                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-2264
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

ANGEL PACHECO-DIAZ,
                                         Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
         Northern District of Illinois, Eastern Division.
        No. 04 CR 866—Samuel Der-Yeghiayan, Judge.
                         ____________
                 On Petition for Rehearing
                      ____________
                DECIDED JANUARY 29, 2008
                      ____________


 Before EASTERBROOK, Chief Judge, and ROVNER and
SYKES, Circuit Judges.
  PER CURIAM. Our opinion in this appeal, 506 F.3d 545
(7th Cir. 2007), held, among other things, that Pacheco-
Diaz had been removed from the United States after
committing an “aggravated felony.” (His current convic-
tion is for unauthorized reentry after that removal.) An
alien who reenters after being removed for committing
an “aggravated felony” receives a higher offense level than
an alien removed for a less serious crime (or for a reason
other than crime). See U.S.S.G. §2L1.2(b)(1)(C). Pacheco-
2                                              No. 05-2264

Diaz’s pre-removal convictions include possessing mari-
juana, in violation of Illinois law. Simple possession of
marijuana is not a federal felony, however, and Pacheco-
Diaz argued that his offense therefore could not be
an “aggravated felony” for the purpose of 8 U.S.C.
§1101(a)(43), a definitional clause incorporated by refer-
ence in §2L1.2(b)(1)(C). But we concluded that multiple
“simple possession” convictions add up to a drug felony,
because 21 U.S.C. §844(a) treats possessing marijuana
that way if the defendant already has one marijuana-
possession conviction on his record.
  Pacheco-Diaz argues that we should grant rehearing
because our initial opinion overlooked the fact that none
of his convictions in Illinois is based on that state’s
recidivist statute. After our opinion was released, a
majority of the Board of Immigration Appeals con-
cluded—apparently as a result of a concession by counsel
for the Department of Homeland Security—that a state
marijuana-possession offense is an aggravated felony
under §1101(a)(43) only if the alien was charged as a
recidivist in state court. See Matter of Carachuri-Rosendo,
24 I.&N. Dec. 382 (2007). We disagree with that under-
standing of §1101(a)(43), for reasons well stated by
Member Pauley’s concurring opinion in Carachuri-
Rosendo.
  Normally, when administering federal recidivist statutes
such as 18 U.S.C. §924(e), federal courts look at the
elements of the prior offense under which the defendant
has been convicted, not at the conduct underlying that
conviction. See Shepard v. United States, 544 U.S. 13
(2005); Taylor v. United States, 495 U.S. 575 (1990).
Section 1101(a)(43) is not a recidivist statute, however,
nor does its application depend on the elements of the
state crime.
  Lopez v. Gonzales, 127 S. Ct. 625 (2006), holds that
classification of an offense for the purpose of §1101(a)(43)
No. 05-2264                                                 3

depends on how the accused’s conduct would be treated
under federal law. If the conduct of which the defendant
has been convicted would be a felony under federal law,
then it comes within §1101(a)(43) if it meets that
statute’s requirements concerning the subject-matter of
the crimes and the length of the sentence. In deciding
whether given conduct would be a drug felony under
federal law, it is not possible to limit attention to the
elements of the offense under state law; the point of
Lopez is that, when state and federal crimes are differ-
ently defined, the federal court must determine whether
the conduct is a federal felony, not which statute the
state cited in the indictment.
   This is not to say that the federal court (or the immigra-
tion officials, when §1101(a)(43) is applied in removal
proceedings) should look past the state convictions to see
what the defendant actually did. A court must stick
with the conduct reflected in the judgment of conviction.
But the district judge, when sentencing Pacheco-Diaz, did
not go behind the state convictions to the real-offense
behavior—did not, in other words, inquire whether
Pacheco-Diaz possessed a distribution-sized quantity of
marijuana, which would have supported a federal convic-
tion under 21 U.S.C. §841. Pacheco-Diaz has been con-
victed in state court, at least twice, of simple possession of
marijuana. A second marijuana-possession offense is a
felony under 21 U.S.C. §844(a) if the defendant’s second
episode of possession post-dates his first conviction, as
Pacheco-Diaz’s second possession did. 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 recidi-
vist statute in the first place. What provides the class-
ification under §1101(a)(43) is federal rather than state
law.
4                                                No. 05-2264

