David Gerbier v. M. Francis Holmes, Acting District Director, Us Immigration

Filed February 8, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2335
DAVID GERBIER, Appellant
v.
M. FRANCIS HOLMES, ACTING DISTRICT DIRECTOR,
US IMMIGRATION AND NATURALIZATION SERVICE;
JOHN ASHCROFT, US ATTORNEY GENERAL*
* Substituted for Janet Reno pursuant to
Federal Rule of Appellate Procedure 43(c)(2).
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 00-2343)
District Judge: Honorable Charles R. Weiner
Argued: June 28, 2001
Before: BECKER, Chief Judge, NYGAARD and
REAVLEY* Circuit Judges.
(Filed: February 8, 2002)
SANDRA L. GREEN, ESQUIRE
(ARGUED)
1541 East Market Street, Suite 201
York, PA 17403
Counsel for Appellant
_________________________________________________________________
* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
PATRICK L. MEEHAN, ESQUIRE
United States Attorney
JAMES G. SHEEHAN, ESQUIRE
Assistant United States Attorney
Chief, Civil Division
STEPHEN J. BRITT, ESQUIRE
(ARGUED)
Assistant United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106-4476
Counsel for Appellees
OPINION OF THE COURT

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BECKER, Chief Judge.
This deportation case is before us on the appeal of David
Gerbier from an order of the District Court for the Eastern
District of Pennsylvania, which denied his petition for a writ
of habeas corpus. Gerbier is a citizen of Haiti who was a
lawful permanent resident of the United States from 1984
until 1999 when he was removed to Haiti in the wake of
proceedings triggered by a Delaware felony drug possession
conviction that came to the attention of the Immigration
and Naturalization Service ("INS").
The appeal turns on the meaning of "aggravated felony"
under the Immigration and Naturalization Act ("INA"). See
8 U.S.C. S 1 et seq. (1999). Whether an alien has been
convicted of an "aggravated felony" determines whether he
is eligible for cancellation of removal. See 8 U.S.C.
S 1229b(a)(3) (1999). The primary question, one of first
impression for us, is whether a state felony drug conviction
constitutes a "drug trafficking crime" and, therefore, an
"aggravated felony" under the INA when that crime would
only be punishable as a misdemeanor under federal law.
This issue turns on the proper interpretation of 18 U.S.C.
S 924(c)(2), which is the criminal penalties section of the
federal criminal code and is incorporated by reference into
the INA. See 8 U.S.C. S 1101(a)(43)(B) (1999).
2
Gerbier’s conviction was for "trafficking in cocaine" even
though the factual basis for the plea was mere possession,
which the Delaware statute subsumes under "trafficking."
While there is no dispute that a state felony drug conviction
constitutes an "aggravated felony" when there is a
trafficking component to the state conviction, we note that
there is a conflict between the Board of Immigration
Appeals ("BIA") and several Courts of Appeals with respect
to the proper interpretation of S 924(c)(2) as it applies to
state convictions when there is no trafficking element. This
conflict arose because the "aggravated felony" definition set
forth in S 1101(a)(43), incorporating S 924(c)(2), is
referenced not only in the deportation section of the INA,
but also in the United States Sentencing Guidelines.
The BIA has interpreted S 924(c)(2) to require that, for
deportation purposes, a state drug conviction, whether it be
a felony or a misdemeanor, must either contain a
"trafficking" component or be punishable as a felony under
federal law in order for it to constitute an"aggravated
felony." In contrast, several Courts of Appeals have
interpreted the same language in S 924(c)(2), albeit in the
Sentencing Guidelines context, to require that the state
drug conviction need only be a felony under state law and
that the state crime be punishable under the federal
Controlled Substances Act, either as a felony or a
misdemeanor. We are faced here with the task of
determining which interpretation of S 924(c)(2) is correct.

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While we acknowledge that the majority of Courts of
Appeals have taken the contrary approach, we conclude
that the BIA’s interpretation for deportation purposes is the
correct one. We recognize that the interpretation of
S 924(c)(2) in the Sentencing Guidelines context serves
different purposes, particularly with respect to criminal
recidivism, and we reserve for another day the proper
interpretation of S 924(c)(2) in the Sentencing Guidelines
context. For deportation purposes, however, we are
persuaded by precepts of statutory construction and by the
legislative history of S 924 that a state felony drug
conviction constitutes a "drug trafficking crime" only if it
would be punishable as a felony under the federal
Controlled Substances Act. We believe that this conclusion
3
properly reflects the policy favoring uniformity in
construction of the INA because it subjects aliens to the
same treatment regardless of how different states might
categorize similar drug crimes. However, we reject the
approach advanced by Gerbier that all state drug
convictions must have a trading or dealing element in order
to constitute "aggravated felonies" under the INA. Gerbier’s
argument stems from his belief that the 1990 amendments
to the INA altered the definition of which drug crimes were
"aggravated felonies." While we find strong intuitive appeal
in Gerbier’s argument, we believe that the legislative history
accompanying the 1990 amendments to the INA makes
clear that his interpretation is not correct.
Under the BIA’s approach, a state drug conviction
constitutes an "aggravated felony" under either of two
routes. Under the first route, a felony state drug conviction
is an "aggravated felony" under S 924(c)(2) if it contains a
trafficking element. Under the second route, a state drug
conviction, either a felony or a misdemeanor, is an
"aggravated felony" if it would be punishable as a felony
under the Controlled Substances Act. Applying the BIA’s
interpretation of S 1101(a)(43)(B) to Gerbier’s state felony
drug conviction, we conclude that he has not been
convicted of an "aggravated felony." Gerbier’s conviction
does not fall within the first route; although his conviction
was a felony under state law (thereby satisfying the INS’s
interpretation), his conviction did not involve a trafficking
element. We reject the INS’s argument that Gerbier’s
conviction under a statute entitled "Trafficking . . . in illegal
drugs" means that he is guilty of a trafficking offense. As
the Delaware Supreme Court has made clear, the statute
under which Gerbier was convicted does not contain an
element or presumption of trafficking -- it is merely the title
of the act. See Traylor v. State, 458 A.2d 1170 (Del. 1983).
In this case, Gerbier pleaded guilty to the lesser-included
offense of possession, and hence there is no trafficking
element.
Gerbier’s conviction also does not qualify as an
"aggravated felony" under the second route because his

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offense would not be punishable as a felony under federal
law. We reject the INS’s contention that 21 U.S.C.
4
SS 802(13) and (44) are the proper federal analogs. Those
sections do not define substantive offenses under Chapter
13 of Title 21; rather, they merely define "felony" and
"felony drug offense" for purposes of prior criminal history
sentencing enhancements for Chapter 13’s substantive
drug offenses. Instead, we conclude that the proper federal
analog is 21 U.S.C. S 844(a), the federal simple possession
statute. Under this statute, the maximum sentence that
Gerbier would have received had he been prosecuted in
federal court would have been one year. Thus, his state
felony drug conviction is only punishable as a misdemeanor
under federal law.
While we acknowledge that there is a sentence
enhancement under S 844(a) if there is a prior drug
conviction under either state or federal law, we conclude
that our decision in Steele v. Blackman, 236 F.3d 130 (3d
Cir. 2001), forecloses the INS’s argument that Gerbier
would have faced a minimum two year sentence under
S 844(a) because of his prior misdemeanor drug conviction
for marijuana. We held in Steele that a prior conviction
cannot be used to enhance a sentence for purposes of
determining whether the alien has been convicted of an
"aggravated felony" when his prior conviction was never
litigated as part of the criminal proceeding in the crime for
which the alien is being deported. It was not so litigated
here.
Having concluded that a state felony drug conviction
without a trafficking element constitutes an "aggravated
felony" under the INA only when that same crime would be
punished as a felony were the alien prosecuted in federal
court, and that Gerbier’s conviction would have only been
punishable as a misdemeanor under federal law, we will
reverse the District Court’s order denying habeas corpus
relief, and remand with instructions that it grant the writ
and return this matter to the agency so that Gerbier may
submit an application for cancellation of removal in
accordance with 8 U.S.C. S 1229b(a).
I. Facts and Procedural History
Gerbier, as noted, is a Haitian national who has been a
lawful U.S. permanent resident since 1984, resided in
5
Philadelphia, and has worked in a factory, a restaurant,
and a car wash. Gerbier’s mother, two brothers, and two
children reside in the United States. His children are
United States citizens. On May 1, 1996, Gerbier was

