United States v. German Palacios-Suarez

that the officers’ demonstrates Welsh entry Cummings’ into

forced warrantless unreasonable, presumptively

home was exigency

and the decisions Court’s clearly that and Santana show

Warden objectively Vaughn had no

Sherman believing basis for their

reasonable entry Cummings’ into home

warrantless supported by exigency pur-

was of hot fleeing Maj. Op. of a felon.” at 687

suit short, by pleading no contest to the charge, Cummings

assault conceded that unlawfully, justification. without

he acted by

A conclusion a federal court that the illegal necessarily

officers’ conduct was un- judgment

dermines that of conviction.

Furthermore, Cummings because could illegal

have raised the officers’ search and -arguably

seizure as a defense as a matter certainly anc law as matter of fact-the

federal court action is barred Heck.

Unfortunately, today the Court has al- Cummings

lowed to make an run end Heck, ultimately, underly-

around

ing proceeding state criminal Heck seeks protect. reasons,

For these I DISSENT. America,

UNITED STATES of

Plaintiff-Appellee, PALACIOS-SUAREZ,

German

Defendant-Appellant.

No. 04-4187. Appeals,

United States Court of

Sixth Circuit.

Argued: April 2005. July

Decided and Filed: Richard

ARGUED: W. Smith-Mona- han, Defender, Office of the Federal Public Cincinnati, Ohio, Appellant. for Anne L. Porter, Attorney, Assistant United States Cincinnati, Ohio, Appellee. for ON Smith-Monahan, BRIEF: Richard W. Of- Defender, fice of the Federal Public Cin- cinnati, Ohio, Appellant. Anne L. Porter, Assistant Attorney, Cincinnati, Ohio, for Appellee. MOORE, Before: NELSON and Circuit RESTANI, Judges; Judge.* MOORE, J., opinion delivered the court, RESTANI, J., joined. in which NELSON, 701-02), (p. J. delivered a separate concurring opinion.

OPINION MOORE, KAREN NELSON Circuit Judge. case, Defendant-Appellant Ger- (“Palacios-Suarez”)

man Palacios-Suarez * Restani, Judge, sitting by designation. The Honorable Jane A. Chief Trade, United States Court of International imposed by

appeals degree his sentence the dis- the first in the Commonwealth of pled guilty illegally trict court after he Kentucky. Ky.Rev.Stat. Ann. reentering having 218A.1415G). the United States after previously been removed. See 8 U.S.C. The PSR concluded that the convic- two 1326(a). challenges Palacios-Suarez his qualified “aggravated tions felonies” First, grounds. argues sentence on two he 1326(b) pursuant § to 8 U.S.C. and that court improperly the district conclud- 2L1.2(b)(l)(C) thereby U.S.S.G. result- ed prior felony drug that his state-law ing ten-year in a statutory- increase in the “aggra- convictions should be considered penalty maximum an eight-level and en- vated felonies” and therefore enhance his hancement under the Sentencing Guide- 1326(b)(2) pursuant sentence to 8 U.S.C. 1326(b); lines. 8 U.S.C. U.S. Sentenc- (“U.S.S.G.”) Sentencing and U.S. Guideline ing Guidelines Manual 1.2(b)(1)(C). Second, § 2L Palacios-Sua- 2L1.2(b)(l)(C)(2003). conceding While rez argues his case should be remand- validity prior of the state-law convic- ed to the district court resentencing for in tions, challenged Palacios-Suarez light Supreme of the Court’s decision in they conclusion that “aggravat- PSR’s are — Booker, -, United States v. U.S. ed felonies” as defined the federal stat- (2005). 738, 125 S.Ct. 160 L.Ed.2d 621 ute and the Sentencing Guidelines. The review, Upon we conclude that Palacios- rejected district court Palacios-Suarez’s prior felony Suarez’s convictions are however, argument, and sentenced him to felonies,” “aggravated not and therefore twenty-four incarceration, months of three we VACATE the district court’s sentence years release, supervised fine, a $500.00 and REMAND the case for resentencing a special and assessment of Pa- $100.00. opinion consistent with this as well as the appeals lacios-Suarez from that sentence. Supreme opinion Court’s in Booker.