  Footnote 6 of Lopez (127 S. Ct. at 630 n.6) supports this
approach. It reads:
    Of course, we must acknowledge that Congress did
    counterintuitively define some possession offenses
    as “illicit trafficking.” Those state possession
    crimes that correspond to felony violations of one
    of the three statutes enumerated in §924(c)(2),
    such as possession of cocaine base and recidivist
    possession, see 21 U.S.C. §844(a), clearly fall
    within the definitions used by Congress in 8 U.S.C.
    §1101(a)(43)(B) and 18 U.S.C. §924(c)(2), regard-
    less of whether these federal possession felonies or
    their state counterparts constitute “illicit traffick-
    ing in a controlled substance” or “drug trafficking”
    as those terms are used in ordinary speech. But
    this coerced inclusion of a few possession offenses
    in the definition of “illicit trafficking” does not
    call for reading the statute to cover others for
    which there is no clear statutory command to
    override ordinary meaning.
This does not settle the matter—the footnote is elliptical
and dictum to boot. It is unnecessary to expatiate on its
meaning. 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. Footnote 6
of Lopez just acknowledges a logical consequence of the
Court’s general approach.
  Pacheco-Diaz’s convictions establish that he is a
marijuana-possession recidivist. His initial conviction, in
2000, occurred before the conduct that led to his second
drug conviction in 2002. Had he been prosecuted under
federal law, Pacheco-Diaz would have been treated as
a felon by §844(a). That makes him a controlled-sub-
stance felon for the purpose of §1101(a)(43) and justifies
No. 05-2264                                               5

application of the sentencing enhancement under
§2L1.2(b)(1)(C). The petition for rehearing is denied.




  ROVNER, Circuit Judge, dissenting. It is not often that
the author of a unanimous panel decision dissents from
the denial of panel rehearing and yet that is the position
in which I find myself. Because of rulings issued by the
Board of Immigration Appeals after the release of the
panel decision, I have come to doubt my resolution of the
sentencing issue regarding aggravated felonies. See In re
Carachuri-Rosendo, 24 I. & N. Dec. 382 (2007); In re
Thomas, 24 I. & N. Dec. 416 (2007). After oral argu-
ment in the instant case, the Supreme Court issued its
decision in Lopez v. Gonzales, 127 S. Ct. 625 (2006). The
government submitted the Lopez opinion as supple-
mental authority, arguing that under Lopez’s footnote
six, Pacheco-Diaz’s second state possession conviction
constituted a felony as defined by the CSA recidivist
provision, 21 U.S.C. § 844(a), and thus was an aggravated
felony pursuant to 8 U.S.C. § 1101(a)(43)(B) and guide-
line 2L1.2(b). The defendant did not respond to the gov-
ernment’s supplemental argument.
  Footnote six of Lopez states, in relevant part, that
“Congress did counterintuitively define some possession
offenses as ‘illicit trafficking.’ Those state possession
crimes that correspond to felony violations of one of the
three statutes enumerated in § 924(c)(2), such as posses-
sion of cocaine base and recidivist possession, see 21
U.S.C. § 844(a), clearly fall within the definitions used by
Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C.
§ 924(c)(2), regardless of whether these federal possession
6                                               No. 05-2264

