal of would that the elements statute and recidivism provision of 21 felony under the recidivist drug-posses- include 844(a). that offense at 550. issued Id. We final at the that has become sion conviction after consid- decision in Pacheco-Diaz of- of the second the commission time of Supreme Court’s decision Lo- ering individual, under the cate- fense, then briefing on without the benefit of pez, but aggra- has committed approach, gorical recently opin- of that released impact 844(a).” Rashid, felony under vated ion, Board issued its deci- and before the original); accord (emphasis at I Although in Carachuri-Rosendo. sion Carachuri-Rosendo, 24 I & N Dec. In re in Pacheco- panel authored the decision (“State prosecutions recidivism at 391 Diaz, my I noted in dissent treatment to the CSA’s correspond must above, I now rehearing, and be- denial of defendant with by providing the recidivism incorrectly decided. lieve that case was to be heard on opportunity notice and II, F.3d at 779. Pacheco-Diaz See proper.”). punishment recidivist whether I looked at opinion in Pacheco-Diaz Our need not determine juncture At than, as Lo- conduct rather Pacheco-Diaz’s opportuni- closely the state notice how instructs, proscribed the conduct pez those challenge must resemble ties to Pacheco-Diaz for which Mr. the offense of the cases rule. In each thе federal convicted, way give did not and in that here, were con- presented protec- and the categorical approach with no simple misdemeanors victed of 851 their of U.S.C. tive mechanisms con- conviction. The any prior mention II, due. See Pacheco-Diaz for which by the offenses prohibited duct Cir.2008).3 779-781 simple posses- convicted was they were punishable crime not sion—a immigration courts to look Requiring CSA. by the offense proscribed the conduct that those courts not mean conviction does recent majority hangs its hat on our are behol- reviewing federal courts Pacheco-Diaz, and the v. States decision United court Cir.2007) (Pacheco-Diaz in which a state to the manner den 506 F.3d 545 prior conviction provides eluded that the fact for a does have a law that 2. Illinois posses- statute —a recidivist a recidivism enhancement for indeed an element of 570/408(a)) (720 requires and ILCS sion with the four dissen- position which allies him give 520-21, the defendant notice the state Id. at ters in Almendarez-Torres. the enhancement. intention to seek state's J., (Thomas, concurring). Thom- S.Ct. 2348 3(c). ILCS 5/111— that at least change mind now means as’ Supreme Court five current members much of the fact majority also makes 3. The fact of a support рosition that the penalty provision and not is a that recidivism a recidi- an element of is indeed of conviction. Ante an element of the offense event, this distinction In vism crime. Almendarez-Torres, 523 U.S. (citing at 870 224, 244, get Supreme Court’s us around the does not L.Ed.2d 350 S.Ct. to the con- Lopez that we look command in law, (1998)). Although reigning the viabil- still offense of convic- proscribed in the state duct Ap- in doubt. In ity this is much notion described con- this case that statute tion. In 466, 520, Jersey, prendi 530 U.S. v. New simple possession would Thomas, 2348, 147 L.Ed.2d Justice S.Ct. duct— —that felony under concurrence, qualified as an siding with the err- admitted federal law. and con- ing position in Almendarez-Torres has labeled a crime. Federal law must ABENA, D.D.S., Albert G. the classification for fed- provide

and does Plaintiff-Appellant, only question felonies. The is: “what eral classifying?” the federal law Under pure hypothetical felony approach, federal LIFE METROPOLITAN INSURANCE law con- federal looks the defendant’s American COMPANY and Dental duct and classifies that conduct under the Partners, Incorporated, Defendants- regardless construct of the actual Appellees. hypothet- offense of conviction. Under modified No. 07-2531. felony approach ical federal categorical approach, federal law clas- Appeals, United States Court sifies the conduct for which the defendant Seventh Circuit. convicted, or, says, Lopez the con- proscribed by duct the state statute. Lo- Argued Jan. 2008.

pez, 127 S.Ct. 633. Sept. Decided sum, by In the command of categorical approach to federal/state comparison, obligated

offense we are

look at the offense of conviction and True,

the conduct described therein. out, majority points there are limited may peek in which we

situations behind conviction, charging

the face of the

documents, Gattem,

(2005), charging but documents in

these cases no help. would have been appeal

each case the state convicted simple

the defendant of a misdemeanor mention of any previous

without misde-

meanor prosecutors convictions. The state charge not to

opted these defendants as

recidivist crime offenders and we history

cannot re-write to make it so. The

offenses for which each of these proscribe

were convicted do not conduct would be a under the CSA.