I. BACKGROUND II. ANALYSIS July On Palacios-Suarez was Interpretation A. Aggravated- removed from the following Felony Enhancement two state-law convictions drug posses- for We review the district in court’s Subsequently, sion. he returned to the terpretation of a federal statute and the United States and was arrested in Cler- Sentencing Guidelines de novo. United County, February mont Ohio. On Quintero, States v. 157 F.3d pleaded guilty Palacios-Suarez to illegally (6th Cir.1998); Gibson, reentering the having United States after (6th Cir.2005) 409 F.3d (stating previously been removed in violation of 8 Booker). 1326(a). standard of review after Wheth A pre-sentence report (“PSR”) conviction, state-felony er a which was filed with the district court felony law, would not be a which under federal prior detailed the two state-law con- could nevertheless drug possession, “aggravat victions for constitute both of which felony” ed are as defined in applicable considered felonies under 8 U.S.C. impres state laws. is an issue of first Palacios-Suarez’s first in sion in April possession was this court. See Garcia-Echaverria States, in cocaine the State of in v. United Ohio violation 2925.11(A). Cir.2004) of Ohio Rev.Code Ann. (deciding Two without case reach later, issue). July months ing he was convict- The courts of appeals possession ed of of a controlled substance which have addressed the issue have conflicting Upon seq.), results. review et Import reached Controlled Substances (21 statutory language legisla- Export and the and Act seq.), U.S.C. 951 et or history, Drug tive we hold that a state the Maritime Law Enforcement Act (46 not U.S.C.App.1901 conviction which does contain a traf- et seq.).” 18 U.S.C. ficking component must be Courts for it competing law order two interpreta- “aggravated felony” phrase “any felony constitute an tions of the Immigration Nationality Act under” enumerated statutes (“INA”). it is the interpretation of subject which is the of Palac- what the Deciphering term appeal. ios-Suarez’s felony” requires means the INA us to “navigate confusing Initially, a rather maze of statu- Immigration the Board of Ap- (the “BIA”) tory cross-references.” v. peals United States interpreted (9th 101(a)(43)(B) 900, Robles-Rodriguez, § 903 281 of the INA to mean that “a Cir.2002). The INA states that an drug qualify alien state conviction could ‘an as (1) previously aggravated who has been removed from the felony’ ways: in one of two “subsequent to a if felony United States conviction the state conviction had a ‘traf- (which an aggravated felony” ficking for commission of element’ argued is not (2) here); may imprisoned up twenty years be or if the conviction would be illegally punishable if found to have reentered the as a under one of the 1326(b)(2). § country. 8 U.S.C. Accord drug enumerated federal statutes” and ingly, Sentencing the Guidelines increase therefore a “drug trafficking would be 924(c)(2). by eight § the offense level for the crime crime” as defined under Liao (6th Rabbett, 389, Cir.2005) levels where the defendant has been con v. 398 F.3d 391 Davis, felony.” 536, “an aggravated (citing victed of U.S. In re 20 I. & N. Dec. (BIA 1992)). Sentencing Guidelines Manual 541-42 The interpre- BIA’s 2L1.2(b)(1)(C)(2003). commentary “hypo- The tation of is known the as explains “ag felony” “hypotheti- to the section the term thetical federal or the gravated felony” “meaning felony” approach phrase has the same cal and “reads the 101(a)(43) given ‘any that term in of felony punishable section the under the CSA’ to (8 1101(a)(43)).” any mean [INA] U.S.C. U.S. Sen conviction as a felo- 2L1.2, Thus, tencing Guidelines Manual cmt. n. ny under the CSA.” Id. “a state (2003). 3(A) 101(a)(43) (not drug possession Section relevant in- part “il “aggravated felony” volving any drug trafficking) defines element of trafficking licit in a controlled substance that would be federal (as 21), ‘ag- defined in section 802 of Title misdemeanor would not constitute an (as 1101(a)(43)(B).” including drug trafficking gravated felony’ crime de 924(c) 18).” adopted hypo- in section Title 8 Id. at 391-92. The BIA the fined of felony approach thetical federal in all of its 924(c) 18, turn, immigration except Section of Title defines cases in circuits which “drug trafficking the term contrary crime” as decided to the on the issue. In (BIA L-G-, 89, felony punishable under the Re 21 I. & Dec. 102 Controlled N. (“CSA”) (21 1995).1 Second, Third, Act Ninth [ Substances U.S.C. 801 The Cir- ] Following rejection “hypothetical holding years ago. BIA reversed this a few Yanez-Garcia, 390, felony” approach by majority re 23 I. & N. Dec. 396 of context, (BIA 2002). was based on circuit courts in the The BIA’s decision 696 expressly adopted ny” the BIA’s as used in 2L1.2.

