United States of America v.  Jose Abelardo Amaya-Portillo

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4672 
JOSE ABELARDO AMAYA-PORTILLO,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-04-101)
Argued: February 4, 2005
Decided: September 6, 2005
Before WIDENER and SHEDD, Circuit Judges,
and James C. CACHERIS, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Senior Judge Cacheris
wrote the opinion, in which Judge Widener joined. Judge Shedd wrote
a separate opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Daniel William Stiller, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Bonnie S. Greenberg, Assistant
United States Attorney, OFFICE OF THE UNITED STATES

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ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James
Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland,
for Appellee.
OPINION
CACHERIS, Senior District Judge:
Jose Amaya-Portillo appeals the district court’s application of Sen-
tencing Guideline 2L1.2(b)(1)(C), a sentencing enhancement applied
when an alien was previously deported after a conviction for an "ag-
gravated felony." Amaya-Portillo has also filed a motion to remand
for sentencing consistent with United States v. Booker, 125 S. Ct. 738
(2005).1 For the reasons set forth below, the Court will deny Defen-
dant’s motion to remand and reverse the ruling of the district court
applying the sentencing enhancement.
I.
In 1999, Defendant Amaya-Portillo, a citizen of El Salvador, was
convicted for possession of cocaine, in violation of Md. Code, Art.
27, 287(e). Under Maryland law, the offense is characterized as a mis-
demeanor, and carries a maximum sentence of imprisonment of four
years’ incarceration or a fine not exceeding $25,000, or both. See Md.
Code, Art. 27 287(e)(2002)(current version at Md. Code Ann., Crim.
Law 5-601(c)(1)(2005)). Amaya-Portillo was sentenced to a period of
incarceration, which was entirely suspended, and 18 months of proba-
tion. J.A. 17, 56. Amaya-Portillo was subsequently deported to El
Salvador on or about August 1, 2003. On or about February 19, 2004,
Amaya-Portillo was found in Germantown, Maryland. He had not
obtained any authorization from United States law enforcement offi-
cials to reapply for admission to the United States.
On June 25, 2004, Amaya-Portillo pleaded guilty to one count of
unlawful reentry of a deported alien, in violation of 8 U.S.C. 1326.
1Consolidated with United States v. Fanfan, 125 S. Ct. 738 (2005).
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On August 16, 2004, Defendant appeared before the District Court for
the District of Maryland for sentencing.2
Unlawful reentry of a deported alien carries a base offense level of
8 under the United States Sentencing Guidelines Manual (2004). U.S.
Sentencing Guidelines Manual 2L1.2(a)(2004). The parties disagreed
as to the level of increase to the base offense level. The Government
argued that the offense level should be increased by 8 levels because
the Defendant was deported after a conviction for an "aggravated fel-
ony" pursuant to section 2L1.2(b)(1)(C). The Defendant argued that
the offense level should only be increased by 4 levels because he was
deported after a conviction for "another felony" pursuant to section
2L1.2(b)(1)(D). The Pre-Sentence Report ("PSR") took the position
of the Defendant that the offense level should be increased by only
4 levels.
The district court, however, agreed with the Government and
applied an 8 level offense increase. J.A. 41-42. On August 18, 2004,
Defendant filed this appeal. The Court has jurisdiction in this case
pursuant to 28 U.S.C. 1291 (2004). The issue on appeal is whether
Defendant’s 1999 conviction for possession of cocaine constitutes an
"aggravated felony" for purposes of section 2L1.2(b)(1)(C). This
appeal is currently before the Court.
On January 31, 2005, Defendant filed a motion for remand to the
district court for sentencing consistent with United States v. Booker,
125 S. Ct. 738 (2005). Defendant claims that United States v. Hughes,
396 F.3d 374 (4th Cir. 2005) allows the Court to exercise its discre-
tion to correct the plain error and remand the case. The Government
opposes the motion, and claims that: (1) Defendant waived the right
to appeal the Sentencing Guidelines calculation when he pleaded
guilty; and (2) the district court’s sentence does not constitute plain
error. This motion is also before the Court.
