The U.S. Court of Appeals for the Second Circuit held that a conviction under New York law for sale of a controlled substance is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell. Pascual v. Holder, No. 12-2798, slip op. (2nd Cir. July 9, 2013) (Jacobs, Kearse, and Carney, JJ.) (per curiam).
This case involved an individual who was convicted of violating New York Penal Law § 220.39, sale of a controlled substance, and on that basis ordered removed by an IJ. The BIA affirmed. In an earlier decision, Pascual v. Holder, 707 F.3d 403 (2d Cir. 2013), the Second Circuit affirmed the BIA’s decision but granted rehearing upon request by Pascual and several prominent legal services agencies as amici. None of the new arguments swayed the court.
The court began by noting that a state offense constitutes illicit trafficking in a controlled substance if it punishes conduct that is punishable as a felony under federal law. Pascual, No. 12-2798, slip op. at 4. In its earlier decision, the court concluded that federal law punishes attempts to sell controlled substances (as well as actual or constructive sale), 21 U.S.C. § 841(a), thus “even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as…an aggravated felony.” Pascual, 707 F.3d at 405.
One of Pascual’s arguments on rehearing appears to have turned on the definition of an “offer to sell.” According to the court, on rehearing Pascual argued that the New York statute is broad enough to potentially punish fraudulent offers to sell narcotics. In an earlier decision involving a Connecticut drug trafficking conviction and the definition of a controlled substance offense included in the U.S. Sentencing Guidelines, the Second Circuit had determined that fraudulent offers to sell are not “offers” for purposes of sentencing enhancements under the Sentencing Guidelines. United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008). The Savage court noted that an offer to sell the Brooklyn Bridge would not constitute an “offer” for Sentencing Guidelines purposes because this is clearly not something that a particular individual could form the intent to do. Savage, 542 F.3d at 965.
Based on Savage, Pascual apparently claimed that fraudulent offers to sell are outside the scope of what constitutes illicit trafficking under the INA. Pascual, No. 12-2798, slip op. at 5-6. The court had no trouble disagreeing with Pascual’s assertion that such reasoning applies to New York’s sale of a controlled substance statute. “Unlike the Connecticut statute,” the court explained, “NYPL § 220.39 does not criminalize ‘mere offers’ (or fraudulent offers) to sell narcotics. Under New York law, the offer must be ‘bona fide,’ and a bona fide offer is one that is made with the intent and ability to follow through on the transaction.” Pascual, No. 12-2798, slip op. at 6.
The Second Circuit had similarly little trouble dismissing another argument raised by Pascual and amici: “that a conviction under NYPL § 220.39 does not necessarily reflect the ‘substantial step’ in selling drugs that is an element of the analogous federal offense.” Pascual, No. 12-2798, slip op. at 7. As the court explained, an attempt requires engaging in conduct “amounting to a ‘substantial step’ towards the commission of the crime” and doing so “with the intent to commit the crime.” Pascual, No. 12-2798, slip op. at 7 (quoting United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985)). Furthermore, “an attempt entails some ‘overt act’ to carry out the offense.” Pascual, No. 12-2798, slip op. at 7.
Reviewing Pascual’s conviction, the court concluded that there was no question that he engaged in a substantial step toward commission of the crime of selling narcotics and performed an overt act that helped propel that offense—he offered to sell drugs. Pascual, No. 12-2798, slip op. at 7-8.
Consequently, the court concluded that Pascual’s conviction under NYPL § 220.39 categorically constitutes illicit trafficking in a controlled substance for purposes of immigration law.
[Update (April 15, 2014): The Second Circuit’s decision takes a different approach to offers to sell under New York law than the Fifth Circuit did in Davila v. Holder, No. 08-60530, slip op. (5th Cir. Aug. 23, 2010) (unpublished). In Davila, 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, No. 08-60530, slip op. at 4. Thanks to Javier Maldonado, who represented Davila before the Fifth Circuit, for pointing out this disagreement. Also, Thomas E. Moseley, who represented Pascual before the Second Circuit, informed me that there is currently a petition for rehearing en banc pending.]