Lead Opinion
Petitioners Florencio Victor Jimenez-Mateo, Julio Calderon, and Omar Cende-jas-Fernandez (collectively “petitioners”) were ordered removed from this country. The orders of removal were based on findings that petitioners’ most recent state-court convictions for drug possession offenses constituted aggravated felonies under § 101(a)(43)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), because each of the petitioners had previously been convicted of a controlled substance offense. The petitioners have filed' timely petitions for review in this court. They assert that their first and second state-court convictions for simple drug possession cannot amount to an “aggravated felony” under § 101(a)(43)(B) of the INA. Because we have already found in United States v. Pacheco-Diaz,
I.
We briefly summarize the facts and procedural history of each of the petitioners’ cases below.
A. Julio Calderon
Calderon is a citizen of Mexico who entered the United States illegally. He is also a documented member of the Latin Kings street gang, a national criminal orgаnization based in Chicago. See generally United States v. Olson,
In October 2006, the Department of Homeland Security (“DHS”) initiated removal proceedings against Calderon. DHS charged that Calderon was subject to removal under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43). DHS listed Calderon’s three marijuana possession offenses as the basis for the aggravated felony charge. On November 8, 2006, DHS issued a final administrative removal order finding that Calderon was an aggravated felon and ordering him removed from the United States to Mexico. Calderon timely filed a petition for review of DHS’s order in this court.
B. Omar Cendejas-Fernandez (“Fernandez”)
Fernandez is a citizen of Mexico who was admitted to the United States as a lawful permanent resident in 1992. On September 28, 2001, Fernandez was convicted of two counts of cocaine possession in violation of 720 ILCS 570/402(c). On November 7, 2005, Fernandez again was convicted of cocaine possession in violation of 720 ILCS 570/402(c).
On March 29, 2006, DHS initiated removal proceedings against Fernandez. DHS charged that Fernandez was removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in § 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B). Fernandez was ordered to appear before an Immigration Judge (“IJ”). After a hearing on May 22, 2006, the IJ issued an oral decision ordering that Fernandez be removed to Mexico. In reaching that decision, the IJ first cited this court’s decision in Ali v. Ashcroft,
Fernandez appealed the IJ’s decision to the Board of Immigration Appeals (“Board”). He argued that the IJ should not have found that his convictions qualified as an aggravated felony. The Board, however, agreed with the IJ that a state offense for possession of a controlled substance that occurred after a prior drug conviction qualified as a “drug trafficking crime” under § 101 (a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B), because, under § 844(a) of the CSA, the most recent conviction would be defined as a felony. Consequently, the Board affirmed the IJ’s decision. Fernandez filed a timely petition in this court for review of the Board’s decision.
C. Florencio Victor Jimenez-Mateo (“Mateo”)
Mateo is a citizen of the Dominican Republic who was admitted to the United States on an immigrant visa in October
After his conviction in April 2006, DHS filed a notice to appear charging that Ma-teo was removable under § 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)®, because of his April 2006 conviction for possession of a controlled substance. At a hearing before an IJ, Mateo through counsel conceded that he was removable as charged, but sought cancellation of removal. In an oral decision, the IJ found that Mateo was removable from the United States as an alien convicted of a controlled substance violation. The IJ also found that Mateo was statutorily ineligible for cancellation of removal because he had been convicted of an aggravated felony. In particular, the IJ classified Mateo’s 2006 drug possession offense as an aggravated felony, since that offense occurred after Mateo had been convicted previously of two controlled substance offenses. Ma-teo appealed the IJ’s aggravated felony finding to the Board, but the Board affirmed the IJ’s decision. Mateo then filed a timely petition for review of the Board’s order affirming the IJ.
II.
