5th Cir: NY sale of controlled substance is not drug trafficking type of aggravated felony

In an unpublished decision released last week, the Fifth Circuit Court of Appeals held that a conviction for criminal sale of cocaine in the second degree, N.Y. Penal § 220.41, does not constitute drug trafficking, a type of aggravated felony. Davila v. Holder, No. 08-60530, slip op. (5th Cir. June 15, 2010) (Higginbotham, Davis, and Benavides). Judge Davis wrote the panel’s opinion.

This case involved a citizen of Peru who pleaded guilty to criminal sale fourteen years after becoming an LPR. Davila, No. 08-60530, slip op. at 2. The IJ determined that this conviction constituted an aggravated felony making him ineligible for Cancellation of Removal. See INA § 240A(a)(3) (barring people convicted of an aggravated felony from receiving cancellation). The BIA affirmed the IJ’s determination.

As the Fifth Circuit explained, the INA defines the drug trafficking type of aggravated felony by incorporating the federal Controlled Substances Act’s (CSA) definition. In turn, “[t]he CSA defines a drug trafficking crime to mean any felony punishable under the CSA.” Davila v. Holder, No. 08-60530, slip op. at 3; see 18 U.S.C. § 924(c)(2) (providing the relevant provision of the CSA). Relying on Lopez v. Gonzales, 549 U.S. 47, 60 (2006), the Fifth Circuit explained “the question narrows to whether Davila’s conviction under N.Y. Penal Law § 220.41 is a felony under the CSA.” Davila v. Holder, No. 08-60530, slip op. at 3. Using the categorical approach to statutory interpretation, “the lone inquiry is whether there is a possibility that Davila could have violated N.Y. Penal Law § 220.41 without violating the CSA.” Davila v. Holder, No. 08-60530, slip op. at 3.

The Fifth Circuit then turned to analyzing New York’s criminal sale statute. An individual may be convicted of criminal sale in New York, the Fifth Circuit concluded, “for merely offering to sell, exchange, or give a controlled substance.” Davila v. Holder, No. 08-60530, slip op. at 3. No sale is required under the New York sale statute. In contrast, the CSA requires knowingly or intentionally distributing a controlled substance and distribution is defined as “the actual, constructive, or attempted transfer of a controlled substance.” Davila v. Holder, No. 08-60530, slip op. at 3-4; see 21 U.S.C. § 802(8), (11) (providing the relevant definitional sections of the CSA).

An offer to sell as defined in New York is not equivalent to distribution as defined by the CSA; therefore, a conviction under New York’s criminal sale statute is not punishable under the CSA. As the Fifth Circuit concluded, “Because Davila could have been convicted under N.Y. Penal Law § 220.41 for an offer to sell (which is not an offense under the CSA), he has not categorically committed a drug trafficking crime.” Davila v. Holder, No. 08-60530, slip op. at 4.

Since this decision is unpublished it is not binding on courts. Nonetheless, it does provide a useful analytical framework for making similar arguments in Immigration Court and provides citations to relevant published decisions—U.S. v. Price, 516 F.3d 285, 287 (5th Cir. 2008); U.S. v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007); U.S. v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).