cuits have U.S.S.G. See Unit (4th Wilson, hypothetical felony approach 506, ed States v. 316 F.3d 513 INS, denied, Cir.), 1025, immigration Aguirre context. See v. cert. 538 U.S. 123 S.Ct. (2d 315, Cir.1996); 1959, (2003); 79 F.3d 317-18 Gerbier 155 L.Ed.2d 871 United (3d Holmes, 297, Cir.2002); Pornes-Garcia, 142, v. 280 F.3d 311 v. States 171 F.3d 148 (2d Cir.), denied, Ashcroft, 880, 382 F.3d Cazarez-Gutierrez cert. 528 U.S. 120 (9th Cir.2004). 905, 191, (1999); 919 S.Ct. 145 L.Ed.2d 161 United Simon, (11th States v. 168 F.3d 1272 contrast, By interpretation the second Cir.), denied, cert. 528 120 U.S. S.Ct. to as “guideline referred (1999); 145 L.Ed.2d 97 approach” because it has been (5th v. Hinojosa-Lopez, 130 F.3d specifically in the context of U.S.S.G. Cir.1997); Briones-Mata, disjunctive takes a view Cir.1997); 116 F.3d United phrase “any felony punishable under the Cabrera-Sosa, States v. 81 F.3d adopting “guideline CSA.” courts (10th Cir.), denied, cert. 519 U.S. approach” read the to mean that a (1996); S.Ct. 136 L.Ed.2d 151 United conviction is a trafficking Restrepo-Aguilar, States v. crime” and therefore an felo- (1st Cir.1996). (1) ny” if the conviction is a (2) either state or law and the The Ninth adopted Circuit has a similar underlying conduct the conviction pun- approach is to interpreting “aggra- the term (or ishable under the CSA the other two felony” vated within the context of here). not at 2L1.2, statutes issue Garcia- U.S.S.G. but has added the fur- Echaverria, 376 at 512. Courts requirement regardless ther of how adopting approach rely this on conviction, the fact the state classifies the the of- itself, that within the CSA the term “felo fense can be an felony” for ny” is defined as Federal or purposes State of only if it is by applicable “punishable classified Federal or by more than year’s one im- felony.” State law a prisonment as 21 U.S.C. under applicable state or fed- 802(13). interpretation, “Under this a eral law.” Robles-Rodriguez, 281 F.3d at drug punishable offense that is a felony 904. The court noted that within the CSA itself, under state law could be considered an “felony drug the term is offense” ‘aggravated felony,’ purposes apply for of defined as “an punishable offense that is ing the enhancement by contained imprisonment U.S.S.G. year more than one if even the conduct any would have law of the United States or of a only 802(44). been as a misdemeanor State.” 21 Similarly, Garcia-Echaverria, under federal law.” general federal offenses in under Title 18 majority 376 F.3d at 512. A clear of our are classified as felonies if the maxi- sister circuits adopted approach have this imprisonment mum term of greater is than interpret phrase “aggravated 3559(a)(5). year. felo- one 18 U.S.C. "overriding obligation its to follow the au- spoken contrary and Ninth which to the thoritative decisions of the adopted original federal circuit and have "hypo- the BIA's appeals regarding interpretation courts of felony” interpretation. thetical federal The