The sole issue on this appeal is whether the second (or, as is the case with Mateo, third) of each of the petitioners’ multiple state-court convictions for drug possession was accurately characterized as an aggravated felony under § 101(a)(43)(B) of the INA. Section 101(a)(43) of the INA provides an extensive list of crimes that qualify as aggravated felonies. Specifically, subsection 101(a)(43)(B) adds “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18) ... whether in violation of Federal or State law” to that list. 8 U.S.C. § 1101(a)(43). Section 924(c), in turn, defines the term “drug trafficking crime” as, among other things, “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C. § 924(c)(2). As the Supreme Court has stated, a state drug offense is considered “analogous” to a “felony punishable under the Controlled Substances Act,” and, as a result, an aggravated felony for purposes of the INA, “only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales,
In this case, the petitioners argue that their state convictions were wrongly classified as aggravated felonies because the state statutes under which they were convicted only proscribe simple possession, which is not a felony under the CSA. In response, the government contends that the petitioners’ most recent convictions for drug possession are analogous to what the courts refer to as “recidivist possession” under 21 U.S.C. § 844(a), which is a felony under the CSA, because those convictions were preceded by at least one prior drug possession conviction. The pertinent portion of § 844(a) states:
It shall be unlawful for any person knowingly or intentionally to possess a controlled substance.... Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or both, except that if he commits such offense after a prior conviction under this subchapter or sub-chapter II of this chapter, or a prior conviction fоr any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, heshall be sentenced to a terra of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500....
21 U.S.C. § 844(a). The second sentence in the portion of § 844(a) quoted above transforms what would ordinarily be a misdemeanor offense for simple possession into a felony where the current offense was preceded by a prior conviction for a controlled substance offense. However, for the government to obtain a felony conviction under § 844(a), it has to, pursuant to 21 U.S.C. § 851, file notice of the prior conviction and, if challenged, prove to the judge the existence of the prior conviction beyond a reasonable doubt. The petitioners therefore counter the government’s argument by asserting that the Illinois statutes under which the petitioners were most recently convicted are not the state “counterparts” to a felony violation of § 844(a), since none of those statutes required the state of Illinois to give notice of the petitioners’ prior convictions or prove the existence of those convictions, as § 851 would have required had petitioners been prosecuted in federal court. While Illinois law does provide for a sentencing enhancement for recidivist drug possession, 720 ILCS 570/408(a), none of the petitioners’ sentences for their most recent possession offenses was enhanced under that provision.
In this circuit, that question has already been answered, albeit in a different context. Just before oral argument in this case, this court decided United States v. Pacheco-Diaz (Pacheco I),
This court in Pacheco I agreed with that reasoning. In our opinion, we first referenced footnote six of the Supreme Court’s opinion in Lopez v. Gonzales, wherein the Supreme Court noted that Congress had indeed classified a § 844(a) felony offense as “illicit trafficking,” thus bringing that offense within the definition of an aggravated felony under § 101(a)(43)(B) of the INA. Pacheco I,
Pacheco later petitioned for rehearing. Citing the oral argument in this case, Pacheco argued that rehearing should be granted because he had raised the same argument that petitioners raise here, namely, that a second state drug-possession offense cannot be treated as a federal felony under § 844(a) when the alien was not charged in state court as a recidivist. The opinion in Pacheco I, Pacheco asserted, overlooked that argument. Pacheco also argued that this court in Pacheco I did not fully consider the application of the Supreme Court’s decision in Lopez v. Gonzales,
We denied Pacheco’s motion for rehearing. United States v. Pacheco-Diaz (Pacheco II),
If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within [§ 101(a)(43) of the INA] if it meets that statute’s requirements concerning the subject-matter of the crimes and the length of the sentence.... In a hypothetical-federal-felony approach, it does not matter whether the defendant was charged in state court as a recidivist; indeed, it does not matter whether the state has a recidivist statute in the first place. What provides the classification under [§ 101(a)(43) ] is federal rather than state law.
Id. at 778-79. We concluded: “Looking at the conduct reflected in the state convictions, as opposed to the precise state crime charged, is the only way to implement the hypothetical-federal-felony view that Lopez adopted as its holding.” Id. at 779.
