Lead Opinion
Affirmеd by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON joined. Judge DIANA GRIBBON MOTZ wrote an opinion concurring in the judgment.
OPINION
Fernando Frederick Wilson appeals his conviction under 8 U.S.C. §§ 1326(a) and (b)(2) for unlawful reentry of a deported alien. On appeal, he asserts that the district court erred by failing to grant his motion to dismiss. Wilson moved to dismiss on the ground that a defect in his original deportation proceedings, specifi
I.
The undisputed facts are as follows. Wilson, a native and citizen of Panama, entered the United States without immigration inspection in early 1977 and promptly joined the United States Marine Corps. In 1982, his immigration status was adjusted to that of a lawful permanent resident. On September 3, 1986, while still serving in the military, Wilson was indicted in Virginia for possession with intent to distribute cocaine. He pled guilty to the lesser included offense of felony possession of cocaine. Two years later, Wilson testеd positive for drugs and was given a bad conduct discharge from the Marine Corps.
On November 22, 1994, the Immigration and Naturalization Service (“INS”) ordered Wilson to show cause why it should not deport him for having been convicted of a drug offense. At a hearing before an immigration judge (“IJ”), Wilson conceded his deportability but, as a lawful permanent resident, requested that the IJ grant him a waiver of deportation pursuant to section 212(c) of the Immigration and Naturalization Act (“INA”). See 8 U.S.C. § 1182(c) (1994 & Supp). Section 212(c) granted the Attorney General broad discretion to admit aliens who would otherwise be excludable, and had been interpreted by the BIA as authorizing any permanent resident alien with seven consecutive years of lawful domicile, such as Wilson, to apply for a discretionary waiver of deportation.
Although charged prior to their enactment, Wilson’s case came before the IJ following enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), enacted on April 24, 1996, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), enacted on September 30, 1996, 110 Stat. 3009-546, which together comprehensively amended the INA, 66 Stat. 163, as amended 8 U.S.C. § 1101 et seq. Of particular relevance to this appeal, AEDPA section 440(d) amended INA section 212(c) to preclude section 212(c) discretionary relief for aliens convicted of certain enumerated criminal offenses, including drug offenses. The Attorney General subsequently interpreted the provisions of AEDPA and IIRIRA as applying retroactively. See In re Soriano, Interim Decision 3289,
However, the matter was still unsettled when the IJ adjudicated Wilson’s case. On July 19, 1996, the IJ found Wilson deportable. As to Wilson’s section 212(c) waiver application, the IJ chose to apply section 212(c) as the law stood when Wilson was charged in 1994, and, accordingly, considered the merits of Wilson’s section 212(c) application. The IJ denied Wilson’s section 212(c) application, ruling that the unfavorable equities outweighed the favorable equities, and ordered that Wilson be deported to Panama. J.A. 95-96.
Wilson appealed the section 212(c) denial to the BIA. The BIA sustained the
Wilson was deported on July 2, 1998. He was given written warning that if he returned to the United States without permission he was subject to prosecution for unlawful reentry under 8 U.S.C. § 1326. After Wilson’s deportation, the Supreme Court ruled in INS v. St. Cyr,
Sometime in 2000, Wilson reentered the United States without permission. He was arrested by the INS on July 20, 2001, and indicted for unlawful reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He moved to dismiss on the ground that his original deportation order was invalid because the BIA should have considered his section 212(c) application. The district court denied Wilson’s motion to dismiss, reasoning that, even assuming Wilson could show a violation of his due process rights, because he would have had at most a fifty-fifty chance of receiving 212(c) relief from the BIA, he could not show actual prejudice. United States v. Wilson, No. 2:01cr162, Mem. Order at 7 (E.D.Va. Nov. 6, 2001) [hereinafter the “Order ”]. Wilson was subsequently found guilty under section 1326(a) and (b)(2). At sentencing, the district court calculated Wilson’s base offense level as 8 and, over Wilson’s objection, enhanced his offense level to 16 on the ground that his 1986 conviction for felony possession of cocaine amounted to an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C). The district court sentenced Wilson to 18 months’ imprisonment, a special assessment of $100.00, and a 2 year period of supervised release. Wilson appealed.