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arrested in Wilmington, Delaware for possession of
marijuana and, on February 6, 1997, pleaded guilty to the
charge of possession of marijuana, in violation of Del. Code
Ann. tit. 16, S 4754. He was placed on probation for three
years, his driver’s license was revoked, and he was ordered
to pay $25.00 in court costs.
A year later, on June 21, 1997, Gerbier was arrested,
again in Wilmington, and charged with trafficking in 160.22
grams of cocaine base, also known as "crack." The grand
jury in New Castle County returned a two-count indictment
against Gerbier in July 1997. The first count alleged
knowing possession of cocaine in excess of 100 grams, in
violation of Del. Code Ann. tit. 16, S 4716(b)(4). The second
count alleged possession with intent to deliver cocaine, in
violation of Del. Code Ann. tit. 16, S 4751. In August 1997,
Gerbier pleaded guilty to the lesser included offense of
"trafficking in cocaine," in violation of Del. Code Ann. tit.
16, S 4753A(2)(a). Section 4753A(2)(a), labeled "Trafficking
in marijuana, cocaine, illegal drugs, methamphetamines,
L.S.D., or designer drugs," states in relevant part:
Any person who, on any single occasion, knowingly
sells, manufactures, delivers or brings into this State,
or who is knowingly in actual or constructive
possession of, in excess of 5 grams or more of cocaine
or of any mixture containing cocaine . . . is guilty of a
class B felony, which felony shall be known as
"trafficking in cocaine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such
person shall be sentenced to a mandatory minimum
term of imprisonment of 3 years and to pay a fine of
$50,000.
The factual basis for the plea was that "on or about the
20th day of June, 1997, in the County of New Castle, State
of Delaware, [Gerbier] did knowingly possess over 5 grams
but less than 50 grams of cocaine." Gerbier was sentenced
to five years in prison, three of which were to be suspended
6
if he completed boot camp. This sentence was subsequently
vacated and Gerbier was sentenced to a boot camp program
for six months, followed by supervision for not less than
two and one-half years.
On May 11, 1999, still in Delaware state custody, Gerbier
was issued a Notice to Appear by the INS, which alleged
that Gerbier was deportable pursuant to 8 U.S.C.
S 1227(a)(2)(A)(iii) because he was convicted of an
"aggravated felony" as defined by 8 U.S.C.S 1101(a)(43)(B).
Section 1227(a)(2)(A)(iii) states in relevant part:
(a) Any alien . . . in and admitted to the United States
shall . . . be removed if the alien is within one or more
of the following classes of deportable aliens:

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(2) Criminal Offenses
(A) General Crimes
(iii) Aggravated felony
Any alien who is convicted of an aggravated felony
at any time after admission is deportable.
Section 1101(a)(43)(B) defines an "aggravated felony," as it
pertains to drug crimes, as "illicit trafficking in a controlled
substance (as defined in section 802 of Title 21), including
a drug trafficking crime (as defined in section 924(c) of Title
18)." In turn, S 924(c) defines a "drug trafficking crime" as
"any felony punishable under the Controlled Substances
Act (21 U.S.C. 801 et seq.) . . . ."1 Gerbier was released into
INS custody, and was detained administratively by the INS
at its facility in York County, Pennsylvania. An additional
charge of deportability was later lodged against him,
pursuant to 8 U.S.C. S 1227(a)(2)(B)(i), which relates to
convictions of controlled substance violations,"other than a
single offense involving possession for one’s own use of 30
grams or less of marijuana . . . ."
_________________________________________________________________
1. Section 924(c) defines "drug trafficking crime" as a felony punishable
not only under the Controlled Substances Act, but also under the
Controlled Substances Import and Export Act, 21 U.S.C. S 951 et seq.,
and the Maritime Drug Law Enforcement Act, 46 U.S.C. App. S 1901 et
seq. These latter two statutes are not at issue in this appeal, as the INS
has not argued that Gerbier’s 1997 "trafficking in cocaine" conviction
was a felony punishable under either of these statutes.
7
At a hearing in September 1999, the Immigration Judge
("IJ") found that Gerbier was not removable as an
aggravated felon, but sustained the charge that he was
removable for his convictions for controlled substance
violations. Pursuant to 8 U.S.C. S 1229b(a)(3), permitting
the Attorney General to "cancel removal . . . of an alien who
is . . . deportable from the United States if the alien-- (3)
has not been convicted of an aggravated felony," the IJ
granted Gerbier’s application for cancellation of removal,
thereby permitting him to retain his status as a permanent
resident of the United States. The INS appealed this
decision to the Board of Immigration Appeals ("BIA"),
arguing that the IJ erred in finding that Gerbier was not an
aggravated felon and, thus, eligible for cancellation of
removal. The BIA concluded that under 21 U.S.C.S 844(a),
Gerbier had been convicted of a felony. The BIA reasoned
that since Gerbier’s cocaine conviction followed a prior
marijuana conviction, he would be punishable under
S 844(a)’s sentence enhancement provision for a term
greater than one year, which is a felony under federal law.
See 18 U.S.C. S 3559 (1999). Thus, the BIA agreed with the
INS and, in February 2000, vacated the order of the IJ, and

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Gerbier was ordered removed from the United States. He is
currently being held in a detention facility in Port-Au-
Prince, Haiti.
Gerbier filed a habeas petition in the District Court for
the Eastern District of Pennsylvania under 28 U.S.C.
S 2241, arguing that the BIA violated his due process rights
and erred in determining that he was not eligible for
cancellation of removal. He also sought the opportunity to
apply for protection under the United Nations Convention
Against Torture ("CAT"). The District Court denied Gerbier’s
request for habeas relief, finding that the BIA had properly
determined that Gerbier was an aggravated felon and, thus,
ineligible for cancellation of removal. The District Court
permitted Gerbier to apply for protection under CAT, but
Gerbier subsequently declined this opportunity.
This timely appeal followed. The District Court had
jurisdiction pursuant to 28 U.S.C. S 2241. See INS v. St.
Cyr, 121 S.Ct. 2271, 2287 (2001) (holding that neither the
Antiterrorism and Effective Death Penalty Act of 1996 nor
8
the Illegal Immigration Reform Act of 1996 repealed the
District Court’s jurisdiction to review aliens’ habeas
petitions). We have appellate jurisdiction to review a
District Court’s order denying the issuance of the writ
pursuant to 28 U.S.C. SS 1291 and 2253. See Steele v.
Blackman, 236 F.3d 130, 133 (3d Cir. 2001). We review de
novo the District Court’s denial of habeas corpus relief and
its interpretation of the applicable statutes.2 Id. at 133.
II. Discussion
In order to determine whether Gerbier’s 1997 conviction
in Delaware State Court of "trafficking in cocaine" in
violation of Del. Code Ann. tit. 16, S 4753A was a "drug
trafficking crime," and thus an "aggravated felony" as that
term is defined in S 1101(a)(43)(B) of the INA (which would
render him ineligible for cancellation of removal under 8
U.S.C. S 1229b(a)(3)), we must examine the Delaware drug
laws, the INA, and the federal Controlled Substances Act.
As we document infra, the proper interpretation of this
statutory framework, and the definition of "drug trafficking
crime" in S 924(c)(2) as it pertains to state drug-related
offenses, has been the source of ongoing debate between
the BIA and various Courts of Appeals.
_________________________________________________________________
2. Although Gerbier argues that we owe Chevron deference to the BIA’s
interpretation of the term "aggravated felon," we do not believe such
deference is appropriate in this case. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). "Chevron appears
to speak to statutory interpretation in those instances where Congress
delegated rule-making power to an agency and thereby sought to rely on
agency expertise in the formulation of substantive policy." Sandoval v.
Reno, 166 F.3d 225, 239 (3d Cir. 1999). "Chevron deference is not

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required where the interpretation of a particular statute does not
‘implicate[ ] agency expertise in a meaningful way’ but presents instead
a ‘pure question of statutory construction for the courts to decide.’ "
Drakes v. Zimski, 240 F.3d 246, 250 (3d Cir. 2001) (citations omitted).
Although this case involves the statutory framework laid out in the
Immigration and Naturalization Act ("INA"), the specified section at issue
in this case is part of the federal criminal code that is incorporated by
reference into the INA. As such, the BIA’s expertise in interpreting the
INA is not implicated in a meaningful way and we need not defer to it.
9
While we have encountered appeals by aliens arguing
that they have not been convicted of aggravated felonies, we
have not yet been required to rule on a specific approach
with respect to state felony drug convictions. See Steele v.
Blackman, 236 F.3d 130 (3d Cir. 2001) (assuming the
validity of the BIA’s approach to the statutory framework,
without adopting it, because the defendant had only been
convicted of a misdemeanor under state law and
application of the BIA’s approach did not favor the INS);
United States v. Graham, 169 F.3d 787 (3d Cir. 1999)
(failing to reach the BIA’s interpretation of "aggravated
felony" in the context of a sentencing guidelines case since
the INS conceded the district court’s error on appeal). In
this case, however, Gerbier’s state conviction was a felony
under Delaware state law, but it did not contain a
trafficking element, and we must choose between the INS’s
interpretation and the BIA’s, since under the former we
would affirm and under the latter we would reverse.
Because this appeal requires us to adopt an interpretation,
we begin with a detailed analysis of the statutory
framework and then proceed to apply the framework to
Gerbier’s appeal.
A. Statutory Framework
The INA states that "Any alien . . . in and admitted to the
United States shall, upon order of the Attorney General, be
removed if the alien . . . is convicted of an aggravated felony
at any time after admission . . . ." 8 U.S.C.
S 1227(a)(2)(A)(iii) (1999). The definition of"aggravated
felony" is set forth in S 1101 of the INA, the general
definitional section applicable to the entire INA. Under
S 1101(a)(43)(B), an "aggravated felony" is defined as,
among other things, "illicit trafficking in a controlled
substance (as defined in section 802 of Title 21), including
a drug trafficking crime (as defined in section 924(c) of Title
18)." By its terms, S 1101(a)(43)(B) directs us to 18 U.S.C.
S 924(c), which lays out the penalties for the firearms
offense section of the federal criminal code.3 Under
_________________________________________________________________
3. Specifically, S 924(c)(2) defines "drug trafficking crime" for purposes of
S 924(c)(1), which imposes an additional penalty (generally five years) on
10