felonies or their state counterparts constitute ‘illicit
trafficking in a controlled substance’ or ‘drug trafficking’
as those terms are used in ordinary speech.” Lopez, 127
S. Ct. at 630 n.6. Applying footnote six to the conduct
for which Pacheco-Diaz was convicted, our opinion found
that the defendant’s second state possession conviction
could have been charged as a felony under the CSA
recidivist provision and thus was an aggravated felony.
   The potential problem with that analysis is that it
applied the language of footnote six to the conduct and not
the offense for which Pacheco-Diaz was convicted. The
Court in Lopez and the prior authority of this court
both use a categorical approach in determining whether
a state offense constitutes an aggravated felony under
federal law. See Lopez, 127 S. Ct. at 633 (“In sum, we
hold that a state offense constitutes a ‘felony punishable
under the Controlled Substances Act’ only if it proscribes
conduct punishable as a felony under that federal law.”);
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005) (the
approach to identifying state crimes that Congress in-
tended to be treated as aggravated felonies is categorical).
The only relevant consideration in the categorical analy-
sis is the offense actually charged in state court, not the
crime that could have been charged for the defendant’s
underlying conduct. The offense for which Pacheco-Diaz
was convicted was simple possession. He could have been
charged for his second possession offense as a recidivist
in state court but he was not. He was instead charged as
if his second offense was his first, and our knowledge
that this was his second offense does not permit us to
recharacterize the charge. I agree with the per curiam
that the court should not look at the label the state
applies to the defendant’s conduct; but the court must,
under Lopez, consider the conduct the state statute
proscribes, and not the conduct behind the offense of
conviction. Lopez, 127 S. Ct. at 633. See also id., 127 S. Ct.
No. 05-2264                                              7

at 631 (“a state offense whose elements include the
elements of a felony punishable under the CSA is an
aggravated felony”).
  The categorical approach demands that we look to “the
elements of the state offense in question and, where
necessary, to the charging document pursuant to which
the petitioner was convicted, to determine whether the
offense corresponds to one of the crimes described as
aggravated felonies in the INA.” Gattem, 412 F.3d at 765.
To be charged as a recidivist under federal law, a prosecu-
tor would have to establish a number of elements beyond
those required in a simple possession case. See 21 U.S.C.
§ 851 (describing proceedings necessary to establish prior
convictions); Carachuri-Rosendo, 24 I. & N. Dec. at 384-85
(explaining that a judge may not impose a felony sen-
tence on a recidivist unless the prosecutor filed and
served an enhancement information that provides the
defendant with notice and an opportunity to review the
allegations of the prior convictions for accuracy, to con-
test the use of these convictions, and to create a trial
strategy, among other things). Lopez spoke of “state
possession crimes that correspond to felony violations” in
footnote six. Pacheco-Diaz’s second possession offense does
not “correspond to” recidivist possession under section
844(a). Nothing about the conviction or the charging docu-
ment corresponds to the recidivist elements of section
851, a provision of federal law entirely ignored by the per
curiam opinion; it reflects only simple possession. As the
Court stated in Lopez, “[u]nless a state offense is punish-
able as a federal felony it does not count.” 127 S. Ct. at
631. Possession, the state offense at issue, is not punish-
able as a federal felony and so it does not count. Because
Pacheco-Diaz did not commit an aggravated felony, the
eight-level increase under guideline 2L1.2 was in error.
  Our post-Lopez analysis would have been greatly aided
by full briefing of this issue, including the relevance and
8                                              No. 05-2264

effect of section 851. I had hoped my colleagues would
agree to withdraw the opinion and allow the issue to be
fully briefed. Like the government, however, they read
footnote six of Lopez without reference to the categorical
approach and without regard to the fact that Pacheco-
Diaz was not charged as a recidivist in state court, an
approach that I now believe may be mistaken. Carachuri-
Rosendo, 24 I. & N. Dec. at 390 (declining to treat a series
of misdemeanor possession offenses as trafficking fel-
onies unless the state offense corresponds in a meaning-
ful way to the essential requirements that must be met
before a felony sentence may be imposed under federal law
on the basis of recidivism). The opinion in Pacheco-Diaz as
it stands compares an offense the defendant could have
been charged with in state court with an offense the
defendant could have been charged with in federal court.
That is one too many levels of hypothetical application.
The BIA has indicated that it does not intend to follow our
decision in Pacheco-Diaz outside of the Seventh Circuit.
See Carachuri-Rosendo, 24 I. & N. Dec. at 393. A circuit
split is sure to follow. Because my colleagues do not wish
to give the matter additional consideration before that
inevitable result follows, I respectfully dissent from the
denial of panel rehearing.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-29-08
