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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.

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