Shortly after oral argument, we ordered supplemental briefing on the application of Pacheco I to this case. In their supplemental brief, the petitioners make several arguments as to why Pacheco I does not apply to this case, all of which we reject. First, the petitioners argue that Pacheco I does not apply because it was a sentencing case, while this is an immigration case. In support of that argument, petitioners point out that this court in Pacheco I cited only sentencing cases from other circuits on the question of whether a second state possession conviction amounted to an aggravated
Relying on dicta in Gonzales-Gomez v. Achim,
Second, petitioners cite the Board’s decisions in In re Carachuri-Rosendo, 24 I & N Dec. 382 (BIA 2007), and In re Thomas, 24 I & N Dec. 416 (BIA 2007), as a reason to distinguish Pacheco I. Those cases were decided after the Pacheco I opinion was released. In them, a majority of the Board held that, absent controlling federal circuit precedent to the contrary, an alien’s state conviction for simple possession of a controlled substance “will not be considered an aggravated felony conviction on the basis of recidivism unless the alien’s status as a recidivist drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution for that simple possession offense.” Carachuri, 24 I & N Dec. at 394. Board Member Roger Pauley filed a concurring opinion in Carachuri, joined by Acting Vice Chairman Gerald Hurwitz, taking the opposite view. See id. at 400.
We fail to see how the Board’s decision to spurn Pacheco I affects the outcome in this case. This court in Pacheco II was unconcerned about the Board’s about-face in Carachuri. We not only explicitly stated in Pacheco II that we agreed with the reasoning of Board Member Pauley’s concurring opinion, but also that we disagreed with the majority of the Board’s conclusion that a state possession offense could only be an aggravated felony if the alien was treated as a recidivist in state court.
Next, the petitioners argue that Pacheco I should not apply here because the court in Pacheco I was not presented with what, according to the petitioners, is the “key legal issue” raised in this case, namely, “whether an immigrant who was not charged and convicted as a recidivist in criminal court” can nevertheless be labeled an aggravated felon. Petitioners argue that Lopez mandates a “strict categorical approach” that allows courts to examine only what the state statutory offense under which the immigrant was charged proscribes when determining whether federal law defines the offense as a felony. See Taylor v. United States,
There are two problems with that line of argument. First, arguably raised in both Pacheco’s initial and reply briefs,
While that approach works for many cases, applying a strict categorical approach in this case does not resolve the issue of whether the petitioners’ multiple drug offenses qualify as aggravated felonies. The elements of the Illinois possession offenses the petitioners committed and the elements of both a felony and a misdemeanor violation of § 844(a) are the same. Compare United States v. Stone,
The dissent points out that Justice Thomas’s concurrence in Apprendi signals that Almendarez-Torres may not be the law of the land much longer. Infra at 879 n. 3. But until the Supreme Court explicitly overrules that case, we are bound by it. See United States v. Hendrix,
Although the categorical approach does not settle the matter, Lopez does. The Supreme Court in Lopez held that a state drug felony was not an aggravated felony where the conduct proscribed by the state felony would have only been penalized as a misdemeanor under federal law. According to Lopez, what counts is the classification of the analogous federal offense as a felony. The state’s decision to classify the offense as a felony or a misdemeanor is beside the point. See Lopez,
In this case, the increased penalty that converts a simple misdemeanor offense for drug possession into a felony, like the lesser penalty for the offense that was the subject of Lopez,
What the petitioners really object to, of course, is this court looking at the petitioners’ prior drug convictions in order to determine that their mоst recent convictions constitute aggravated felonies. They say that our going beyond the record of the most recent state offense is not allowed by Lopez, and that we are in effect “retrying” those offenses by doing so. But transcending the state offense in order to determine its analogous federal counterpart is exactly what the aggravated felony statute and Lopez require. Section 101(a)(43) of the INA states that the term aggravated felony “applies to an offense described in this paragraph whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43). In order to determine if a state offense is “described” by a federal offense incorporated into § 101(a)(43), we necessarily have to view the state offense through the lens of federal law, since “it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers.” Lopez,
Moreover, going beyond the fact of the most recent possession conviction to make that determination is entirely consistent with Taylor v. United States,
This case is simply a corollary application of the approach explicitly recognized as permissible in Taylor. Here, because the definition of the Illinois possession offenses under which petitioners were convicted are overbroad — i.e., conduct punishable under those Illinois statutes could constitute either a federal misdemeanor or federal felony, depending on whether those offenses occurred after a previous drug conviction became final — we must look at the records of the petitioners’ prior convictions to determine the federal consequences of the petitioners’ offenses. Importantly, in so doing, we, consistent with Taylor, need not delve into the underlying facts of the petitioners’ state convictions. See Taylor,
The dissent is rightly concerned with the danger of “hypothetical ‘what-ifing.’ ” Infra at 876. But that concern is not present in this case. In finding that the petitioners’ state court offenses qualify as aggravated felonies, we are not looking at the real offense conduct underlying the petitioners’ state offenses in order to conjure up a hypothetical state offense that is then analogous to a hypothetical federal offense. Rather, we are only looking at the state offenses for which the petitioners were in fact convicted: a state drug possession offense after a previous drug offense. (Notably, none of the petitioners contest the fact that they have such a record.)
