                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2979
                                    ___________

Jorge E. Herrera-Soto,                   *
                                         *
             Petitioner,                 *
                                         * Petition for Review of
      v.                                 * an Order of the Immigration
                                         * and Naturalization Service.
Immigration and Naturalization           *
Service,                                 * [UNPUBLISHED]
                                         *
             Respondent.                 *
                                    ___________

                           Submitted: March 4, 1999
                               Filed: May 5, 1999
                                   ___________

Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Jorge E. Herrera-Soto petitions for review of an Immigration and Naturalization
Service (INS) order that found him to be deportable based on his conviction for an
“aggravated felony,” see 8 U.S.C. § 1227(a)(2)(A)(iii) (1994), and directed his removal
from the United States.
       On appeal, Herrera-Soto argues that although his state cocaine-possession
conviction was a felony under state law, it was not an “aggravated felony” for purposes
of the Immigration and Naturalization Act. Courts do not have jurisdiction to review
a final order of removal against an alien who is removable by reason of a conviction for
an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(C); Mendez-Morales v. INS, 119
F.3d 738, 739 (8th Cir. 1997) (per curiam). Nevertheless, when judicial review
depends on a particular fact or legal conclusion, a court may determine whether that
condition exists. See Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.) (discussing nearly
identical prior version of this jurisdictional provision), cert. denied, 18 S. Ct. 624
(1997); see also In re Gaines, 932 F.2d 729, 731 (8th Cir. 1991) (court of appeals has
jurisdiction to determine whether it has jurisdiction).

       An “aggravated felony” includes any drug trafficking crime as defined by 18
U.S.C. § 924(c), whether the offense is in violation of federal or state law. See 8
U.S.C. § 1101(a)(43)(B). Section 924(c)(2) in turn defines “drug trafficking crime” to
mean “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et
seq.)” (CSA). The CSA defines “felony” as “any Federal or State offense classified
by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13). Simple
possession of cocaine is punishable in federal court as a misdemeanor under the CSA,
see 21 U.S.C. § 844(a) (authorizing not more than 1 year imprisonment for possession
of controlled substance); 18 U.S.C. § 3559(a)(6) (offense is misdemeanor if maximum
term of imprisonment is 1 year), but Herrera-Soto’s cocaine-possession offense was a
felony under Texas law. Therefore, we conclude his offense was an “aggravated
felony” within the meaning of section 1101(a)(43). See United States v. Haggerty, 85
F.3d 403, 406 (8th Cir. 1996) (under § 1101(a)(43), prior conviction is “aggravated
felony” if it is punishable under CSA and is felony); United States v. Briones-Mata,
116 F.3d 308, 309 (8th Cir. 1997) (per curiam) (state felony conviction for purchasing
marijuana--which would have been misdemeanor under CSA possession provision--was
nonetheless “felony” for purposes of CSA, “drug trafficking crime” under § 924(c)(2),
and thus “aggravated felony”).1


      1
      Although Briones-Mata involved application of U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A) (providing for 16-level enhancement for offense of unlawfully
                                          -2-
      Accordingly, we dismiss for lack of jurisdiction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




entering or remaining in United States when defendant was previously deported for, or
remained after conviction for, “aggravated felony”), it is binding on us because it
ultimately construed § 1101(a)(43), the statute at issue here. See U.S.S.G. § 2L1.2,
commentary n.7 (1995) (defining “aggravated felony” by reference to § 1101(a)(43)).
See United States v. Wright, 22 F.3d 787, 788 (8th Cir. 1994) (subsequent panel is
bound by prior panel decision). Briones-Mata rejected a Second Circuit case that
followed a Bureau of Immigration Affairs case that held that an "aggravated felony"
had to be classified as a felony under federal law, regardless of its classification under
state law. See Briones-Mata, 116 F.3d at 309 n.2 (rejecting Aguirre v. INS, 79 F.3d
315 (2d Cir. 1996)). Thus, Herrera-Soto's argument relying on Aguirre is foreclosed.



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