United States v. Ayon-Robles, No. 07-0785 (2d Cir. 2009)

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07-0785-cr United States v. Ayon-Robles 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: October 16, 2008 Decided: February 24, 2009) Docket No. 07-0785-cr - - - - - - - - - - - - - - - - - - - -x United States of America, Appellee, - v.Nolberto Ayon-Robles, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WESLEY Circuit Judge, and ARCARA, District Judge.* 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. 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). 8 felony has the same meaning under the Guidelines as under 9 the INA, we vacate the sentence imposed on Ayon-Robles and 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 In Alsol v. Mukasey, 548 F.3d Because the term aggravated remand for re-sentencing. BRENDA K. SANNES, Miroslav Lovric, on the brief, Assistant United States Attorneys, for Glenn T. Suddaby, United States Attorney for the Northern District of New York , for Appellee. ALEXANDER BUNIN, Federal Public Defender, Melissa A. Tuohey, James F. Greenwald, Assistant Federal Public Defenders, on the brief, Syracuse, New York, for Appellant. PER CURIAM: 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. 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). 9 second simple-possession felony is not an aggravated felony The district court (McAvoy, J.) determined that On appeal, Ayon-Robles argues that a 10 for sentencing purposes. Guided by our recent decision in 11 Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), we agree. 12 therefore vacate the sentence imposed below and remand to 13 the district court for resentencing. We 14 15 16 BACKGROUND 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. 19 California state court to felony possession of a controlled 20 substance and was sentenced to three years of probation. 21 October 2002, police officers found .38 mg of 22 methamphetamine on Ayon-Robles during a lawful search. 3 He pled guilty in In He 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. 4 2005 and he was sentenced to concurrent sixteen-month and 5 two-year terms of imprisonment. 6 in March 2006. 7 His probation was revoked in July He was deported to Mexico 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. 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). 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. 22 and applied the eight-level enhancement, imposing a 33-month A grand jury returned Although Ayon- The district court rejected Ayon-Robles s argument 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). 9 a sentence is imposed with due consideration given to the When 10 United States Sentencing Guidelines, we review issues of law 11 de novo. 12 Cir. 2005). United States v. Selioutsky, 409 F.3d 114, 119 (2d 13 II. 14 15 The United States Sentencing Guidelines permit an 16 eight-level enhancement for a prior aggravated felony 17 conviction. 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). 21 aggravated felony to include drug trafficking crimes as 22 defined in Title 18 of the United States Code. U.S.S.G. § 2L1.2(b)(1)(C). The Guidelines The INA, in turn, defines 5 8 U.S.C. 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. 9 625, 633 (2006). 127 S.Ct. 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 18 19 20 21 22 23 24 25 26 27 Any person who violates this subsection[,] if he commits such offense after . . . a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, [] shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500 . . . . 21 U.S.C. § 844(a). 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. 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. 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 11 He suggests that In material respects to the elements of a federal felony. 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. 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). 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 See Berhe v. By contrast, 1 conduct underlying the second possession could have been 2 prosecuted as a recidivist felony under the CSA. 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). See United 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. 11 We explained that the Supreme Court s decision in Lopez 12 13 14 15 16 17 18 19 20 21 22 does not stand for the proposition that a state offense is a felony punishable under the CSA if it could have been charged as a recidivist state offense that would then be punishable as a federal felony; rather, Lopez stands for the proposition that a state offense of conviction that is punishable as a federal felony is an aggravated felony. Id. 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. Because a second simple-possession offense was not a 2 Id. at 219.2 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. 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. 8 which interprets the term aggravated felony under 8 U.S.C. 9 § 101(a)(43), controls our interpretation of aggravated U.S.S.G. § 2L1.2 note 3(A). Id. at 218 n.9. But the It follows that Alsol, 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 17 We therefore remand to the district court to vacate the 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. 9

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