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S 924(c)(2), "drug trafficking crime" is defined as "any felony
punishable under the Controlled Substances Act (21 U.S.C.
801 et seq.) . . . ."
We are presented with three alternative approaches for
deciding when a state drug offense conviction constitutes
an "aggravated felony" under the INA. The first approach,
taken by the BIA, will be referred to as the Davis/Barrett
approach.4 The second approach, taken by various Courts
of Appeals in the sentencing guidelines context (and by the
INS in this appeal), will be referred to as the Guidelines
approach. The final approach is advanced by Gerbier. For
the reasons that follow, we adopt the Davis/Barrett
approach advanced by the BIA.
_________________________________________________________________
individuals who "use or carr[y] a firearm, or who, in furtherance of any
. . . crime, possess a firearm" "during or in relation to any . . . drug
trafficking crime . . . for which the person may be prosecuted in a court
of the United States." The INA, through S 1101(a)(43)(B), borrows this
definition for purposes of defining, under the INA, a "drug trafficking
crime" and therefore an "aggravated felony."
4. Although, in this case, the BIA determined that Gerbier had been
convicted of an aggravated felony, thereby rendering him ineligible for
cancellation of removal, its decision was not inconsistent with the
Davis/Barrett approach. Rather, the BIA’s determination that Gerbier
had been convicted of an aggravated felony rested on its belief that the
analogous federal crime under the Controlled Substances Act was a
felony. As the BIA stated:
Under federal law, certain drug possession offenses are punishable
by a term of imprisonment exceeding 1 year and are thus felonies.
Under S 844(a) (1990), a conviction for unlawful possession of a
controlled substance, where the offense is committed after a prior
drug conviction, is punishable by a term of imprisonment of up to
two years. Because the maximum term of imprisonment exceeds 1
year, it constitutes a felony. See 18 U.S.C.S 3559 (1988).
While this statement of the law is not incorrect, for the reasons we
explain infra at 32-35, we hold that Gerbier’s prior marijuana conviction
cannot be used in this case to conclude that his cocaine conviction is a
felony under federal law.
11
1. The "Aggravated Felony" Concept
and the Davis/Barrett Approach
The "aggravated felony" concept was introduced into the
INA by the Anti-Drug Abuse Act of 1998, Pub. L. No. 100-
690, 102 Stat. 4181 (1988) ("ADAA"). Section 1101(a)(43)

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was added to the INA pursuant to S 7342 of the ADAA,
which defined the term "aggravated felony" as it pertains to
a drug offense as "any drug trafficking crime as defined in
section 924(c)(2) of title 18, United States Code . . . ."5
Section 924(c)(2) was also amended by the ADAA, which
defined the term "drug trafficking crime" as"any felony
punishable under the Controlled Substances Act (21 U.S.C.
801 et seq.) . . . ." Thus, under the definition of "aggravated
felony" in the INA, as added by the ADAA, only a"drug
trafficking crime" constituted an "aggravated felony."
Following the addition of the "aggravated felony" concept
in 1988, the BIA had to decide whether a state drug
conviction could constitute a "drug trafficking crime" under
S 924(c)(2) and therefore an "aggravated felony" in Matter of
Barrett, 20 I&N Dec. 171, 1990 WL 385754 (BIA 1990). The
BIA resolved this issue by deciding that the definition of
"drug trafficking crime" under S 924(c)(2) was broad enough
to encompass state drug convictions. In reaching this
conclusion, the BIA observed that "Congress referred to
felonies ‘punishable under’ not ‘convictions obtained
under’ " the Controlled Substances Act. Barrett, 1990 WL
385754 at *175. Thus, the definition of "drug trafficking
crime" did not require an actual conviction under the
Controlled Substances Act. Rather, according to the BIA,
"the definition of ‘drug trafficking crime’ for purposes of
determining drug-related ‘aggravated felonies’ within the
meaning of the Immigration and Nationality Act
encompasses state convictions for crimes" where it can be
proven that the state conviction "includes all the elements
of an offense for which an alien ‘could be convicted and
punished’ under" the applicable federal statute in
_________________________________________________________________
5. The ADAA added other references to "aggravated felony," such as the
section rendering aliens deportable if they are convicted of an aggravated
felony and sections imposing certain targeted disabilities on aggravated
felons. These sections are not at issue in this appeal.
12
S 924(c)(2). Id. at *177, 174. We have labeled this the
"hypothetical federal felony" route. See United States v.
Graham, 169 F.3d 787, 789 (3d. Cir. 1999). While the
Barrett decision made clear that state drug convictions were
encompassed in S 924(c)(2), the BIA did not then speak to
the question whether, for purposes of determining if a state
drug conviction constituted a "drug trafficking crime," it
mattered whether the state conviction was a misdemeanor
or a felony.
The definition of "aggravated felony" was subsequently
amended by the Immigration Act of 1990, Pub. L. No. 101-
649, 104 Stat. 4978 (1990). Under the amended definition
a drug offense constitutes an "aggravated felony" if it
represents "any illicit trafficking in any controlled substance
(as defined in section 102 of the Controlled Substances
Act), including any drug trafficking crime as defined in

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section 924(c)(2) of title 18, United States Code . . . . Such
term applies to offenses described in the previous sentence
whether in violation of Federal or State law . .. ." See
section 501 of the Immigration Act of 1990, 104 Stat. at
5048, as corrected by section 306(a)(1) of the Miscellaneous
and Technical Immigration and Naturalization Amendments
of 1991, Pub. L. No. 102-2323, 105 Stat. 1733, 1751 (1991)
(emphasis added). While explicitly adding the phrase, "any
illicit trafficking in any controlled substance" to the
definition of an "aggravated felony," this amendment also
added that the term "aggravated felony" applies to offenses
"whether in violation of Federal or State law."
This change, in effect, codified the BIA’s holding in
Barrett. See H.R. Rep. No. 681, pt. 1, at 147 (1990),
reprinted at 1990 U.S.C.C.A.N. 6472, 6553 ("Because the
Committee concurs with the recent decision of the Board of
Immigration Appeals [in Matter of Barrett] and wishes to
end further litigation on th[e] issue [of whether a state drug
trafficking conviction can render an alien an aggravated
felon], section 1501 of H.R. 5269 specifies that drug
trafficking . . . is an aggravated felony whether or not the
conviction occurred in state or Federal Court."). With the
exception of a minor amendment in 1994, changing the
reference to S 924 from "S 924(c)(2)" to "S 924(c)," see
Immigration and Nationality Technical Corrections Act of
13
1994, Pub. L. No. 103-416, S 22(a), 108 Stat. 4310, 4320-
21 (1994), thereby making clear that "aggravated felony"
covers not only drug trafficking crimes, but also crimes of
violence, this is the definition now set forth in
S 1101(a)(43)(B).
Following the 1990 amendments, the BIA elaborated on
the question of when a state drug conviction could
constitute a "drug trafficking crime" under the newly-
amended definition of "aggravated felony" in Matter of
Davis, 20 I&N Dec. 536 (BIA 1992). The BIA split the post-
1990 definition of "aggravated felony" inS 1101(a)(43)(B)
into two routes, the "illicit trafficking in any controlled
substance" route and the "drug trafficking crime (as defined
in section 924(c) of Title 18)" route. Each route provides an
alternate means for determining whether a state drug
conviction amounts to an "aggravated felony" under the
INA.
The first route tracks the language of the newly-added
clause, "illicit trafficking in a controlled substance." The
BIA concluded that, pursuant to this language, "a drug-
related aggravated felony includes any state, federal, or
qualified foreign felony conviction involving the unlawful
trading or dealing of any controlled substance as defined in
section 102 of the Controlled Substances Act." Davis, 20
I&N at 541. Under this route, there are two necessary
elements for a state drug conviction to be an "aggravated
felony": (1) the offense must be a felony under the law of