2Since Defendant was sentenced before the Court decided United
States v. Hammoud, 381 F.3d 316 (4th Cir. 2004), the district court did
not impose an alternative non-guidelines sentence.
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II.
Defendant argues that his sentence violates the Supreme Court’s
decision in Booker. Since he raises this issue for the first time on
appeal, and because this issue was not advanced in the district court,
we review the district court decision for plain error. United States v.
Hughes, 396 F.3d at 379 (citations omitted).
Although the Court would normally review the district court’s sen-
tencing for plain error, the Court need not reach that analysis since the
Defendant admitted as part of his plea agreement the facts giving rise
to his sentence. In Booker, the Supreme Court reaffirmed its holding
in Apprendi v. New Jersey, 530 U.S. 466 (2000), and held that "[a]ny
fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt." See Booker, Opinion
of Justice Stevens for the Court at 15.
Defendant’s plea agreement stated:
The Defendant and this Office knowingly and expressly
waive all rights conferred by 18 U.S.C. § 3742 to appeal
whatever sentence is imposed, including any fine, term of
supervised release, or order of restitution and any issues that
relate to the establishment of the guidelines range, reserving
only the right to appeal from an upward or downward depar-
ture from the guidelines range that is established at sentenc-
ing and the district court’s determination as to whether a
prior conviction for possession of cocaine warrants a 4- or
8-level adjustment under U.S.S.G. § 2L1.2. Nothing in this
agreement shall be construed to prevent either the Defendant
or this Office from invoking the provisions of Federal Rule
of Criminal Procedure 35, and appealing from any decision
thereunder, should a sentence be imposed that exceeds the
statutory maximum allowed under the law or that is less
than any applicable statutory mandatory minimum provi-
sion.
J.A. 10.
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The Supreme Court explained in Booker that "the ‘statutory maxi-
mum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant." Amaya-Portillo does not argue that his
sentence exceeds the statutory maximum. Rather, his only argument
in seeking remand is that his sentencing was in error because the dis-
trict court treated the Sentencing Guidelines as mandatory, whereas
they are now only to be advisory. However, the Defendant waived
this argument when he pleaded guilty.
A defendant may waive his right to appeal if that waiver is "the
result of a knowing and intelligent decision to forgo the right to
appeal." United States Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir.
1995)(quoting United States v. Attar, 38 F.3d 727, 731 (4th Cir.
1994)). Defendant does not argue that his waiver of the right to appeal
was not knowing or intelligent. In fact, his plea agreement states that
he knowingly and expressly waived the right.
Moreover, it appears that when the district court accepted the guilty
plea, the judge engaged in a colloquy with the Defendant to ensure
that the Defendant understood the provision of the plea agreement in
which the Defendant waived his right to appeal. (See Appellee’s
Resp. Mot. to Remand at 1-2). In fact, the court accepted Defendant’s
guilty plea the day after the Supreme Court decided Blakely v. Wash-
ington, 124 S.Ct. 2531 (2004), and the parties agreed that Blakely was
inapplicable since judicial fact-finding was not necessary based on the
issues present in the sentencing. J.A. 38.
Developments in the law announced by Booker and Hughes subse-
quent to Defendant’s guilty plea do not invalidate his plea. United
States v. Blick, 408 F.3d 162, 170 (4th Cir. 2005); see also Brady v.
United States, 397 U.S. 742, 757 (1970)("[A] voluntary plea of guilty
intelligently made in the light of the then applicable law does not
become vulnerable because later judicial decisions indicate that the
plea rested on a faulty premise."). Accordingly, Amaya-Portillo’s
guilty plea and waiver of his right to appeal his sentence precludes
him from seeking resentencing under an advisory guidelines scheme
pursuant to Booker.3 The Court will deny the motion to remand.4
3The Court notes that even if we were to hold that the waiver was
invalid, Amaya-Portillo would not be entitled to resentencing because
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III.