provision of federal prior criminal law that is refer- holding BIA’s decision to reverse its Immigration enced in the Nationality obligation based on its to follow the authorita- adopted "guideline Act.” Id. The BIA thus tive decisions of our sister circuit courts does approach” immigration for all of its analysis statutory cases not alter our of the BIA's Second, Third, except in interpretation. circuits such as the (2001). light that in of Con- We with the Fifth explained the court Circuit’s using gress’s “long-established practice reasoning adopt separate and decline to ‘felony’ pun- the term to describe offenses interpretations of phrase the same for the by year’s imprison- more than one ishable immigration cases. ment,” adopt it refused alternative Having preliminary resolved that mat- to the approach “absent a clear indication ter, statutory we next turn to the language contrary.” Robles-Rodriguez, 281 F.3d at itself. We Accordingly, Ninth Circuit held have stated that “when interpreting stat- drug-possession that an Arizona utes, language [t]he of the statute is the Ari- which is classified as a point for starting interpretation, and it law, zona but which does not result ending point should also be the if plain incarceration, qualify did not meaning of that language is clear.” Unit trafficking “aggra- crime” and therefore an (6th Boucha, ed States v. felony” under the INA. Id. at 905- vated Cir.2001) (internal omitted) (al quotation adopted formulation expressly 06. We teration in original). statutory The lan reaching underlying without issue of guage at issue this case is the precise guideline approach was the whether the meaning phrase “any felony punish 924(c)(2). proper interpretation of See under” able the CSA. 18 U.S.C. Liao, (assuming guide- F.3d at 395 924(c)(2). appeals Several courts of holding that approach appropriate, line “guideline which have ap “a state conviction is not a proach” have based their decision on what law, under state even if it is labeled as they have found to be the clear such, if it is not under state law 924(c)(2). Wilson, §of 316 F.3d at imprisonment a term of of more than 512; Ibarra-Galindo, year”). one Cir.2000), F.3d 1339 cert. de Thus, case, in this we face the unre- nied, 121 531 U.S. S.Ct. 148 question determining solved of which in- (2001); Simon, L.Ed.2d 718 168 F.3d at terpretation “aggravated felony” of an 1272; Restrepo-Aguilar, 74 at F.3d begin should be used in our circuit. We stated, As Ninth the Circuit has Con “[i]f analysis by our declining to follow the gress hypothetical had intended feder [the approach outlined the and Second felony approach], al it would have most Circuits, Ninth which statutory treats the naturally ‘punishable referred to offenses §in differently for as the felonies Controlled Sub immigration purposes sentencing than for Act,’ stances but it did not.” Ibarrar-Gal enhancement under the Guidelines. See indo, 206 F.3d at 1339. As the dissent Ashcroft, Ferreira v. 1050 case, statute, in that a rare noted “[i]t (9th Cir.2004); Pornes-Garcia, 171 F.3d at however, that could not have been written stated, 147. As the Fifth fail “[w]e Circuit clearly more than it was.” Id. at 1342 validity to interpreting see the of this stat Thus, if (Canby, dissenting). J. the differently ute based on this distinction intended, “guideline approach” was Con immigration and between gress just easily the cases; is, all, could have as written it after the same words of “drug trafficking a crime” statute define phrase the same from the same statute “ ‘punishable as an offense under the Con being interpreted that is in each instance.” Hernandez-Avalos, constituting Act a ” 251 trolled Substances denied, Cir.), or felony cert. 534 under either federal state law.’ (Canby, dissenting). U.S. S.Ct. 151 L.Ed.2d 226 Id. at 1342 n. J. We Judge Canby’s reasoning opinion, the BIA concluded that reliance adopt statutory interpretation decline to a on this definition is misplaced as well. In re L-G- 211. & N. Dec. at hypothetical phrasing based on which Con- 98-99. Section 802(13) provides Instead, only definitions gress never considered. use we con- subchapter within I chapter 13 of Title felony phrase punishable clude that the “a statutory 21. The phrase at the heart of under” the CSA could be read either as an “aggravated felony” the debate is within offense as a under the 924(c)(2) of Title which has its own alternative, or in CSA the federal or “felony.” definition of the term involving conduct which is define the individual terms the Accordingly, under the CSA. “any felony punishable CSA, under the” “hypothetical felony” either the in- proper the recourse is to the definitions terpretation or “guideline approach” provided in Title 18 rather than Title 21. supported by plain could be meaning of purposes For Title is de- the statute. fined aas offense where the maxi- The courts of appeals which have punishment mum year. exceeds one “guideline approach” 3559(a)(5). ‘drug “A trafficking support statutory found for their interpre- crime’ under 18 U.S.C. is there- tation in the definitions of the term “felo- any felony fore violation of the federal ny” in the Guidelines and the CSA itself. laws, i.e., any offense under those Wilson, 512; 316 F.3d at Ibarra-Gal laws where the impris- maximum term of indo, 1339-40; Simon, 206 F.3d at 168 onment year.” authorized exceeds 1 In re 1272; Briones-Mata, F.3d at 116 F.3d at L-G-, 21 I. & N. Dec. at 94 (emphasis 309; Restrepo-Aguilar, 74 F.3d at 365. added). The Third agreed Circuit with the Specifically, both the Ninth Circuit and the interpretation BIA’s and held that “a Government its brief in this case cite crime that is punishable as a misde- commentary Sentencing Guide meanor under the Controlled Substances lines which “felony” defines the term 924(c)(2).” ‘any Act is not felony’ federal, state, or local punish Gerbier, 280 F.3d at 310. We find the by imprisonment able exceeding for a term interpretation of the BIA and the Third year.” one Sentencing U.S. Guidelines very Circuit to be at plausible. least (2003) Manual cmt. n. 2 result, As a say we cannot plain added). Reliance on this definition is mis 924(c)(2) meaning of language § the of however, placed because commentary the supports interpretation one over another. specifically states that the definition of a Accordingly, we legis- must “resort to the “felony” applies purposes “[f]or of subsec history lative to ascertain meaning the of (D).” (b)(1)(A), (B), tion Id. There Boucha, the language.” 236 F.3d at 774. fore, the “felony” definition of the term 924(c)(2) § Prior to defined the does not any bearing on the term term “drug trafficking “any crime” as felo- (b)(1)(C) “aggravated felony” in subsection ny violation involving Federal law the of §of 2L1.2. distribution, manufacture, or importation

