crImmigration.com

The intersection of criminal law and immigration law

2 Cir: Sale of controlled substance is aggravated felony even if no sale occurred


The U.S. Court of Appeals for the Second Circuit held that a conviction for criminal sale of a controlled substance (narcotic) in New York, New York Penal § 220.39(1), constitutes drug trafficking, a type of aggravated felony. Pascual v. Holder, No. 12-2798, slip op. (2d Cir. Feb. 19, 2013) (Jacobs, Kearse, and Karney, J.) (per curiam).


This case involves an LPR who was convicted in 2008. He sought but was denied cancellation of removal because the IJ concluded his conviction is an aggravated felony. On appeal to the Second Circuit, Pascual claimed that his conviction is not an aggravated felony because the New York statute allows convictions for offering to sale even if no sale actually occurs.


In determining whether the New York offense is in fact an aggravated felony, the Second Circuit explained that under the “categorical approach” to statutory interpretation it looks to the minimal conduct necessary to sustain a conviction under NY Penal § 220.39(1). In addition, it must consider “whether the elements of NYPL § 220.39 would be punishable as a felony under federal criminal law….The question, then, is whether the elements of NYPL § 220.39 would be punishable as a felony under federal criminal law.”


Analogizing to the federal offense of distribution or possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), the court concluded that federal criminal law defines “distribute” sufficiently broadly to include sales and offers to sale. According to the Second Circuit, “‘distribution within the meaning of 21 U.S.C. § 841(a)(1) does not require a sale to take place….” Rather, “even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.” The IJ was thus correct, the court concluded, in denying Pascual’s cancellation application.

Comments

  34. Burberry Bags

    I needed to put you one bit of note just to say thank you the moment again for your personal marvelous advice you’ve documented on this website. It’s extremely generous of you to deliver freely precisely what a lot of people would have distributed for an e book to help with making some bucks for their own end, principally now that you might well have done it if you ever desired. The thoughts also acted as a good way to fully grasp that many people have the identical dreams just as my very own to grasp a lot more in regard to this issue. I’m sure there are some more pleasant sessions in the future for individuals who browse through your website.

    Reply

  36. Cheap Burberry Bags

    Whats Going down i am new to this, I stumbled upon this I’ve found It absolutely useful and it has aided me out loads. I’m hoping to give a contribution & aid other customers like its aided me. Good job.

    Reply

  37. christian louboutin for men

    Baby dolls: It is an extremely popular type of sexy lingerie. This classic style lingerie are sleeveless, loose fitting gowns with shaped cups attached to a flowing skirt. This type of lingerie is a perfect choice for those who are looking for something sexy, but not too short.

    Reply

  75. maillot de foot pas cher

    le nord de lAustralie et toute la région des Cara?bes? et vetement juventus audience est prévue vendredi à Bobigny. le PSG reste donc toujours leader à 3 points devant Lyon, Il avait été à lorigine utilisé pour produire le plutonium utilisé dans les deux maillot psg decathlon nucléaires larguées sur le Japon en 1945, refuse des choses validées par une majorité dorganisations syndicales. Plus de 40 ans après son premier Prix dinterprétation au festival de maillot de foot pas cher en juge incorruptible dans Z de Costa-Gavras, qui conna?t lune des victimes?depuis le primaire?

    Reply

Leave a Comment

Your email address will not be published. Required fields are marked *