The Fourth Circuit reviews the district court’s imposition of the
sentence enhancement de novo because it entails the interpretation of
a statute. United States v. Wilson, 316 F.3d 506, 512 (4th Cir. 2003),
cert. denied, 71 USLW 3698 (U.S. May 5, 2003)(No. 02-9932).
Amaya-Portillo challenges the enhancement of his sentence pursu-
ant to section 2L1.2(b)(1)(C) of the Sentencing Guidelines, which
provides for an 8 level enhancement for illegal reentry when the
defendant was previously deported after "a conviction for an aggra-
vated felony."5 The issue presented is whether a state conviction for
possession of cocaine can ultimately qualify as an "aggravated fel-
ony" under section 2L1.2 if it is a misdemeanor under the applicable
state law and punishable only as a misdemeanor under the Controlled
Substances Act ("CSA"), 21 U.S.C. 801 et seq. This is a question of
first impression in this circuit. The district court concluded that
regardless of Maryland’s classification of the offense as a misdemea-
nor, the offense qualified as an aggravated felony since the maximum
sentence was more than one year. J.A. 34-36. We disagree.
Our analysis is largely taken from the Court’s opinion in a similar
case, United States v. Wilson, 316 F.3d 506, 512 (4th Cir. 2003). As
dictated by Wilson, our analysis begins with the guideline itself. The
term "aggravated felony" is not defined in the text of subsection
there is nothing in the record to show that he suffered actual prejudice
by being sentenced under the mandatory guideline regime that existed
prior to Booker. See United States v. White, 405 F.3d 208 at 223-24 (4th
Cir. 2005).
4As explained below, we must nonetheless remand for resentencing
because of an error in the determination of Amaya-Portillo’s guidelines
sentence. In resentencing Amaya-Portillo, the district court must treat the
guidelines as advisory. See United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
5In his plea agreement, Amaya-Portillo reserved his right to appeal the
district court’s determination as to whether a prior conviction for posses-
sion of cocaine warrants a 4- or 8-level adjustment under the Sentencing
Guidelines. J.A. 10.
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2L1.2. However, the application note for the subsection states that an
"aggravated felony" has the meaning given that term in 8 U.S.C.
1101(a)(43). U.S. Sentencing Guidelines Manual 2L1.2, cmt. n.3.
Section 1101(a)(43) of Title 8 provides that "[t]he term ‘aggravated
felony’ means — (B) 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) . . . ." 8 U.S.C.
1101(a)(43)(B). Section 924(c) of Title 18 states that "the term ‘drug
trafficking crime’ means any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), . . . [or two other enumerated
statutes.]" 18 U.S.C. 924(c)(2). The two elements of section 924(c)(2)
are (1) any felony, that is (2) punishable under the CSA (or one of the
other two enumerated statutes). Wilson, 316 F.3d 506 at 512.
To determine whether the state crime is a "felony," the Court must
consider whether Amaya-Portillo’s state conviction for possession of
cocaine amounts to a felony within the meaning of section 924(c)(2).
Possession of cocaine is punished by the CSA as a misdemeanor. See
21 U.S.C. 844(a)(providing for a term of imprisonment of not more
than 1 year). Thus, the offense meets the second requirement of 18
U.S.C. § 924(c)(2). The CSA defines the term "felony" as "any Fed-
eral or State offense classified by applicable Federal or State law as
a felony." 21 U.S.C. 802(13). This Court has found that definition to
be "clear and unambiguous." Wilson, 316 F.3d at 512.