Similarly, courts cite the definition (as sec- any of controlled substance defined in tion of the CSA which defines the term section 102 of the Controlled Substances “felony” (21 as 802)).” Federal or State § Act U.S.C. 18 U.S.C. (1982 classified applicable 924(c)(2) 1986) (em- § Federal or State Supp. & IV 802(13) added). law as a felony.” Thus, § 21 phasis U.S.C. prior the statutory added). In a well-reasoned plainly reveals that a traf- ing crime” was limited to the definition of ficking ‘drug trafficking federal Anti-Drug In the Abuse crime’ at 18 U.S.C. sought to offenses. Act of Pub.L. No. 100-690 differentiate between aliens convicted of 4181, 4360, Congress amended Stat. drug-related similar offenses on the basis form, into its present-day the subsection of whether the conviction was accom- defining “drug trafficking the term crime” plished under state or federal law.” Id. “any felony punishable under” the three later, Congress adopted Several months enumerated statutes. 18 U.S.C. the approach, BIA’s amending 924(c)(2). Congress titled the section of 1101(a)(43) by adding that the “ag- term Act which amended as a gravated felony” “applies to offenses de- of definition of traffick- “clarification in previous scribed the sentence whether (em- ing crimes.” Stat. at 4360 in violation of Federal or State law.” Im- phasis Congress never intended migration Act of Pub.L. No. 101-649 to change the amendment be substantive 501(a)(5), 104 Stat. In 5048. ex- merely the definition but rather a clari- amendment, plaining purpose stated, the Ninth As Circuit fication. Judiciary the House Committee stated: nothing in legislative history “[t]here Current law defines “aggravated felony” suggest Congress that intended this drug trafficking, to mean firearm or ex- dramatically ‘clarification’ to widen the (8 plosive device trafficking, and murder include, scope ‘drug trafficking of crime’ to 1101(a)(43)). U.S.C. Current law example, simple drug pun- possession clearly renders alien convicted of a aby ished as state.” Cazarez- drug trafficking Federal offense an ag- Gutierrez, 382 F.3d at 915. gravated felon. It has been less clear of lim- original understanding the term as drug trafficking whether a state convic- unchanged. ited federal felonies was result, brings although tion that same Accordingly, we with the Third Cir- Immigration Appeals the Board of cuit that the “interpretation (March 1990) Matter of Barrett has ‘felony punishable under the Controlled recently ruled that it does. Because the Act’ excluding Substances crimes that Committee concurs the recent deci- ‘hypothetical are not federal felonies’ is not sion of Immigration Ap- the Board of only plausible, logical but also light peals litiga- and wishes to end further 924(c)(2).” Gerbier, history § issue, tion on this section 1501 of H.R. at (and specifies drug trafficking Moreover, legislative history of 8 device trafficking) firearms/destructive 1101(a)(43) supports further aggravated felony is an whether or not “hypothetical felony” approach. the conviction occurred state or Fed- March the BIA first eral court. “hypothetical felony” approach, 101-681, (1990), H.R.Rep. pt. No. at 147 holding sufficiently that “a state conviction ” reprinted in 1990 U.S.C.C.A.N. analogous felony to a under the offense (emphasis The of the “drug enumerated federal statutes ais 924(c)(2) report clearly Congress reveals that em- trafficking § crime” under “hypothetical braced the BIA’s federal fel- aggravated felony” therefore “an under 1101(a)(43). Barrett, ony” approach regard § with to the term In re 20 I. N.& (BIA 1990) Moreover, felony.” it evi- “aggravated Dec. add- ed). BIA that Congress specifi- The concluded that “it is unrea- dent was concerned crimes, Congress, cally drug trafficking sonable to assume that which choos- CSA, provision CSA, are felonies under the treated as Palacios-Suarez’s simple drug possession rather than crimes only offenses would each be classified only qualify which would as federal misde- misdemeanors, and therefore could not be Therefore, meanors. we conclude that the considered trafficking crimes” under 1101(a)(43) § legislative history of con- 924(c)(2) § “aggravated nor un- felonies” interpretation Congress firms the did 1101(a)(43)(B). §der (not not intend for-state convictions