We respectfully suggest that it is only the dissent that is dealing in hypothetical. The offense that the dissent implies the petitioners ought to have been convicted of in state court to qualify as aggravated felons — i.e., a possession offense with a recidivist element — does not currently exist in Illinois. Illinois’s sentencing enhancement for recidivist drug possession, like § 844(a), does not create a separate offense for “recidivist possession.” See 720 ILCS 570/408(a); 725 ILCS 5/lll-3(c) (“[T]he fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial .... ”); see also People v. Bradford,
Petitioners bring to our attention two immigration cases from other circuits, not cited in either Pacheco I or Pacheco II, that have decided this issue differently. See Berhe v. Gonzales,
Petitioners make one other argument that merits attention. Thеy argue that, if we follow the rule of Pacheco I here, then a second federal misdemeanor conviction for simple drug possession could be treated as if it were a federal felony, despite the fact that such a conviction is clearly not a felony under federal law. They argue that such a result “turn[s] the Lopez standard on its head.” We are quite skeptical that such a result follows from reaffirming Pacheco I. The petitioners’ argument presumes that one could analogize misdemeanor violations of a federal offense specifically incorporated into the aggravated felony definition to a felony violation of the same incorporated federal offense. Analogizing makes sense when determining whether a state conviction qualifies as an aggravated felony. The statute says that offenses described in the aggravated felony definition count “whether in violation of Federal or State law.” Id. As most of the offenses listed in or incorporated into the aggravated felony definition (besides the generic offenses such as murder and rape) are strictly federal, some mode of comparing state crimes to those federal crimes is necessary. But analogizing makes little sense when dealing with a conviction for a federal offense, like § 844(a), that is specifically incorporated into the aggravated felony definition. Since those federal statutes are specifically referenced in the aggravated felony definition, there is no need to compare anything.
We need not pursue the matter any further. The hypothetical the petitioners pose implicates other concerns not present in a case, such as this one, where the main question revolves around analogizing a state offense to a federal offense specifically incorporated into the aggravated felony definition.
Finding none of the petitioners’ arguments persuasive, we conclude that the rule of Pacheco I does apply, and that the Board and DHS did not err in finding that the petitioners were statutorily ineligible for cancellation of removal on the basis of their having been convicted of an aggravated felony.
III.
Pacheco-Diaz,
Notes
. Illinois law requires that the defendant be given notice of the state’s intention to seek such an enhancement in the charge. 725 ILCS 5/111 — 3(c).
. Pacheco-Diaz had been convicted of reentering the United States after previously having been deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Pacheco I,
. Judge Rovner dissented in Pacheco II and, citing the majority of the Board’s decision in
. See Brief of Defendant-Appellant at 27-29, United States v. Pacheco-Diaz, No. 05-2264 (7th Cir. May 8, 2006); Reply Brief of Defendant-Appellant at 2-6, United States v. Pacheco-Diaz, No. 05-2264 (7th Cir. Sept. 22, 2006).
. "Analogous” is the term that was used by the Supreme Court for determining whether a state offense, when compared to a federal offense listed in § 101(a)(43) of the INA, qualifies as an aggravated felony. Lopez,
. See 720 ILCS 570/408(a).
. In Shepard v. United States,
. After this casе was briefed and argued, the Sixth Circuit decided Rashid v. Mukasey,
. The Third Circuit’s concern also stemmed from a desire — echoed by the dissent, see infra at 877 to assure that defendants were not found to be aggravated felons on the basis of constitutionally invalid prior convictions. See Steele,
. Indeed, the statute explicitly states that the existence or validity of a prior conviction, if challenged, is to be determined by the court, not a jury. 21 U.S.C. § 851(c) (“The court shall hold a hearing to determine any issues raised.... The hearing shall be before the court without a jury.... ”).