II.
On appeal, Wilson reasserts his argument that his original deportation order is invalid because he was impermissibly denied the opportunity to apply for a section 212(c) waiver beforе the BIA. Because it is defective, Wilson contends, that order cannot serve as the basis for a conviction under section 1326.
Under 8 U.S.C. § 1326(d), an alien may collaterally attack the validity of his deportation order when prosecuted for illegal reentry under section 1326(a). However, section 1326(d) contains three conditions that a defendant must satisfy before he will be allowed to mount a collateral attack. The alien must demonstrate that:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the оrder;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d). These requirements are listed in the conjunctive, so a defendant must satisfy all three in order to prevail. See United States v. Fernandez-Antonia,
This court reviews Wilson’s challenge to his conviction de novo. See United States v. Hernandez-Avalos,
A.
Wilson’s collateral attack fails because he cannot show that a defect in the underlying deportation order rendered it fundamentally unfair. See 8 U.S.C. § 1326(d)(3). In order to establish fundamental unfairness, a defendant must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. See, e.g., United States v. Zarate-Martinez,
While the district court assumed that Wilson could show a due process violation, in fact he cannot. In order to succeed on a due process claim, Wilson “must first establish that he had a property or liberty interest at stake.” Smith v. Ashcroft,
Wilson’s claim that his original deportation proceedings were fundamentally unfair is effectively the same as that advanced by the habeas pеtitioner in Smith. And, under Smith, even if Wilson was entitled to have the BIA consider his section 212(c) application, he cannot show that the failure of the BIA to do so denied him due process because he had no due process right in the section 212(c) relief.
Although Wilson’s claim could be denied solely on the basis of his failure to identify a due process violation, Wilson has failed to show prejudice, even assuming such a violation. In the district court, counsel for Wilson speculated that, if Wilson had been able to get BIA review of the IJ’s section 212(c) ruling, he would have had a fifty-fifty chance of having the IJ’s decision overturned. J.A. 65-66. The district court found that a fifty-fifty chance was not sufficient to establish prejudice because it did not “show that but for the alleged violation of his rights by the BIA ... he would not have been deported.” Order at 7.
The district court correctly found that Wilson failed to establish prejudice. In order to demonstrate prejudice, a defendant must show “a reasonable likelihood that but for the errors complained of, the defendant would not have been deported.” Encarnacion-Galvez,
Even a cursory review of the equities in Wilson’s case demonstrates that his actual chance of obtaining a reversal at the BIA level were significantly lower than the fifty-fifty figure suggested by his counsel. “[W]hen an alien has a record of serious criminal activity, he must demonstrate ‘unusual or outstanding’ equities in order to be eligible for a favorable exercise of discretion under section 212(c).” Gandarillas-Zambrana v. Board of Immigration Appeals,
III.
Wilson also challenges the enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(C). The guideline provides for an 8 level enhancement for illegal reentry when the defendant was previously deported after “a conviction for an aggra
The issue presented is whеther a state conviction for possession of an unknown quantity of cocaine can ultimately qualify as an aggravated felony under section 2L1.2 if it is a felony under the applicable state law but is punishable only as a misdemeanor under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. This is a question of first impression in this circuit. The district court concluded that simple possession of drugs, if a felony under state law, can constitute an aggravated felony. J.A. 116-17. We agree, and thereby join the seven other circuits that have addressed the issue. See United States v. Ibarra-Galindo,
Our analysis begins with the guideline itself. The term “aggravated felony” is not defined in the text of section 2L1.2. However, the application note for that subsection states that “ ‘aggravated felony’ has the meaning given that term in 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, Application Note 2. Section 1101(a)(43) of Title 8 provides that “[t]he term ‘aggravated felony’ means — (B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 92b(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B) (emphasis added). Section 924(c)(2) of Title 18, in turn, states that
the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 еt seq.).