involving any drug trafficking) element of provide, however, Federal law does qualify “aggravated felony” as an under “commits person that if the such offense 1101(a)(43)(B) § if the offense would be prior after ... a any drug, conviction for punishable only aas federal misdemeanor narcotic, or chargeable chemical offense under the CSA. any State, under the law of has become 'sum, that,

In light we conclude final, he shall be sentenced to a term of legislative history which clarifies the am- imprisonment for ... not more than 2 biguous statutory language of 18 U.S.C. 844(a). years.” Thus, § 21 U.S.C. “hypothetical federal felo- provision, drug possession recidivist ny” approach proper is the interpretation could felony. be In order to be of an “aggravated felony” under the INA. eligible for the punishment, enhanced defendant’s second offense must occur af B. Palacios-Suarez’s Case prior ter the drug conviction has become Applying the “hypothetical federal drug Palacios-Suarez’s first offense final. felony” approach to Palacios-Suarez’s 2, 1999, in Kentucky May occurred on case, we conclude that the district court which he July was convicted on 2003. erred in finding prior that his two drug His second offense occurred Ohio “aggravated convictions constituted 30, 2002, on December for which he was felonies” under U.S.S.G. 2L1.2. Both of April convicted on Palac prior Palacios-Suarez’s convictions were ios-Suarez’s second offense occurred for possession of cocaine in violation of prior to his first becoming final. Kentucky Ohio and law. Because neither Accordingly, he could charged not be un of the state convictions involved a traffick der the provision recidivist of the federal element, ing our inquiry sole statute. See United States v. Ballesteros- is to determine whether Ruiz, Cir.2003) the two state convictions could be consid (noting that a may only defendant be ered felonies under the CSA. 844(a) treated as a recividist under if the The proper sufficiently second prior offense occurs after a convic analogous to the two state convic ). tion 844(a), tions is 21 U.S.C. which makes it sum, we conclude that because any person “unlawful for Palac- knowingly or in prior ios-Suarez’s tentionally state-felony possess convictions controlled sub would stance unless be classified as such substance was obtained misdemeanors law, directly, pursuant or under federal to a valid the state prescription convictions ” order, or practitioner.... from a could not be considered “drug trafficking 844(a). “Any person crimes” under who nor violates 1101(a)(43)(B). may this subsection be sentenced to a term felonies” under Accord- of imprisonment of year, ingly, not more than 1 the district court erred enhancing $1,000, shall be fined a minimum or his sentence pursuant to U.S.S.G. 2L1.2. ” both.... Id. under the analogous Though Supreme Court in Booker

