Tuesday, February 24th, 2009

Re: Possessed

United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)

Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an “aggravated felony” under the relevant immigration statute, 8 U.S.C. § 1101(a)(43), because it did not satisfy the statutory definition of “drug trafficking crime[].” See Simply Possession, posted 11/29/08.

The court’s decisions in this area have been confusing, however. The illegal reentry guideline, U.S.S.G. § 2L1.2, incorporates the same statutory definition, but the court has in some cases suggested that it might interpret that provision differently in the sentencing context. This case appears to have put that confusion to rest. Here, the court held that since the guideline specifies that the term “aggravated felony” has the “meaning given that term in [8 U.S.C. 1101(a)(43)],” Alsol’s interpretation of the term “aggravated felony” under the immigration statute controls the interpretation of that term under the guidelines.

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