18 U.S.C. § 924(c)(2) (emphasis added).
The next step of the analysis is to determine what the elements of a drug trafficking crime are under section 924(c)(2). As it is structured, section 924(c)(2) is plainly comprised of two separate elements. It speaks first of “any felony” and then goes on to list three separate statutes under which the felony may be punishable. Thus, the two elements of section 924(c)(2) are (1) any felony, that is (2) punishable under the CSA (or one of the other two enumerated statutes). The other circuits have reached the same interpretive conclusion. See Ibarra-Galindo,
Turning to the first element — any felony — this court must consider whether Wilson’s state conviction for possession of cocaine amounts to a felony within the meaning of section 924(c)(2). Simple possession of an unknown quantity of cocaine is punished by the CSA as a misdemeanor. See 21 U.S.C. § 844(a) (providing for a term of imprisonment of not more than 1 year). But the inquiry does not stop there. The CSA defines the term “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13) (emphasis added). That definition, which is clear and unambiguous, encompasses Wilson’s Virginia conviction because simple possession of a controlled substance is a felony under Virginia law. See Va.Code § 18.2-
The CSA definition of felony, while not itself a part of section 924(c)(2), is nevertheless relevant as an interpretive matter. Section 924(c)(2) does not contain any internal limitation on its broad reference to “any felony” other than that such felonies be punishable under one of the enumerated statutes. It is therefore reasonable to interpret those words as including within their scope felonies as defined by the very acts that the statute references. For the foregoing reasons it is clear
Wilson also satisfies the second element of section 924(c)(2). Simple possession of an unknown quantity of cocaine is punishable under the CSA. See 21 U.S.C. § 844(a). Thus, because Wilson’s cоnviction for felony possession of cocaine satisfies both elements of section 924(c)(2) and thereby constitutes a drug trafficking crime, he has committed an aggravated felony as that term is defined in Application Note 2 of section 2L1.2. The district court therefore correctly applied the 8-level enhancement.
Wilson would have us interpret the statute differently. He contends that when 18 U.S.C. § 924(c)(2) defines “drug trafficking crime” as “any felony punishable under the” CSA, it means that the offense must be punishable as a felony by the CSA, not simply punishable under the CSA. We need look no further than the text of section 924(c)(2) to refute Wilson’s argument. The statute does not say that the offense must be punishable as a felony by the CSA. Rather, the statute merely says that the offense must be a felony, punishable thereunder. See Restrepo-Aguilar,
Wilson also argues that our decision in United States v. Garnett,
Wilson’s reliance upon Garnett is unavailing. In Garnett, there was no state conviction for felony possession. A careful reading of Garnett reveals that when Gar-nett contrasted misdemeanor drug offenses with felony drug offenses, it was
CONCLUSION
Wilson’s collateral attack on his underlying deportation proceedings fails for the fundamental reason that nothing in those deportation proceedings deprived him of due process or otherwise prejudiced his attempts to avoid deportation. His аttack on his sentence enhancement also fails because we conclude that a state conviction for felony possession of cocaine can qualify as a drug trafficking crime and thereby render a defendant eligible for an enhancement under U.S.S.G. § 2L1.2 for the commission of an aggravated felony. As Wilson alleges no other defects in his underlying conviction or sentence, the district court’s judgment is affirmed.
AFFIRMED.
Notes
. In Smith, the court also considered Smith’s claim that "without regard to liberty or property interests, his due process rights were violated in 1998 by a lack of mеaningful review in a judicial forum.” Id. at 430. Smith argued that United States v. Mendoza-Lopez,
. In St. Cyr, the Supreme Court did note that many aliens have sought section 212(c) relief and "a substantial percentage of their applications for § 212(c) relief have been granted.” St. Cyr,
. Our decision that Wilson has shown neither a due process violation nor prejudice renders it unnecessary to consider whether Wilson has met section 1326(d)(2)'s requirement of the denial of an opportunity for judicial review. By the same token, we need not consider the government’s argument that St. Cyr’s holding is inapplicable to Wilson’s original deportation proceedings because the proceedings became final three years before St. Cyr was decided.
. This definition of felony is also consistent with the definition used in the guideline at issue. Application Note 1 of section 2L1.2 defines "felony” as "any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2, Application Note l(B)(iv) (emphasis added).