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the convicting sovereign; and (2) the offense must contain
a "trafficking element" -- i.e., it must involve "the unlawful
trading or dealing of a controlled substance." Id. Thus, not
all drug offenses will constitute "illicit trafficking" and,
thus, "aggravated felonies" under the INA. In particular, "an
offense that is not a felony and/or an offense which lacks
a sufficient nexus to the trade or dealing of controlled
substances [does not] constitute[ ]‘illicit trafficking’. . . .
The offense of simple possession would appear to be one
example of a drug-related offense not amounting to the
common definition of ‘illicit trafficking.’ " Id.
The second route by which a state drug conviction could
be an "aggravated felony" under the INA is the"hypothetical
federal felony" route set forth in Barrett . While the BIA did
14
not state in Barrett whether the state drug conviction could
be either a misdemeanor or a felony, it further clarified its
position in Davis, stating that "if the offense is not
designated as a felony [under the convicting sovereign] it
may nonetheless be a ‘drug trafficking crime’ (and therefore
‘illicit trafficking’ and an ‘aggravated felony’) if it is
analogous to an offense punishable under one of the federal
acts specified in 18 U.S.C. S 924(c)(2), and the offense to
which it is analogous is a ‘felony’ under federal law." Id. at
543 (emphasis added). Thus, under the "hypothetical
federal felony" route, the "BIA understands[S 924(c)] to
encompass convictions for state offenses, however
characterized by the state, if those offenses would be
‘punishable’ under one of the three specified federal
statutes if federally prosecuted, so long as the hypothetical
federal conviction would be a felony under federal law, i.e.,
would be punishable by a term of imprisonment of over one
year." Steele v. Blackman, 236 F.3d 130, 135-36 (3d Cir.
2001). Until today, we have reserved ruling on the
"hypothetical federal felony" route.
2. Alternate Interpretation of S 1101(a)(43)
(The "Guidelines approach")
The Courts of Appeals have not entirely followed the
Davis/Barrett approach in construing the"aggravated
felony" definition in S 1101(a)(43). The views of these courts
first diverged from the position of the BIA in a peripheral
context, that of the United States Sentencing Guidelines.
Section 1101(a)(43)’s definition of "aggravated felony" is
referenced not only within the INA, but also in the
Guidelines. See U.S. Sentencing Guidelines Manual
S 2L1.2, Application Note 1 (2000). If an alien is removed
from the United Stated based on an "aggravated felony"
conviction and is later found guilty of unlawfully re-
entering the United States following his removal, in
violation of 18 U.S.C. S 1326, S 2L1.2 of the Sentencing
Guidelines requires the district judge to impose a 16-point
sentencing enhancement. The Sentencing Guidelines’
definition of "aggravated felony" refers explicitly to the

-- 12 of 29 --

"aggravated felony" definition found in S 1101(a)(43) of the
INA. See U.S. Sentencing Guidelines ManualS 2L1.2,
Application Note 1 (2000).
15
Cases involving aliens who have been deported pursuant
to a conviction for an "aggravated felony" and who have
been found guilty of illegally re-entering the United States
have perforce required the Courts of Appeals to construe
the "aggravated felony" definition as it relates to state drug
convictions. In general, the Courts’ approach has diverged
from and been critical of the BIA’s Davis/ Barrett approach
with respect to the "hypothetical federal felony" route. First
articulated by the First Circuit in Amaral v. INS, 977 F.2d
33, 36 n.3 (1st Cir. 1992) and United States v. Forbes, 16
F.3d 1294, 1301 n.10 (1st Cir. 1994), the most thorough
analysis of the alternate position is found in United States
v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996).
In Restrepo-Aguilar, the court was presented with the
question whether the term "aggravated felony," as used in
S 2L1.2 of the Sentencing Guidelines, includes a state drug
offense that, while a felony under the law of the convicting
state, would only be punishable as a misdemeanor under
federal law. The court concluded that it did. The defendant
argued, pursuant to the reasoning set forth by the BIA in
Davis and Barrett, that his state felony drug conviction did
not render him an "aggravated felon" since the elements
underlying his conviction would only amount to a
misdemeanor under the Controlled Substances Act. The
court rejected this approach, stating that the defendant was
reading S 924(c)(2) "as if it defined ‘drug trafficking crime’ as
any offense punishable as a felony under the CSA."
Restrepo-Aguilar, 74 F.3d at 364 (emphasis in original).
As the court pointed out, "[t]hat is not howS 924(c)(2) is
written. The statutory definition plainly does not require
that an offense, in order to be a drug trafficking crime, be
subject to a particular magnitude of punishment if
prosecuted under the CSA . . . ." Id. Rather, as written, the
argument continues, the statute required "only that the
offense be a ‘felony punishable’ " under the Controlled
Substances Act. Id. Moreover, the court observed that
under the Controlled Substances Act, a felony is defined as
"any Federal or State offense classified by applicable
Federal or State law as a felony." 21 U.S.C.S 802(13)
(1999). Thus, the court held that, at least with respect to
the Sentencing Guidelines, an alien is subject to the
16
sentencing enhancement under S 2L1.2 if: (1) the offense is
punishable under the Controlled Substances Act; and (2)
the offense is a felony, either under the law of the
convicting state or under the Controlled Substances Act.

-- 13 of 29 --

Under this view, a drug offense that is a felony under
state law, but would only be punishable as a misdemeanor
under a hypothetically analogous federal law, would qualify
as a "drug trafficking crime" under S 924(c)(2). According to
these courts, the BIA’s "hypothetical federal felony" route
distorts the plain language of "any felony punishable
under" in S 924(c)(2) by implicitly re-writing it as "any crime
punishable as a felony under." To date, in addition to the
First Circuit, the Second, Fifth, Eighth, Ninth, Tenth, and
Eleventh Circuits have also espoused this view in the
Sentencing Guidelines context.6
Whatever may be the proper construction in a Sentencing
Guidelines case, we do not agree that the plain meaning of
"drug trafficking crime" under S 924(c) in the deportation
context encompasses state felony convictions that would
merely be misdemeanors under federal law when there is
otherwise no trafficking component to the state law
conviction; in those instances it must be punishable as a
felony under federal law.7 And while we do not agree with
the view presented by Gerbier that a "trafficking"
component in a drug conviction is a necessary prerequisite
for the conviction to constitute an "aggravated felony,"
disposing of this point in the margin,8 we conclude that the
_________________________________________________________________
6. See, e.g., United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.
2001); United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000);
United States v. Pornes-Garcia, 17 F.3d 142 (2d Cir. 1999); United States
v. Simon, 168 F.3d 1271 (11th Cir. 1999); United States v. Hinojsa-Lopez,
130 F.3d 691 (5th Cir. 1997); United States v. Briones-Mata, 116 F.3d
308 (8th Cir. 1997); United States v. Garcia-Olmedo, 112 F.3d 399 (9th
Cir. 1997); United States v. Valenzuela-Escalante, 130 F.3d 944 (10th
Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996);
United States v. Polanco, 29 F.3d 35 (2d Cir. 1994).
7. As we noted supra at 14-15, if the conviction is a felony under state
law and encompasses a trafficking element, it is an aggravated felony
under the "illicit trafficking" route.
8. Gerbier submits that "8 U.S.C. section 1101(a)(43)(B) requires that
there be a showing that the offense involve illicit trading and dealing."
17
"hypothetical federal felony" route is the preferable reading
of S 924(c)(2).
3. Rationale for Adopting the "Hypothetical
Federal Felony" Route
We find that the language in S 924(c)(2), which by its own
terms is a federal sentence enhancement based on a
firearms offense, applies only to federal crimes of violence
or drug trafficking crimes. Prior to 1988 when this
definition was incorporated by reference into the INA by the
_________________________________________________________________