Dissenting Opinion
dissenting.
The three petitioners in this case all have criminal records that include two or more misdemeanor convictions for simple possession of an illegal drug. None has a felony conviction. The distinction between felony convictions and misdemeаnor convictions is critical to non-citizens who are subject to removal from this country. (It is also of great import to those being considered for certain sentencing enhancements under the Sentencing Guidelines, but this is a topic for another time.) Ordinarily persons subject to removal may petition the United States Attorney General and ask that he use his discretion to cancel a removal order. 8 U.S.C. § 1229b(a). The Attorney General, however, has no discretion to cancel the removal of a person who has been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). The battle over what constitutes an aggravated felony, therefore, recurs with some frequency and fervor in immigration cases. The answer may mean the difference between the possibility of staying in this country or leaving behind family, children, and the homes the petitioners may have known their whole lives. Florencio Victor Manuel Jimenez-Mateo has lived in this country for approximately forty-two of his fifty-six years. He has been a lawful permanent resident since 1971. If deported, he will be leaving behind his job, his two United States citizen children and the country he has called home since his eаrly teens. Julio Cesar Calderon has lived in this country for twenty of his twenty-eight years. He has two United States citizen children who reside here. Omar Cende-jas-Fernandez is twenty-five years old and has lived in this country legally since 1992. They have each been convicted of two (and in one case three) misdemeanor crimes. Whether the law requires us to consider these men’s multiple convictions for misdemeanor drug crimes as felonies for purposes of removal proceedings is critical to them, as it will be to many others.
The answer lies buried in a maze of cross-referenced immigration and criminal statutes. Because the majority has expertly set forth each of the statutes, I need only trace through them in a cursory fashion. The Immigration and Nationality Act (INA) defines “aggravated felony” with a list of crimes that includes drug trafficking. 8 U.S.C. § 1101(a)(43)(B). It also notes that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of state or federal law.” Id. at § 1101(a)(43). The INA then points readers to the criminal code (specifically 18 U.S.C. § 924(c)) for a definition of a drug trafficking crime.
Some courts, including our own, have described the Supreme Court’s approach in Lopez as the “hypothetical federal felony approach.” See, e.g., Escobar Barraza v. Mukasey,
The additional parameters needed to constrain the hypothetical federal felony come from the categorical approach which requires that, when determining which state crimes Congress intended to treat as aggravated felonies for the purposes of the INA, the court must look only to the elements of the state offense in question (and, when necessary to the charging document) to determine whether the offense corresponds to one of the crimes described as an aggravated felony under the INA. Gat-tem v. Gonzales,
The majority states that a strict categorical approach does not settle the matter in this case, but application of Lopez does. Ante at 869. This implies, however, that Lopez does not require the use of the categorical approach. In fact, Lopez demands that the categorical approach and the hypothetical federal felony be applied together. Lopez specifically instructs that, when deciding if a state offense constitutes a felony under the CSA, a tribunal must look at the conduct proscribed by the state offense. Lopez,
This amalgam of the hypothetical federal felony and categorical approaches means that immigration courts may not independently assess a defendant’s conduct to determine whether such conduct would warrant a federal felony conviction, if, for example, the government had sufficient evidence to charge the defendant, if the defendant had not pled to lesser charges, if the critical evidence had not been suppressed, if a jury had found sufficient evidence of guilt, if all appeals had been unsuccessful, or if the government had opted to charge the defendant as a recidivist. Lopez constrains our hypothetical “what-ifing” to consideration of the conduct proscribed in the offense of conviction, and does not allow us to consider whether the defendant engaged in some other conduct that would have been a federal felony if a long chain of possibilities (or even one) had come to fruition. Due to prosecutorial decision making, limited resources, legal strategy, and other factors, state prosecutors often charge and convict defendants of offenses that significantly under-represent the actual conduct of the defendant. It is true that in this way, state prosecutorial decisions will affect the Department of Homeland Security’s (DHS’s) ability to remove an alien pursuant to federal immigration law. DHS, however, cannot skip the inconvenient and cumbersome hurdles imposed by criminal procedure and base decisions on convictions a state court hypothetically could have secured. When we begin to compare “an offense a defendant could have been charged with in state court with an offense the defendant could have been charged with in federal court,” we have reached “one too many levеls of hypothetical application.” Pacheco-Diaz II,
In fact, Congress recognized the inherent danger of relying on prior convictions to turn a simple misdemeanor drug offense into a recidivist felony when it drafted § 844 and § 851 of the criminal code. Under 21 U.S.C. § 851(a)(1), before the government may rely upon a prior conviction for sentencing purposes, it must file with the court, and serve on defense counsel an information revealing the previous convictions upon which it will rely. Id. The court must then give the defendant an opportunity to challenge the prior conviction and, if the defendant denies the allegations or validity of the prior conviction, hold a hearing in which the government must prove the validity or existence of the prior conviction beyond a reasonable doubt. Id. at (c)(1).
