     07-0785-cr
     United States v. Ayon-Robles


 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                                  August Term, 2008
 6
 7
 8   (Argued: October 16, 2008                 Decided: February 24, 2009)
 9
10                            Docket No. 07-0785-cr
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   United States of America,
15
16                     Appellee,
17
18               - v.-
19
20   Nolberto Ayon-Robles,
21
22                     Defendant-Appellant.
23
24   - - - - - - - - - - - - - - - - - - - -x
25

26         Before:           JACOBS, Chief Judge, WESLEY Circuit
27                           Judge, and ARCARA, District Judge.*
28
29         Nolberto Ayon-Robles appeals from a judgment of the

30   United States District Court for the Northern District of

31   New York (McAvoy, J.) applying an eight-level enhancement

32   under United States Sentencing Guidelines § 2L1.2(b)(1)(C)

33   for a prior aggravated felony, arguing that his prior


           *
            The Hon. Richard J. Arcara, Chief Judge, United
     States District Court for the Western District of New York,
     sitting by designation.
1    offense--a second state felony conviction for simple

2    possession of a controlled substance--was not an “aggravated

3    felony” under the Guidelines.       In Alsol v. Mukasey, 548 F.3d

4    207 (2d Cir. 2008), we held that a second felony conviction

5    for simple drug possession was not an aggravated felony for

6    purposes of the Immigration and Nationality Act of 1990, 8

7    U.S.C. § 1101(a)(43)(B).    Because the term “aggravated

8    felony” has the same meaning under the Guidelines as under

9    the INA, we vacate the sentence imposed on Ayon-Robles and

10   remand for re-sentencing.

11                                BRENDA K. SANNES, Miroslav
12                                Lovric, on the brief, Assistant
13                                United States Attorneys, for
14                                Glenn T. Suddaby, United States
15                                Attorney for the Northern
16                                District of New York , for
17                                Appellee.
18
19                                ALEXANDER BUNIN, Federal Public
20                                Defender, Melissa A. Tuohey,
21                                James F. Greenwald, Assistant
22                                Federal Public Defenders, on the
23                                brief, Syracuse, New York, for
24                                Appellant.
25
26
27   PER CURIAM:
28
29       Nolberto Ayon-Robles pled guilty in the United States

30   District Court for the Northern District of New York to

31   unlawful reentry by a deported alien in violation of 8


                                     2
1    U.S.C. §§ 1326(a) and (b)(2), having previously pled guilty

2    to two state felonies for simple possession of a controlled

3    substance.   The district court (McAvoy, J.) determined that

4    Ayon-Robles could have been prosecuted for felony recidivist

5    possession under federal law, and therefore applied an

6    eight-level sentencing enhancement for a prior aggravated

7    felony pursuant to United States Sentencing Guidelines

8    § 2L1.2(b)(1)(C).   On appeal, Ayon-Robles argues that a

9    second simple-possession felony is not an aggravated felony

10   for sentencing purposes.    Guided by our recent decision in

11   Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), we agree.        We

12   therefore vacate the sentence imposed below and remand to

13   the district court for resentencing.

14

15                              BACKGROUND

16       Ayon-Robles, a Mexican national, was arrested in

17   January 2002 following a traffic stop and charged with

18   possession of 11 mg of cocaine.    He pled guilty in

19   California state court to felony possession of a controlled

20   substance and was sentenced to three years of probation.        In

21   October 2002, police officers found .38 mg of

22   methamphetamine on Ayon-Robles during a lawful search.     He


                                    3
1    was again charged in state court with felony possession of a

2    controlled substance, and was convicted and sentenced to

3    three years of probation.   His probation was revoked in July

4    2005 and he was sentenced to concurrent sixteen-month and

5    two-year terms of imprisonment.   He was deported to Mexico

6    in March 2006.

7        In August 2006, Ayon-Robles was arrested in Delaware

8    County, New York, on suspicion of rape and endangering the

9    welfare of a child.   Ayon-Robles admitted to Immigration and

10   Customs Enforcement agents that he had reentered the United

11   States illegally in May of that year.   A grand jury returned

12   an indictment charging Ayon-Robles with unlawfully

13   reentering the United States after having previously been

14   deported following conviction of an aggravated felony, in

15   violation of 8 U.S.C. §§ 1326(a) and (b)(2).   Although Ayon-

16   Robles pled guilty to the indictment, he objected to the

17   imposition of an eight-level enhancement at sentencing,

18   arguing that his second state possession offense was not an

19   “aggravated felony” for sentencing purposes because it had

20   not been prosecuted as an offense punishable as a federal

21   felony.   The district court rejected Ayon-Robles’s argument

22   and applied the eight-level enhancement, imposing a 33-month


                                   4
1    sentence to be followed by three years of supervised

2    release.   This appeal followed.

3

4                              DISCUSSION

5                                  I.

6        We review sentences imposed on federal criminal

7    defendants for substantive and procedural reasonableness.

8    United States v. Booker, 543 U.S. 220, 261-62 (2005).          When

9    a sentence is imposed with due consideration given to the

10   United States Sentencing Guidelines, we review issues of law

11   de novo.   United States v. Selioutsky, 409 F.3d 114, 119 (2d

12   Cir. 2005).

13

14                                II.

15       The United States Sentencing Guidelines permit an

16   eight-level enhancement for a prior aggravated felony

17   conviction.   U.S.S.G. § 2L1.2(b)(1)(C).      The Guidelines

18   provide that “aggravated felony” has the same meaning as in

19   the Immigration and Nationality Act of 1990 (“INA”).