. In a last ditch effort to avoid the enhancement, Wilson invokes the rule of lenity. However, we conclude, as have the other circuits that have considered the issue, that any ambiguity in the statute is minimal at best and thus insufficient to render application of the rule of lenity appropriate. See, e.g., Johnson v. United States,
. In response to this ruling, Congress amended § 1326 to permit an alien prosecuted for illegal reentry after deportation, who has exhausted his administrative remedies, to collaterally attack the validity of the deportation order as violative of his due process rights. See 8 U.S.C.A. § 1326(d) (West 1999); 140 Cong. Rec. S 14544 (daily ed. Oct. 6, 1994) (statement of Sen. Smith) (stating that the language of § 1326(d) “which is taken directly from the U.S. Supreme Court case of United States v. Mendoza-Lopez,
Concurrence Opinion
concurring in the judgment:
I concur in the judgment, but write separately to clarify that the majority’s discussion in Section II. A. should not be misread to permit government conduct that has long been held unconstitutional.
More than fifteen years ago, in United States v. Mendoza-Lopez,
Obviously no lower federal court can overrule the Supreme Court, and I do not believe the majority intends to do that, but I fear that its holding in Section II. A. might be misinterpreted as attempting to do so. In that section, the majority holds Wilson cannot collaterally attack his deportation order because he had no due process liberty or property interest in the § 212(c) discretionary waiver that should have been available at the deportation proceeding. This may be true in Wilson’s case, but if so, it is not the discretionary nature of the relief available at the deportation proceeding that defeats his claim.
Rather, after Mendoza-Lopez, I take it to be quite clear that, regardless of the discretionary nature of relief available at a deportаtion proceeding, if a defendant’s initial deportation, for example, had been ordered by a biased judge, relying on the knowing use of perjured testimony, or garnered under threat of mob violence, the defendant could collaterally attack this deportation in any subsequent prosecution in which deportation is an element of the crime. Cf. Mendoza-Lopez,
The majority is, of course, correct, that “[i]n order to succeed on a due process claim,” a defendant “ ‘must first establish that he had a property or liberty interest at stake.’ ” Ante at 509 (quoting Smith v. Ashcroft,
The majority states that
Smith’s holding that section 212(c) does not give rise to a due process right ... requires the rejection of Wilson’s collateral attack pursuant to section 1326(d)(3) regardless of whether he is entitled to heightened judicial review requirements by virtue of being subject to criminal prosecution.
Ante at 510, n. 1.
This is true when a defendant’s only claim is that he was deprived of the opportunity for judicial review. Deprivation of judicial review does not equate to a fundamentally unfair administrative hearing. Rather, as the majority correctly notes, fundamental fairness and judicial review are separate elements under Mendoza-Lopez and § 1326(d). See id.
However, when a criminal defendant seeks to collaterally attack his deportation order based on the claim made in Smith—
In this case, Wilson’s contention that the Board of Immigration Appeals applied an incorrect legal interpretation arguably states a claim of fundamental unfairness, albeit one of questionable merit. However, because Wilson has failed to demonstrate any prejudice, we need not reach that claim. See ante at 510-12.
. The Smith court itself recognized the limits of its analysis in light of Mendoza-Lopez and specifically distinguished the case before it, involving only an alien's deportation, from cases such as Wilson's, involving only an alien's prosecution for illegal re-entry after deportation. The court in Smith explained:
In Mendoza-Lopez, the question before the court was whether a defendant who was being criminally prosecuted for illegally reentering after lawful deportation could collaterally attack the prior deportation order. The Court concluded that since lawful deportation was a material element of the statutory offense, due process required, in this limited situation, a pretrial review of whether the prior deportation order was lawful. [Mendoza-Lopez., 481 U.S.] at 837-38,107 S.Ct. 2148 ....
Thus, while the Mendoza-Lopez Court admittedly espoused judicial review of administrative actions, the Court reasoned that review is essential when the outcome of the administrative proceeding is used as an element for criminal conviction. Id. at 839,
Smith,