701 (2001); Sentencing only Guidelines advi L.Ed.2d 718 United v. made the States Pornes-Garcia, (2d 142, 171 F.3d proper held that “the inter 145-48 sory, we have Cir.), denied, 880, cert. 528 U.S. 120 S.Ct. pretation provisions of the various 191, 145 (1999); L.Ed.2d 161 vitally im United States Sentencing Guidelines remains (11th Simon, 1271, Cir.), v. v. 168 F.3d 1272 portant for this court.” United States (6th Cir.2005). 844, Chriswell, 459, 114, cert. denied 528 U.S. 120 S.Ct. 401 F.3d 463 (1999); 145 L.Ed.2d 97 United States v. requirement clear Booker that “The (5th 691, Hinojosa-Lopez, 130 F.3d 693-94 applicable court ‘consider’ the district Briones-Mata, Cir.1997); v. range would otherwise be Guidelines (8th 308, Cir.1997); Davidson, 116 F.3d 309-10 Unit meaningless.” United States v. (6th Cir.2005) (internal Cabrera-Sosa, 998, 304, ed States v. 81 F.3d 409 F.3d 310 (10th omitted). Cir.), denied, Therefore, 999-1000 cert. 519 citation because we U.S. 218, (1996); 151 that the court erred in its S.Ct. 136 L.Ed.2d conclude district 2L1.2, Restrepo-Aguilar, United States v. application of U.S.S.G. we vacate (1st Cir.1996). F.3d 363-66 sentence and remand Palacios-Suarez’s to the district court for reconsid the case rocking I would be cautious about a boat Moreover, further note that eration. we this one I think as stable as seems to be. take the district court on remand “must real, stability apparent is more than now-advisory nature of into account the (1) however, given proper that inter- pursuant the Guidelines to Booker.” pretation aggravat- of “a conviction for an Chriswell, 401 F.3d at 470. felony” depends Congress ed on what said in 18 code section III. CONCLUSION speaks “any felony that un- reasons, foregoing For the we VACATE [etc.],” der the Controlled Substances Act Palacios-Suarez’s sentence and REMAND (2) eight two and circuits mentioned for the case to the district court resentenc- immigration have held in cases that above opinion and the ing consistent with this about fel- Supreme decision in Booker. Court’s ony punishable under the Controlled Sub- means, immigration stances Act” law NELSON, Judge, DAVID A. Circuit purposes, punishable under the Controlled concurring. Substances Act as a is not —which eight meaning assign than of our sister circuits those circuits to the No fewer language in the same statute for precise question pre addressed the same have Compare All law eight purposes. sented in the case at bar. INS, (2d 315, 317-18 Aguirre concluded that the term “a conviction for 79 F.3d Pornes-Garcia, Cir.1996), aggravated felony,” in U.S.S.G. with Caza used Ashcroft, includes a rez-Gutierrez v. 382 F.3d (9th Cir.2004), I court for a offense that would 919 with Ibarra-Galindo. my colleagues panel un on the as a misdemeanor be and Ninth Circuits have some der the relevant federal statute. the Second (There Wilson, explaining regard. to do (4th Cir.), denied, corresponding tension in the Third Cir cert. 538 U.S. no 512-13 Holmes, caselaw, cuit since Gerbier v. 123 S.Ct. 155 L.Ed.2d 871 Cir.2002) (3rd Ibarra-Galindo, (2003); immigration States v. F.3d 297 United —an Cir.2000), as that reaching cert. case the same result 1339-41 denied, Aguirre 148 reached Cazarez-Gutier- 531 U.S. S.Ct. (now Circuit; rez—stands alone in the advisory) Third sentencing guide- federal there is no Third Circuit case lines.

corresponding eight to the cases cited in opening paragraph of this concur-

rence.)

I my colleagues’ also conclu-

sion that “a conviction for an

aggravated felony,” as used in U.S.S.G. including should not be read as TIMBERLAKE, Norman

state court for a Petitioner- Appellant, offense that punishable only would be aas misdemeanor My under law. agreement with this sig- conclusion is not DAVIS, Superintendent, Cecil Indiana influenced, nificantly however, by the 1990 Prison, Respondent- State report quoted committee in the court’s Appellee. it, opinion. As I read the committee re- port speak does not question wheth- No. 04-2315. drug felony er a state analogous must be United Appeals, States Court of

to a drug felony opposed to a —as Seventh Circuit. lesser federal offense—in order to be clas- sified as a trafficking crime” and Aug. thus as an felony.” weighs The factor that heavily most

my mind not legislative history, but the

rule lenity. very least, At the it seems me, critical in 18 U.S.C.

§ 924(c)(2) “any felony punishable under —

the Controlled Substances Act”—could

reasonably be construed meaning either

“any as a

the Controlled Substances Act” or

offense that constitutes a

state or federal law and is un-

der the Controlled Substances Act.” There

being arguably permissible two construc- statutory

tions of this language, the rule of

lenity requires adopt us to the construction is more favorable to the defendant. Wagner, Cir.2004). The district court

having adopted the less favorable con-

struction, my I concur in colleagues’ judg-

ment that the challenged sentence must be

vacated and the case remanded for resen-

tencing under a proper construction of the

Case Details

Case Name: United States v. German Palacios-Suarez

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 22, 2005

Citation: 418 F.3d 692

Docket Number: 04-4187

Court Abbreviation: 6th Cir.