20   U.S.S.G. § 2L1.2 cmt. n.3(a).       The INA, in turn, defines

21   “aggravated felony” to include “drug trafficking crimes” as

22   defined in Title 18 of the United States Code.      8 U.S.C.

                                     5
1    § 1101(a)(43)(B).     And “drug trafficking crimes” are defined

2    in 18 U.S.C. § 924(c) to include “any felony punishable

3    under the Controlled Substances Act,” 21 U.S.C. § 801 et

4    seq.

5           In Lopez v. Gonzalez, the Supreme Court ruled that a

6    state offense only constitutes a “felony punishable under

7    the Controlled Substances Act” if the proscribed conduct is

8    “punishable as a felony under that federal law.”     127 S.Ct.

9    625, 633 (2006).    In other words, a state felony that would

10   be punishable only as a misdemeanor under the CSA is not a

11   “felony punishable under the Controlled Substances Act.”

12   Id.

13          The district court ruled that Ayon-Robles’s second

14   state possession offense was an aggravated felony because it

15   could have been prosecuted as a recidivist felony offense

16   pursuant to the Controlled Substances Act, which provides:

17              Any person who violates this subsection[,] if he
18              commits such offense after . . . a prior
19              conviction for any drug, narcotic, or chemical
20              offense chargeable under the law of any State, has
21              become final, [] shall be sentenced to a term of
22              imprisonment for not less than 15 days but not
23              more than 2 years, and shall be fined a minimum of
24              $2,500 . . . .
25
26   21 U.S.C. § 844(a).

27          On appeal, Ayon-Robles argues that the district court

                                     6
1    erred in treating his second simple-possession offense as a

2    recidivist felony for sentencing purposes.   He suggests that

3    a state felony is only a “felony punishable under the [CSA]”

4    if the elements of the federal offense were actually

5    presented to a fact-finder or admitted by a defendant.     In

6    other words, Ayon-Robles argues that it is not enough that

7    certain conduct might have been prosecuted as an offense

8    corresponding to a federal felony, but that instead the

9    elements of a charged state offense must correspond in all

10   material respects to the elements of a federal felony.

11       Our sister circuits have split on this question.      The

12   First, Third, and Sixth Circuits have held (in cases

13   applying the INA) that a second simple-possession offense

14   cannot be treated as a recidivist felony under the

15   Controlled Substances Act unless the offense was prosecuted

16   as a recidivist offense under state law.   See Berhe v.

17   Gonzales, 464 F.3d 74, 85-86 (1st Cir. 2006); Steele v.

18   Blackman, 236 F.3d 130, 137-38 (3d Cir. 2001); Rashid v.

19   Mukasey, 531 F.3d 438, 442-48 (6th Cir. 2008).   By contrast,

20   the Fifth and Seventh Circuits have held (in cases applying

21   the Sentencing Guidelines) that a second simple-possession

22   offense can be treated as a recidivist felony, since the


                                  7
1    conduct underlying the second possession could have been

2    prosecuted as a recidivist felony under the CSA.     See United

3    States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir. 2008)

4    (per curiam); United States v. Pacheco-Diaz, 506 F.3d 545,

5    548-50 (7th Cir. 2007).

6          In Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), we

7    agreed with the First, Third, and Sixth Circuits and held

8    that a second simple-possession conviction is not an offense

9    punishable as a felony under the Controlled Substances Act.

10   Alsol, 548 F.3d at 214.     We explained that the Supreme

11   Court’s decision in Lopez

12             does not stand for the proposition that a
13             state offense is a felony punishable
14             under the CSA if it could have been
15             charged as a recidivist state offense
16             that would then be punishable as a
17             federal felony; rather, Lopez stands for
18             the proposition that a state offense of
19             conviction that is punishable as a
20             federal felony is an aggravated felony.
21
22   Id.   Because a second simple-possession offense was not a

23   felony punishable under the CSA, we vacated a BIA decision

24   finding Alsol ineligible for cancellation of removal due to

25   a prior simple possession conviction.    Id. at 219.2


           2
             The government suggests that this case is controlled
     by United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), in
     which we upheld the application of an eight-level sentencing
                                     8
1        Our holding in Alsol was confined to the immigration

2    context, and therefore we did not decide whether our

3    reasoning extended to sentencing.     Id. at 218 n.9.   But the

4    Sentencing Guidelines specify that the term “aggravated

5    felony” in § 2L1.2(b)(1)(C) “has the meaning given that term

6    in section 101(a)(43) of the Immigration and Nationality

7    Act.”   U.S.S.G. § 2L1.2 note 3(A).   It follows that Alsol,

8    which interprets the term “aggravated felony” under 8 U.S.C.

9    § 101(a)(43), controls our interpretation of “aggravated

10   felony” under the Sentencing Guidelines.    We therefore hold

11   that a second simple-possession offense is not a felony

12   punishable under the CSA, and is therefore not an

13   “aggravated felony” justifying an eight-level enhancement

14   under U.S.S.G. § 2L1.2(b)(1)(C).

15

16       We therefore remand to the district court to vacate the

17   sentence and to resentence Ayon-Robles.


     enhancement under U.S.S.G. § 2L1.2(b)(1)(C), holding that
     the defendant’s three prior convictions for selling
     marijuana, as well has his prior simple possession
     conviction, constituted felonies punishable under the CSA.
     Simpson, 319 F.3d at 85-86. Because the three marijuana
     sale offenses were undoubtedly felonies under the CSA, the
     Simpson panel’s discussion of the simple drug possession
     offense was dictum, and does not control here. Alsol, 548
     F.3d at 218.
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