The district court determined that Amaya-Portillo’s state misde-
meanor conviction which carried a maximum sentence of four years’
incarceration qualified as a felony under 21 U.S.C. 802. The district
court used Title 21 U.S.C. 802(44) as a guide to classifying a "felony"
under section 802(13). Section 802(44) of Title 21 defines the term
"felony drug offense" as "an offense that is punishable by imprison-
ment for more than one year under any law of the United States or
a State or foreign country . . . ." 21 U.S.C. 802(44). The court noted
that application note 2 to Section 2L1.2 states "[f]or purposes of sub-
section (b)(1)(A), (B), and (D), ‘felony’ means any federal, state, or
local offense punishable by imprisonment of a term exceeding one
year." U.S. Sentencing Guidelines Manual 2L1.2, cmt. n.2 (2004).
The court also noted that application note 4 defines "misdemeanor"
as "any federal, state, or local offense punishable by a term of impris-
onment of one year or less." Id., cmt. n.4(A). Finally, the court stated
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that its conclusion was somewhat supported by language in Wilson
where this Court used the length of potential punishment as a way to
classify a prior conviction as a felony or as a misdemeanor.
The Government argues in support of its position that defining a
"felony" to include a state misdemeanor conviction for which the
exposure is more than one year’s imprisonment so as to avoid "dis-
crepancy in treatment across the nation based upon labels in state law,
and instead . . . recognize that the treatment for punishment purposes
was a more reliable indicator for the seriousness of the offense," (J.A.
36) is consistent with the way state misdemeanors are treated for pur-
poses of the felon-in possession cases under 18 U.S.C. 922(g), career
offender determination, and Armed Career Criminal Act prosecutions.
The Government also argues that the definition set forth in 21 U.S.C.
802(44) which turns on the possible punishment is consistent with the
definition of a felony under 18 U.S.C. 3559(a).
The gravamen of the Government’s position is that since Congress
has defined a "felony" as a crime punishable by more than one year
imprisonment in other contexts, the same definition should be applied
in this context. For example, Section 922(g) of Title 18 states: "It
shall be unlawful for any person — (1) who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding
one year; . . . to ship or transport in interstate or foreign commerce
. . . any firearm or ammunition . . . ." 18 U.S.C. 922(g)(1)(2004). The
charge associated with this statute is being a "felon in possession of
a firearm," and the statute implicitly defines a "felon" as someone
who has been convicted of a crime punishable by imprisonment of
more than one year. However, this statute is inapplicable to the issue
in this case. Although these statutes indicate that Congress has
deemed as relevant potential punishment rather than a state’s classifi-
cation of the offense in other contexts, they do not show that Con-
gress so intended for purposes of Sentencing Guideline
2L1.2(b)(1)(C). If anything, the fact that Congress could have so
defined a "felony" for purposes of Sentencing Guideline section
2L1.2(b)(1)(C), but did not, indicates that Congress did not intend for
the same definition of a "felony" as a crime punishable by more than
one year of imprisonment to apply.
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Amaya-Portillo argues that application of Section 2L1.2(b)(1)(C)
in this case turns upon a state’s classification of an offense as a felony
or misdemeanor, rather than the possible penalty attached to the
offense. He makes the following arguments: (1) Section 802(13) of
Title 21 contains the relevant definition of "aggravated felony" for
purposes of section 2L1.2(b)(1)(C) and expressly defines "felony" as
those offenses "classified" as such by the jurisdiction in which the
crime occurred; (2) the commentary to Section 2L1.2 makes potential
punishment the appropriate measure for all purposes except determin-
ing whether a prior offense constitutes an "aggravated felony;" (3) in
Wilson, this Court determined that possession of cocaine in violation
of Virginia law constitutes an "aggravated felony" because it is "clas-
sified as a felony under the law of the relevant state;" and (4) the
Court’s decision in Wilson followed cases from seven other circuits,
each of which conducted the "aggravated felony" inquiry by focusing
upon the "classification" of an offense under state law rather than
upon potential punishment. These arguments are persuasive.6
Under the analysis dictated by Wilson, the Court does not consider
the definition of "felony drug offense" under Title 21 U.S.C. 802(44)
in this context. Rather, section 2L1.2(b)(1)(C) directs the Court, albeit
circuitously, to the definition of a "felony" in Title 21 U.S.C. 802(13).