-- 14 of 29 --

Gerbier bases his argument on the 1990 amendments to the INA. See
supra at 13. He contends that the addition of the phrase, "illicit
trafficking in any controlled substance," to the beginning of
S 1101(a)(43)(B) was intended by Congress to make "trafficking" an
integral element of any state drug-related conviction in order for it to be
an "aggravated felony" under the INA. That is, Gerbier argues that
Congress was modifying the pre-1990 "drug trafficking crime" definition
by making trafficking an express element. Under his reading, even if a
state possession offense (with no trafficking element) would be analogous
to a federal drug felony -- and would thus constitute an "aggravated
felony" under the "hypothetical federal felony" route -- it would not be an
"aggravated felony" because there was no trafficking element to the
underlying offense.
We noted in a footnote in Steele v. Blackman, 236 F.3d 130 (3d Cir.
2001), that there is some intuitive appeal to the argument that Gerbier
now makes. We observed that "[t]he text of the statute as amended,
literally read, creates a single category: state or federal offenses involving
‘illicit trafficking’ (i.e., the marketing of drugs). Felony violation of the
three designated federal statutes are a subset of this single category.
Under this literal reading of the statute, ‘aggravated felony’ does not
include state or federal offenses that do not involve the marketing of
drugs." 236 F.3d at 136 n.5. However, as we discussed supra at 14, the
legislative history accompanying the 1990 amendments makes clear that
Congress was essentially codifying the BIA’s decision in Barrett by
making clear that state drug trafficking convictions were also
"aggravated felonies" under the INA. Thus, the 1990 amendments
extended the definition of "aggravated felony" to cover state drug crimes;
there is no evidence that Congress sought to modify the already-existing
set of drug crimes, which included, among others, drug trafficking
crimes under S 924(c)(2). We therefore conclude that "trafficking" is not
an essential element of all state drug convictions in order for those
convictions to constitute an aggravated felony underS 1101(a)(43).
18
ADAA, the only "felon[ies] punishable under the Controlled
Substance Act" covered by S 924(c)’s "drug trafficking
crimes" definition were federal felonies. 9 Our recent
decision in Steele v. Blackman makes precisely this
observation in discussing the pre-1990 definition of
"aggravated felony":
Section 924(c)(2) of Title 18, which has remained
unchanged during the relevant period, provides a
sentence enhancement in federal prosecutions for
defendants who have used or carried a firearm during
or in relation to the drug trafficking crime that is the
subject of the prosecution. It is in this context that
S 924(c)(2) defines "drug trafficking crime" as "any
felony punishable under" the three specified statutes.
Thus, if one literally substituted the text of S 924(c)(2)
for the text of "any drug trafficking crime (as defined in
section 924(c)(2))" in S 1101(a)(43), no state offenses
were included in the concept of aggravated "felony."
236 F.3d 130, 135 n.5 (3d Cir. 2001).

-- 15 of 29 --

This view is bolstered by the legislative history of the
section, as offered by Judge Canby of the Ninth Circuit, in
dissent in United States v. Ibarra-Galindo:
Until 1988, section 924(c)(2) defined "drug trafficking"
as "any felony violation of Federal law involving the
distribution, manufacture, or importation of any
controlled substance." 18 U.S.C. S 924(c)(2) (1982 &
Supp. V 1987). In the Anti-Drug Abuse Act of 1988,
Congress amended this subsection into its present
form, defining "drug trafficking crime" as"any felony
punishable under the Controlled Substances Act . . .."
18 U.S.C. S 924(c)(2) (citations omitted). Congress
labeled this change a "clarification." Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, S 6212, 102 Stat.
4181, 4360.
_________________________________________________________________
9. We note that a review of relevant case law involving 18 U.S.C.
S 924(c)(2) reveals that state law generally has not been at issue when
determining whether a defendant has committed a"drug trafficking
crime." See, e.g., United States v. Williams, 985 F.2d 749 (5th Cir.), cert.
denied sub nom. Kitchens v. United States, 510 U.S. 850 (1993).
19
206 F.3d 1337, 1342 (9th Cir. 2000) (emphasis added). As
a clarification, the 1988 amendments did nothing to change
the fact that the felony violation must be of federal, not
state, law. Thus, the BIA’s interpretation of the phrase
"felony punishable under the Controlled Substances Act" as
excluding crimes that are not "hypothetical federal felonies"
is not only plausible, but also logical in light of the history
of S 924(c)(2).
We note that the majority in Ibarra-Galindo, a Sentencing
Guidelines case, held that the approach adopted by the
other Courts of Appeals was the proper one, stating that:
If Congress had intended the meaning advanced by
Ibarra-Galindo, it would have most naturally referred
to offenses "punishable as felonies under the
Controlled Substances Act," but it did not. It is well
established that, when one interpretation of a statute
or regulation obviously could have been conveyed more
clearly with different phrasing, the fact that the
authors eschewed that phrasing suggests, ceteris
paribus, that they in fact intended a different
interpretation.
Ibarra-Galindo, 206 F.3d at 1339 (citations omitted). We
agree that if the interpretation is obvious, we should not
"eschew" that phraseology or look to legislative history. See
Darby v. Cisneros, 509 U.S. 137, 147 (1993) ("Recourse to
the legislative history of [a provision] is unnecessary in light
of the plain meaning of the statutory text."). However, as
the foregoing discussion makes clear (and as further

-- 16 of 29 --

explained infra) we do not agree that the language here has
such an obvious meaning. Finding the phrase to be
ambiguous, we must look to legislative history.
As noted above, in reaching the conclusion that a state
felony conviction is enough to constitute a "drug trafficking
crime" under S 924(c)(2) and, thus, an"aggravated felony,"
the several Courts of Appeals rely on the language of 21
U.S.C. S 802(13). See, e.g., Restrepo-Aguilar, 74 F.3d at 364
("Section 924(c)(2)’s definition of ‘drug trafficking crime’ by
its terms includes ‘any felony’ that is criminalized under
the CSA. The definition does not limit its application to
offenses that would be classified as felonies if prosecuted
20
under federal law. Furthermore, the CSA itself defines a
felony as ‘any Federal or State offense classified by
applicable Federal or state law as a felony.’ "). However,
S 802(13) does not define any substantive offense under the
Controlled Substances Act. Rather, S 802(13) defines
"felony" for purposes of sentencing enhancements for the
substantive crimes set forth in Chapter 21, see, e.g., 21
U.S.C. S 841(b)(1) (1999) (raising the sentence for an
841(b)(1) conviction if the violation occurs "after a prior
conviction for a felony drug offense"), but we are not
defining "felony" for purposes of sentencing enhancements.
We are defining "felony" for purposes of substantive drug
crimes.
The BIA noted this point in its decision, In re L-G, 21 I&N
Dec. 89, 25 Immig. Rptr. B1-1 (BIA 1995), where it was
called upon to address the argument made by the INS, and
embraced by many of the Courts of Appeals in the
Sentencing Guidelines cases, that the definition of"felony"
in the Controlled Substances Act at 21 U.S.C. S 802(13)
required the BIA to apply a state’s classification of an
offense as a felony in defining a "drug trafficking crime" in
the immigration context. The BIA squarely rejected this
approach, finding it more appropriate to look to the
definition of "felony" within title 18, whereS 924(c)(2) is
located. Thus, it concluded that the term "any felony"
under S 924(c)(2) referred to any felony under the definition
of a felony laid out at 18 U.S.C. S 3559(a). As defined in
Title 18, a felony is an offense where imprisonment for
more than one year is authorized under the relevant
criminal statute. See 18 U.S.C. S 3559(a)(5) (1999). A "drug
trafficking crime" under S 924(c)(2) was therefore any
"felony violation of the federal drug laws, i.e., any offense
under those laws where the maximum term of
imprisonment authorized exceeds 1 year." In re L-G, 21
Immig. Rptr. at B1-4; see also 18 U.S.C.S 3559(a)(5) (1999).10
Thus, a crime that is only punishable as a misdemeanor
under the Controlled Substances Act is not "any felony"
_________________________________________________________________
10. In addition, the BIA also found this "less expansive version" of "drug
trafficking crime" more consistent with the statutory history of

-- 17 of 29 --

S 924(c)(2). See supra at 18-21 (discussing the pre-1988 version of
S 924(c)(2)).
21
under S 924(c)(2). The BIA reiterated thatS 1101(a)(43)
makes reference to S 924(c)(2), but makes no reference to
21 U.S.C. S 802(13), and that the plain language of
S 924(c)(2) "directs us to the Controlled Substances Act,
and to the other enumerated federal drug laws, only for the
purpose of determining whether an offense is ‘punishable’
under its provisions as a felony, i.e., by a term of
imprisonment in excess of 1 year." In re L-G , 21 Immig.
Rptr. at B1-8. It then proceeded to point out that a"review
of the Controlled Substances Act reveals that the term
‘felony’ is generally used there for purposes other than to
describe offenses that are punishable under its provisions
. . . . Specifically, the term ‘felony’ is primarily used in 21
U.S.C. S 802(13) to trigger statutory sentence enhancement
for repeat offenders." Id.11 Indeed, there is only one instance
under the Controlled Substances Act where the term
"felony" is used to describe a punishable offense, see 21
U.S.C. S 843(b) (1999) (making it unlawful to use a
communication facility "in committing or causing or
facilitating the commission of any act or acts constituting a
felony under any provision of this subchapter"), and case
law makes clear that only a felony under federal law
satisfies the felony element of this offense. See, e.g., United
States v. Baggett, 890 F.2d 1095 (10th Cir. 1990) (holding
there was no violation of S 843(b) where a telephone was
used to obtain possession of marijuana since possession is
only a misdemeanor, not a felony, under 21 U.S.C.
S 844(a)).
We thus find the BIA’s rationale with respect toS 802(13)
persuasive. Although S 924(c)(2) directs us to the Controlled
Substances Act, S 924(c)(2) does not referenceS 802(13)
and, moreover, that section defines "felony" only for
purposes of sentence enhancements. Rather, whether a
substantive drug offense is a felony is controlled by 18
U.S.C. S 3559, which sets forth the general sentencing
classifications for most federal crimes and defines a felony
as an offense for which the term of imprisonment exceeds
one year. In light of the legislative history ofS 924(c)(2) and
_________________________________________________________________
11. The term "felony" is used under Part D of the Controlled Substances
Act, entitled "Offenses and Penalties," exclusively for the purpose of
prescribing penalties for defendants with prior felony convictions.
22
the need for uniformity in the immigration context, see
infra Part II.A.4, we are persuaded that the BIA’s
"hypothetical federal felony" route is the correct
interpretation of the statute.12 Moreover, we find the