Consequently, I would hold none of

their convictions constitutes an 1101(a)(43)(B) of the INA. respectfully

I dissent. notes government’s ar- counter ers therefore (b)(1)(C), “aggra- the term subsection stat- by asserting that the Illinois gument meaning as felony” has the same vated petitioners were utes under which 101(a)(43) INA. §in of the U.S.S.G. given are not the state recently convicted most (2007). 3(A) The note application § 2L1.2 felony to a violation “counterparts” had found that the sentenc- district court re- § none of those statutes since because, among applied ing enhancement give Illinois to notice of quired the state of January 2002 Pacheco-Diaz’s things, other prove prior convictions petitioners’ marijuana follow- possession, for convictions, §as the existence of those 2000 conviction for ing it did an October been required had would would be treated as marijuana possession, court. Illinois prosecuted in federal While felony under the recidivist en- a federal sentencing for a enhance- provide law does 844(a). § of 21 U.S.C. provision hancement drug possession, recidivist ment for I, at 548. Pacheco 506 F.3d 570/408(a), petitioners’ none of the ILCS agreed I with that This court Pacheco recent sentences for their most opinion, In our we first refer- reasoning. provi- enhanced under offenses was Supreme six ‍​‌​‌​​​‌​‌​​​​‌​​‌​‌‌​​​​​‌​​‌‌‌‌‌​‌‌​‌​​​‌‌​​​​‍of the Court’s enced footnote Thus, question in this case sion.1 the real Gonzales, (or wherein the opinion Lopez subse- whether an alien’s second Congress had simple drug Court noted quent) Supreme state conviction 844(a) aggravated felony § to an felo- offense possession amounts classified a indeed ny “felony punishable in terms of a under bringing that trafficking,” “illicit thus Act” when the Substances Controlled aggra- of an within the definition offense the alien as a recidivist. state did not treat 101(a)(43)(B) felony under vated I, Pacheco 506 F.3d 548. We INA. circuit, already has question In this existed in answered, recognized split that a circuit in a different con- been albeit of reen- 2. Pacheco-Diaz had been convicted requires that the be 1. Illinois law defendant previously hav- tering United States after to seek given of the state’s intention notice deported, in violation of 8 U.S.C. been charge. enhancement in the such an I, 1326(a) (b)(2). F.3d at §§ Pacheco 506 3(c). ILCS 5/111— 547. sentencing regarding context the treat- We denied Pacheco’s motion for rehear- 844(a) respect ment of to the INA’s (Pa- ing. United States v. Pacheco-Diaz aggravated felony definition. We sided II), (7th Cir.2008) checo 513 F.3d 776 (per analogized with those circuits that a sec- curiam). swayed This court was not drug possession ond state conviction for to the fact that Pacheco’s Illinois convictions 844(a) determining when whether that were not based on that state’s recidivist state conviction constituted an said, Lopez, statute. we held that classifi- felony purposes cation of an offense for the purpose of guidelines. Id. at 549 (citing United 101(a)(43) depends on how the defen- Palacios-Suarez, States v. 418 F.3d dant’s conduct would be treated under fed- (6th Cir.2005); United States v. San- eral law: chez-Villalobos, 576-77 If the conduct of which the defendant Cir.2005); v. Simpson, United States has been convicted would be a (2d Cir.2002)). Pa- 85-86 “Had law, under federal then it comes within charged checo been in federal court with 101(a)(43)of if [§ it meets that INA] drug possession charge,” his second requirements statute’s concerning the stated, eligible “he would have been for a subject-matter of the crimes and the recidivist enhancement under section length of the hypo- sentence.... In a 844(a).” Id. at second state thetical-federal-felony approach, it does possession conviction analogous was to a not matter whether the defendant the CSA because recidivist; exposed possible would have Pacheco to a state court as a of imprisonment years indeed, sentence of two had it does not matter whether the

Notes

notes term Guidelines, “[t]he ments Sentencing under the time.) applies to an offense but described topic this is for another Ordi- narily paragraph whether violation of state or persons subject may pe- to removal 1101(a)(43). federal law.” Id. at Attorney tition the United States General The points and ask that he use his discretion INA then readers to the criminal to cancel 1229b(a). 924(c)) (specifically a removal order. code 8 U.S.C. 18 U.S.C. for a General, however, Attorney a drug trafficking has no definition of crime. code, turn, anywhere majority in the appear opin- of the criminal That section “any drug trafficking crime as say defines ion. That is not to the term the Controlled felony punishable felony” “hypothetical inapt. It 924(c)(2). Act.” 18 U.S.C. Substances simply requires parameters additional lest

Case Details

Case Name: Fernandez v. Mukasey

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 15, 2008

Citation: 544 F.3d 862

Docket Number: 06-3476, 06-3987, 06-3994

Court Abbreviation: 7th Cir.