Framed another way, the majority’s certain conclusion that the petitioners would have been subject to an increased penalty had they been charged in federal court is incorrect. The majority states:
While the state of Illinois conceivably could have enhanced the petitioners’ state sentences under the Illinois provision similar to § 844(a), that is beside the point. The question is whether the petitioners would have been subject to the increased penalty for having committed a prior drug offense had they been charged in federal court. As none of the petitioners disputes the existence of their prior convictions, the answer to that inquiry here must be “yes”; the petitioners’ most recent state possession offenses are therefore properly classified as aggravated felonies.
Ante at 871 (emphasis in original) (footnote omitted). The petitioners, however, would have been subject to the increased penalty only if they had been charged as repeat offenders under 21 U.S.C. § 851. And that is a big “if.” After all, they were not charged as repeat offenders in state court. This is the “one too many levels of hypothetical” with which we were concerned in Pacheco-Diaz. See Pacheco-Diaz II,
The requirements of § 851(a) are not without good reason. As the Sixth Circuit noted, “many misdemeanor or lesser convictions are processed under questionable circumstances and may be found invalid if
One more scenario adds weight to this conclusion. If the majority’s contrary theory is correct, then a federal defendant who has been convicted of two separate federal misdemeanor possession crimеs could be deemed an aggravated felon despite the government’s failure to comply with the absolute requirements of 21 U.S.C. § 851. But we know in no uncertain terms that the government may not engage the recidivist portion of § 851 without meeting all of the requirements of that section. LaBonte,
This is not to say that a state recidivist law must mirror 21 U.S.C. § 851 precisely before a state recidivist can be labeled a felon pursuant to 21 U.S.C. § 844(a). One might imagine that as long as a defendant has some form of notice of and opportunity to challenge the prior conviction, then the state offense would qualify as a conviction punishable under the CSA and thus meet
The majority hangs its hat on our recent decision in United States v. Pacheco-Diaz,
Requiring immigration courts to look at the conduct proscribed by the offense of conviction does not mean that those courts and the reviewing federal courts are beholden to the manner in which a state court
In sum, by the command of Lopez and the categorical approach to federal/state offense comparison, we are obligated to look only at the offense of conviction and the conduct described therein. True, as the majority points out, there are limited situations in which we may peek behind the face of the conviction, to the charging documents, Gattem,
. A person may not challenge the validity of a prior conviction that is more than five years old. 21 U.S.C. § 851(e). One of the three petitioners here, Jimenez-Mateo, would have been barred from challenging the validity of his first possession offense. Presumably, however, he was still permitted to deny an allegation of the information of a prior conviction as indicated in § 851(c)(1). Furthermore, the notice requirements of 21 U.S.C. § 851(a) would still have applied.
. Illinois does have a law that provides for a sentencing enhancement for recidivist possession (720 ILCS 570/408(a)) and requires that the state give the defendant notice of the state's intention to seek the enhancement. 725 ILCS 5/111 — 3(c).
. The majority also makes much of the fact that recidivism is a penalty provision and not an element of the offense of conviction. Ante at 870 (citing Almendarez-Torres,