-- 18 of 29 --

argument that the BIA’s "hypothetical federal felony" route
re-writes the language of the statute to read "any crime
punishable as a felony under" to be inadequate in light of
the aforementioned considerations.
4. The Matter of Uniformity
As noted supra Part II.A.1., Congress amended
S 1101(a)(43) in 1990 by adding that the term"aggravated
felony" "applies to an offense described in the previous
sentence, whether in violation of Federal or State law . . . ."
See Immigration Act of 1990, Pub. L. No. 101-649, 104
Stat. 4978 (1990). This change, in effect, codified the BIA’s
holding in Barrett. See H.R. Rep. No. 681, pt. 1, at 147
(1990), reprinted at 1990 U.S.C.C.A.N. 6472, 6553; see also
supra at 13. In Barrett, the BIA concluded that
S 1101(a)(43) was limited to state convictions that contained
_________________________________________________________________
12. In Steele, although we reserved ruling on the validity of the
"hypothetical federal felony" route, we expressed concern over the
potentially harsh results it produces. We observed that "[t]he fact that
this hypothetical offense approach imposes such grave consequences on
factual determinations made, or pleas entered, in misdemeanor
proceedings is one of its more troubling aspects. Misdemeanor charges
are frequently not addressed by a defendant with the same care as a
felony indictment with its more serious, immediate consequences." 236
F.3d at 137. Because we now conclude that the "hypothetical federal
felony" route is the proper interpretation of the statute, we must also
conclude that the statute contemplates these grave consequences.
However, we still maintain that, with respect to state law misdemeanor
convictions, there should be "sufficient formality" in the misdemeanor
conviction before it can serve as the basis for a hypothetical federal
felony. As we noted in Steele, our concern about the lack of care in
misdemeanor charges "counsels, at a minimum, that we insist on
sufficient formality in the misdemeanor proceeding to assure that each
and every element of the hypothetical federal felony is focused on and
specifically addressed in that proceeding." Id. However, this case does
not present us with the occasion to determine what formalities would be
"sufficient" in the misdemeanor context since Gerbier was convicted of a
felony under state law.
23
the same elements as a federal felony conviction. In so
doing, the BIA pointed out that "it is unreasonable to
assume that Congress, in choosing the definition of‘drug
trafficking crime’ at 18 U.S.C. S 924(c)(2), sought to
differentiate between aliens convicted of similar drug-
related offenses on the basis of whether the conviction was
accomplished under state or federal law." Barrett, 1990 WL
385754 at *175. This conclusion, and the amendment
incorporating it, are consistent with the fact that the
"Immigration and Nationality Act generally does not attach
different treatment to state and federal drug offenses with
respect to excludability, deportability, or the negative effect
of a drug conviction on various forms of relief from
exclusion or deportation." Id. at *176.

-- 19 of 29 --

As Alexander Hamilton wrote, the power over
naturalization must "necessarily be exclusive; because if
each State had power to prescribe a Distinct Rule there
could be no Uniform Rule." The Federalist No. 32
(Alexander Hamilton). Indeed, the policy favoring uniformity
in the immigration context is rooted in the Constitution.
See U.S. Const. art. I, S 8 ("The Congress shall have the
Power To . . . establish a uniform Rule of Naturalization.");
see also Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1993)
("Fundamental fairness dictates that permanent resident
aliens who are in like circumstances, but for irrelevant and
fortuitous factors, be treated in a like manner."). Yet, were
we to interpret S 924(c)(2) in the same manner as the
Courts of Appeals that have interpreted the relevant
language in the Sentencing Guidelines cases, aliens
convicted of drug offenses in different states that punish
similar offenses differently would be treated differently with
respect to deportation and cancellation of removal. 13
_________________________________________________________________
13. We acknowledge that there is a potential for inconsistent results
under Route A, the "illicit trafficking route," of the BIA’s approach since
states have the power to penalize "trafficking" offenses differently, either
as misdemeanors or felonies. However, we think that this potential is
slight, as we note that at least within our jurisdiction, all "trafficking"
offenses are punished as felonies under state law. See Del. Code Ann. tit.
16, S 4753A(2)(a) (2001); N.J. Stat. Ann.S 2C:35-5 (West 2001); 18 Pa.
Cons. Stat. S 7508 (2001). As such, we do not believe that this undercuts
the presumption of uniformity that we should afford Congress in its
immigrations laws.
24
Under the approach espoused by those Courts of
Appeals, as long as the state drug conviction is a felony
under state law, it need only be punishable, either as a
misdemeanor or a felony, under federal law in order for the
alien to be ineligible for cancellation of removal. As a result,
an alien in one state might be ineligible for cancellation of
removal even though he committed the same exact crime as
an alien in a different state, simply because the two states
punish the same crime differently. These disparate results
are a real possibility: A person convicted of a single offense
of simple possession of 30 grams or less of marijuana in
North Dakota, where the offense is punishable as a felony,
see N.D. Cent. Code S 19.03.1-23(6) (2000), would be
subject to deportation without the possibility to apply for
cancellation of removal under 8 U.S.C. S 1229b(a)(3),
whereas a person convicted of the same offense in
Montana, where this crime is only a misdemeanor, see
Mont. Code Ann. S 45-102(2) (2001), would not be subject
to deportation. This cannot be what Congress intended in
establishing a "uniform" immigration law. Moreover, we
note that the Second Circuit, the only other circuit to
address this issue in the immigration and sentencing
guidelines context, is in agreement with the BIA’s approach
--for deportation purposes--precisely because of the need

-- 20 of 29 --

for uniformity.14
_________________________________________________________________
14. Subsequent to the BIA’s decision in In re L-G, the Second Circuit
overruled, with the permission of the prior panel, an earlier case that
had interpreted S 924(c) in the manner espoused by the INS. See Aguirre
v. INS, 79 F.3d 315 (2d Cir. 1996), overruling Jenkins v. INS, 32 F.3d 11
(2d Cir. 1994). In re L-G questioned the logic behind the Jenkins decision
and, in reconsidering its approach to the "aggravated felony" inquiry in
the deportation context, the Second Circuit stated:
Since the BIA will now extend discretionary consideration to an alien
like Aguirre, adherence to Jenkins will mean that only aliens within
this Circuit will be denied such consideration. . . . We have
concluded that the interests of nationwide uniformity outweigh our
adherence to Circuit precedent in this instance. The statutory point
is fairly debatable . . . . Accordingly, we have sought and obtained
the concurrence of the Jenkins panel to abandon that precedent and
therefore grant the petition for review and remand for consideration
of petitioner’s requests for discretionary relief.
Id. at 317-18.
25
In sum, a state drug conviction, for deportation purposes,
constitutes an "aggravated felony" if it is either a felony
under state law and contains a trafficking element, or
would be punishable as a felony under the federal
Controlled Substances Act.
B. Application of the Davis/Barrett Approach
Having concluded that a state drug conviction may
constitute an "aggravated felony" under S 1101(a)(43) when
it constitutes either "illicit trafficking in any controlled
substance" or a "drug trafficking crime," as those terms
have been interpreted by the BIA, we must apply those
tests to the facts of Gerbier’s appeal.
To briefly recapitulate the salient facts, on February 6,
1997, in Delaware state court, Gerbier pleaded guilty to
possession of marijuana in violation of Del. Code Ann. tit.
16, S 4754. Subsequently, in August 1997, Gerbier pleaded
guilty to one count of a criminal offense labeled"Trafficking
in marijuana, cocaine, illegal drugs, methamphetamines,
L.S.D., or designed drugs," Del. Code Ann. tit. 16,
S 4753A(a)(2). Section 4753A(a)(2) states in relevant part:
Any person who, on any single occasion, knowingly
sells, manufactures, delivers or brings into this state,
or who is knowingly in actual or constructive
possession of, 5 grams or more of cocaine or of any
mixture containing cocaine . . . is guilty of a Class B
felony, which felony shall be known as "trafficking in
cocaine." If the quantity involved:
a. Is 5 grams or more, but less than 50 grams, such

-- 21 of 29 --

person shall be sentenced to a mandatory minimum
term of imprisonment of 3 years and to pay a fine of
$50,000.
Although S 4753A is labeled "trafficking in cocaine" and
punishes, inter alia, the sale, manufacture, and delivery of
cocaine, it also penalizes the simple possession of cocaine.
See id. ("Any person who . . . is knowingly in actual or
constructive possession of, 5 grams or more of cocaine or of
any mixture of cocaine . . . is guilty of a Class B felony
. . . .").
26
It is clear, see supra at 6, that Gerbier pleaded guilty
only to possession of between 5 and 50 grams of cocaine,
in violation of S 4753A. See Steele v. Blackman, 236 F.3d
130, 136 (3d Cir. 2001) (The BIA "looks to what the
convicting court must necessarily have found to support
the conviction and not to other conduct in which the
defendant may have engaged in connection with the
offense"). It is also clear that this offense is a felony under
Delaware state law. We must now determine whether this
conviction is an "aggravated felony" underS 1101(a)(43)(B)
of the INA. Gerbier’s drug conviction may constitute an
"aggravated felony" under either one of two routes. Under
the first route, "route A," a state drug conviction constitutes
an "aggravated felony" if the offense is a felony under state
law and contains a trafficking element. Under the second
route, "route B," a state drug conviction constitutes an
"aggravated felony" if the conviction, either a felony or
misdemeanor under state law, would be punishable as a
felony under federal law.
1. Route A -- "Illicit Trafficking in Any
Controlled Substance"
As discussed supra at 14, there are two necessary
elements for a state drug conviction to be an "aggravated
felony" under Route A -- the "illicit trafficking" route: (1)
the offense must be a felony under the law of the convicting
sovereign, and (2) the offense must contain a trafficking
element. Matter of Davis, 20 I&N Dec. 536 (BIA 1992). We
conclude that Gerbier’s August 1997 conviction is not an
"aggravated felony" under the "illicit trafficking" route
because it does not contain a "trafficking" element.
Under Delaware law, S 4753A is a Class B felony. Thus,
his August 1997 conviction satisfies the first element of
"illicit trafficking." However, the conviction does not satisfy
the second element, for there is no "trafficking" element to
his conviction. Gerbier did not plead guilty to distribution,
solicitation, or possession with intent to distribute or any
other fact suggesting that he was trading or dealing in
cocaine. Rather, all that Gerbier pleaded guilty to was
possession of between 5-50 grams of cocaine:
27

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THE COURT: You are charged by indictment with the
lesser included offense of trafficking. It states that you,
on or about the 20th day of June, 1997, in the County
of New Castle, State of Delaware, did knowingly
possess over 5 grams but less than 50 grams of
cocaine, as classified under Delaware law.
Are you pleading guilty to that charge?
GERBIER: Yes, Your Honor.
The INS argues that by pleading guilty to S 4753A,
Gerbier was in fact conceding that his offense involved
trading or dealing in drugs. That is, because S 4753A is
labeled "Trafficking in . . . cocaine," it must include a
"trafficking" component. In support of its position, the INS
points to the following language in the Delaware State
Supreme Court case, State v. Skyers:
S 4753A . . . is aimed at those who possess at least the
standard quantity of illicit drugs, regardless of any
proof of intent. The underlying presumption based on
quantity possessed represents a legislative judgment
that anyone found with that quantity of that particular
drug will be presumed to be involved in "trafficking" in
narcotics on a large scale or simply involved in an
isolated or individual drug transaction.
Skyers, 560 A.2d 1052, 1054-55 (Del. 1989). This
legislative presumption means, according to the INS, that
by pleading guilty to S 4753A, Gerbier was in fact also
conceding that drug trading or dealing was involved in his
offense.
We believe that this argument has been foreclosed by the
Supreme Court of Delaware. In Traylor v. State , 458 A.2d
1170 (Del. 1983), the court addressed the claim that
S 4753A was unconstitutional because it created an
"irrebuttable presumption" that anyone possessing a
statutorily-prescribed minimum quantity of drugs was
engaged in the trafficking of that drug. The court made
clear that this was not the case, stating that " ‘[t]rafficking’
. . . is not an element of the offense but the name of the
crime, as the statute makes clear. Furthermore, the statute
contains no presumption, rebuttable or conclusive . . . ." Id.
28
at 1177. Although Skyers came after Traylor, it does not
alter the Supreme Court of Delaware’s analysis, as it draws
no conclusion with respect to whether or not trafficking is
a necessary element of a conviction under S 4753A.
Moreover, we do not agree with the INS’s argument that,
in contrast to a mandatory presumption, Skyers establishes

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a "permissive inference" that a person containing a certain
quantity of a drug is "trafficking" in it. A"permissive
inference" is a conclusion that the jury can, but is not
required, to draw from a given set of facts. See County
Court of Ulster County, New York v. Allen, 442 U.S. 140,
157 (1979). However, in this case, we are not dealing with
factual findings. Rather, all that we have before us are the
facts to which Gerbier pleaded guilty, which were
possession of 5 to 50 grams of cocaine. Thus, there are no
"permissive inferences" to be drawn in this context and, to
the extent that the INS urges us to draw one, it looks like
a mandatory presumption which is foreclosed by Traylor,
and would raise constitutional questions under Francis v.
Franklin, 471 U.S. 307, 317 (1985) ("Our cases make clear
that ‘[ ] . . . shifting of the burden of persuasion with
respect to a fact which the State deems so important that
it must be either proved or presumed is impermissible
under the Due Process Clause.’ ").
Since all that Gerbier pleaded guilty to was possession of
between 5 to 50 grams of cocaine, his conviction does not
involve trading or dealing as is required for it to be "illicit
trafficking." Thus, his state law conviction does not
constitute an "aggravated felony" under the"illicit
trafficking" route.
2. Route B -- "Hypothetical Federal Felony"
Notwithstanding the fact that Gerbier’s conviction does
not contain a trading or dealing element, we must also
analyze whether his conviction may constitute an
"aggravated felony" under the "hypothetical federal felony"
route. As discussed supra at 14-15, to determine whether
a state drug conviction qualifies as a "hypothetical federal
felony" under S 924(c)(2) (defining "drug trafficking crime"
as "any felony punishable under the Controlled Substances
29
Act . . ."), a court must look to see whether the state drug
conviction is punishable as a felony under the Controlled
Substances Act ("CSA"). The INS offers two different federal
analogs for Gerbier’s S 4753A conviction. The first is 21
U.S.C. SS 802(13) and (44), defining "felony offense" and
"felony drug offense," respectively, for purposes of Chapter
13 of Title 21 (Drug Abuse Prevention and Control). The
second is 21 U.S.C. S 844 (a), the federal simple possession
statute. We conclude that Gerbier’s S 4753A conviction
would not be punishable as a felony under either of these
sections.
a. Sections 802(13) and (44)
The INS argues that SS 802(13) and (44), which define
"felony offense" and "felony drug offense," respectively,
suffice to prove that Gerbier’s S 4753A conviction, standing
alone, constitutes an "aggravated felony." The INS submits
that we must look to the definition of "felony" and "felony

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drug offense" as those terms are defined in the CSA,
specifically, SS 802(13) and (44), to determine whether a
state conviction is punishable as a felony under the CSA.
Section 802(13) defines "felony" as "any Federal or State
offense classified by applicable Federal or State law as a
felony." 21 U.S.C. S 802(13) (1999). Section 802(44) defines
"felony drug offense" as "an offense that is punishable by
imprisonment for more than one year under any law of the
United States or of a State or foreign country that prohibits
or restricts conduct relating to narcotic drugs, marihuana,
or depressant or stimulant substances." 21 U.S.C.S 802(44)
(1999). Since the CSA explicitly defines "felony" and "felony
drug offense" with respect to its felony classification under
either federal or state law, the INS argues that an offense
that is a felony under state law is punishable as a felony
under the CSA. In this case, Gerbier’s S 4753A conviction is
a felony under state law, so the INS submits that it is also
a felony under the CSA, thereby constituting an
"aggravated felony" under the INA.
The problem with the INS’s argument is that neither
S 802(13), nor S 802(44) defines substantive federal drug
offenses. See supra at 20-23. Rather, various other
provisions of Chapter 13 describe the federal drug offenses,
30
and SS 802(13) and (44) define "felony" and "felony drug
offense" for purposes of sentencing enhancements for the
substantive crimes based on prior criminal history. For
example, under 21 U.S.C. S 841(b)(1) there is a mandatory
minimum sentence of 10 years for various drug offenses.
However, if a S 841(b)(1) violation occurs"after a prior
conviction for a felony drug offense," the sentence is
enhanced to 20 years. 21 U.S.C. S 841(b)(1) (1999). Thus,
SS 802(13) and (44) do not speak to whether actual
substantive offenses set forth in Chapter 13 are, in
themselves, felonies, which is the relevant question under
the "hypothetical federal felony" approach. Rather, they
define "felony" and "felony drug offense" only for purposes
of Chapter 13’s prior criminal history sentence
enhancements.
As we observed supra at 20-23 whether a substantive
drug offense contained in the Controlled Substances Act is
a felony is controlled by 18 U.S.C. S 3559, the provision
that sets forth the general sentencing classifications for
most federal crimes. Under that section, if the specific
federal offense is silent on the classification issue, S 3559
gives it a classification based on the maximum term of
imprisonment and draws the line between federal felonies
and misdemeanors at one year. If the crime prescribes a
maximum sentence of "one year or less," it is a
misdemeanor. In contrast, if the crime prescribes a
sentence of "more than one year," it is a felony. We
implicitly acknowledged that this was the proper approach
in Steele when we stated, "[t]he BIA understands [the
hypothetical federal felony approach] to encompass

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convictions for state offenses, however characterized by the
state, if those offenses would be ‘punishable’ under one of
the three specified federal statutes if federally prosecuted,
so long as the hypothetical federal conviction would be a
felony under federal law, i.e., would be punishable by a
term of imprisonment of over one year." 236 F.3d at 135-36
(emphasis added); see also United States v. Graham, 169
F.3d 787, 792 (3d Cir. 1999) ("[U]nder federal law, a felony
is defined as a crime that has a maximum term of more
than one year.") (citing 18 U.S.C. S 3559(a)).
Thus, the fact that Gerbier’s S 4753A conviction is a
felony under Delaware law is irrelevant to whether it would
31
be punishable as a felony if he were prosecuted under
federal law. Since SS 802(13) and (44) do not state
substantive offenses, and do not set forth when a particular
federal crime is punishable as a felony, they are not the
appropriate federal analogs for Gerbier’s S 4753A
conviction.
a. Section 844(a)
We agree with the BIA that 21 U.S.C. S 844(a), the federal
controlled substance simple possession statute, is the
pertinent federal analog to Gerbier’s S 4753A offense.
Pursuant to S 844(a), it is unlawful for "any person
knowingly or intentionally to possess a controlled
substance . . . ." 21 U.S.C. S 844(a) (1999). The penalty for
violation of S 844(a) is a "term of imprisonment of not more
than one year." Under 18 U.S.C. S 3559, therefore, this
crime is a federal misdemeanor. Under S 844(a), a
defendant’s possible sentence is enhanced to two years if he
"commits such offense after a . . . prior conviction for any
drug, narcotic, or chemical offense chargeable under the
law of any State, has become final." 21 U.S.C.S 844(a)
(1999). According to the INS, the BIA was correct when it
determined that Gerbier’s February 1997 state conviction
for possession of marijuana renders Gerbier’s S 4753A
conviction a felony under this criminal history sentence
enhancement and, thus, he has been convicted of an
"aggravated felony" for purposes of the INA.
The problem with the INS’s argument and the BIA’s
conclusion in Gerbier’s appeal, however, is that our
decision in Steele requires us to discount Gerbier’s prior
marijuana conviction, thereby rendering his S 4753A
conviction only a federal misdemeanor under the
"hypothetical federal felony" route. In Steele, we reversed
the order of the District Court that had held that an alien’s
state misdemeanor conviction for marijuana distribution
constituted a hypothetical federal felony underS 844(a)
because of the alien’s prior state misdemeanor drug
conviction (the same rationale advanced by the INS in this
appeal). We concluded that in order for a state drug
conviction to constitute a hypothetical federal felony under

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S 844(a) based on the prior drug conviction enhancement,
32
we must be satisfied that the state adjudication possessed
procedural safeguards equivalent to the procedural
safeguards that would have accompanied the enhancement
in federal court. More specifically, if the crime were
prosecuted in federal court, the Government would have
had to file an information under 21 U.S.C. S 851 and would
have had to prove the prior conviction. At that time, the
defendant would have had the opportunity to attack the
prior conviction as unlawfully obtained. In a case like
Gerbier’s or Steele’s, however, all that the IJ has before him
is a record of conviction. Speaking through Judge
Stapleton, we stated:
If a United States Attorney wants a felony conviction,
he or she must file an information under 21 U.S.C.
S 851 alleging, and subsequently prove, that the
defendant has been previously convicted of a drug
offense at the time of the offense being prosecuted.
While the status of being a ‘one time loser’ is not
technically an element of the offense proscribed by
S 844, we agree with the District Court that it can be
treated as such. . . .
The problem with the District Court’s approach is not
that it treated the status of being a ‘one time loser’ as
an element of the hypothetical federal felony. Rather,
the problem is that Steele’s ‘one time loser’ status was
never litigated as part of a criminal proceeding. That
status was not an element of the crime charged in the
second misdemeanor proceeding against him. As a
result, the record evidences no judicial determination
that the status existed at the relevant time. For all that
the record before the immigration judge reveals, the
initial conviction may have been constitutionally
impaired. Even assuming that Steele was prudent
enough to insist on counsel in the second
misdemeanor proceeding and even assuming counsel
was perspicacious enough to focus on the potential
immigration consequences, the record simply does not
state that the prior conviction was at issue.
Steele, 236 F.3d at 137-38.
As in Steele, Gerbier’s prior marijuana conviction was
33
"never litigated as part of the criminal proceeding," i.e., as
part of the Delaware state court proceedings on theS 4753A
conviction. Consequently, Gerbier never had the chance to
test the validity of the prior marijuana conviction that now,
hypothetically, would be used to enhance his sentence

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under the "hypothetical federal felony" route. As a result,
the BIA should not have used his prior conviction to
enhance his sentence under S 844(a) to two years, thereby
rendering Gerbier’s S 4753A conviction a "hypothetical
federal felony." Rather, Gerbier’s S 4753A conviction for
possession of between 5 to 50 grams of cocaine would only
qualify as a federal misdemeanor under the "hypothetical
federal felony" route, which is not sufficient to constitute an
"aggravated felony" under the INA.15
Having concluded that Gerbier’s prior marijuana
conviction cannot be used to satisfy the "hypothetical
federal felony" route, Gerbier’s S 4753A conviction would
only be punishable as a misdemeanor under federal law.
See 21 U.S.C. S 844(a). Thus, his conviction does not
constitute a "drug trafficking crime" as defined in
S 942(c)(2), and he has, thereby, not been convicted of an
"aggravated felony" for purposes of S 1101(a)(43) of the INA.
Because we conclude that Gerbier has not been convicted
of an aggravated felony, hypothetical or otherwise, we will
reverse the judgment of the District Court and remand with
_________________________________________________________________
15. Our holding in Steele is undisturbed by Lackawanna County District
Attorney v. Coss, 532 U.S. 394 (2001), the companion to Daniels v.
United States, 532 U.S. 374 (2001). In Coss , the Supreme Court held
that state prisoners bringing habeas petitions under 28 U.S.C. S 2254
could not challenge their sentence on the ground that it was improperly
enhanced as a result of a prior conviction that was unconstitutionally
obtained. Lackawanna, however, speaks to challenges in subsequent,
post-conviction habeas proceedings. The defendant in that case had
already been afforded the chance to challenge the validity of the prior
conviction in prior proceedings. In contrast, what we lamented in Steele
was the fact that the defendant had not received an opportunity to
contest the validity of the prior conviction, which was now being used to
hypothetically enhance the alien’s hypotheticalS 844(a) offense at any
point in time during the proceeding for the state conviction that was
serving as the basis for the "hypothetical federal felony" conviction.
Thus, Coss is not on point and our decision in Steele controls our
outcome.
34
instructions that it grant the writ and return this matter to
the agency so that Gerbier may submit an application for
cancellation of removal in accordance with 8 U.S.C.
S 1229b(a).
35
REAVLEY, Circuit Judge, dissenting:
I diverge from the majority on the construction of the
definition of a "drug trafficking crime" in 18 U.S.C. S 924(c).
The words themselves seem to me to point to any state
felony that would be conduct punishable under federal law,

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rather than necessarily to a crime that would be punishable
as a felony under federal law. I might join Chief Judge
Becker’s masterful opinion, however, if we were surveying a
new route; but too many circuit courts have chosen the
other way and I would follow them in the interest of
consistency and uniformity of federal law.
I would affirm.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
36

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