6Defendant submitted as supplemental authority pursuant to Rule 28(j)
of the Federal Rules of Appellate Procedure, the D.C. Circuit’s decision
in United States v. West, 393 F.3d 1302 (D.C. Cir. 2005). In West, the
court considered whether an underlying Maryland conviction for misde-
meanor possession of a narcotic drug was a "felony drug offense" merit-
ing a sentencing enhancement under 21 U.S.C. 841(b)(1)(A). The court
concluded that in order to determine whether the first conviction was a
"prior conviction for a felony drug offense" meriting the sentencing
enhancement, Section 841(b)(1)(A) must be read in pari materia with
Sections 802(13) and 802(44). Id. at 1305 (emphasis in original). Thus,
the court held that a prior drug conviction only provides the predicate for
the enhancement if it is both punishable by more than one year of impris-
onment and characterized as a felony by the controlling law, either state
or federal. Id. (emphasis in original). Since the offense was not a felony
under Maryland law or the CSA, the enhancement could not be applied.
However, because the sentencing enhancement in section 841(b)(1)(A)
specifically applies to a "felony drug offense," the court’s analysis is not
instructive on the issue now before this Court.
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As the Court stated in Wilson, "that definition is clear and unambigu-
ous." 316 F.3d at 512. Thus, the definition encompassed the defen-
dant’s Virginia conviction because the offense was a felony under
Virginia law. Id. By the same reasoning, since Amaya-Portillo’s
offense is not classified by Federal or State law as a felony, the
offense is not a "felony" as defined by Section 802(13), and not an
"aggravated felony" for purposes of section 2L1.2(b)(1)(C).
The Government points out that the Court in Wilson noted that the
definition of a felony as a Federal or State offense classified by appli-
cable Federal or State law as a felony "is also consistent with the defi-
nition used in the guideline at issue." 316 F.3d at 513 n.4 (citing U.S.
Sentencing Guidelines Manual 2L1.2, cmt. n.1(B)(iv)(2001)). The
application note the Court was referring to defines "felony" as "any
federal, state, or local offense punishable by imprisonment for a term
exceeding one year." However, that application note expressly states
the definition of "felony" "[f]or purposes of subsection (b)(1)(A), (B),
and (D)." A different application note states the definition of "aggra-
vated felony" "[f]or purposes of subsection (b)(1)(C)."
As Amaya-Portillo points out, this commentary to section 2L1.2
makes potential punishment the appropriate measure for all purposes
except determining whether a prior offense constitutes an "aggravated
felony." See U.S. Sentencing Guidelines Manual 2L1.2, cmt. n.2,
3(A). That the Sentencing Commission did not make potential punish-
ment the appropriate measure for determining whether a prior offense
constitutes an "aggravated felony," but did so for determining whether
a prior offense constitutes a "felony," indicates that the Sentencing
Commission did not intend for potential punishment to be the appro-
priate measure for determining whether a prior offense constitutes an
"aggravated felony."
Finally, the Court’s decision in Wilson followed cases from seven
other circuits, each of which conducted the "aggravated felony"
inquiry by focusing upon the "classification" of an offense under state
law rather than upon potential punishment. Wilson, 316 F.3d at 512
(citing United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.
2000)7; United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999);
7The Ninth Circuit now focuses on potential punishment rather than
the classification of the offense under state law. See United States v.
Robles-Rodriguez, 281 F.3d 900, 904-05 (9th Cir. 2004).
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United States v. Simon, 168 F.3d 1271 (11th Cir. 1999); United States
v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997); United States v.
Briones-Mata, 116 F.3d 308 (8th Cir. 1997); United States v.
Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); United States v.
Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996)). In each of those cases,
the defendants had committed offenses that were felonies under state
law, but not federal law. Nevertheless, the courts of appeals con-
cluded that the defendants had committed "felonies" for purposes of
21 U.S.C. 802(13), and section 2L1.2 of the Sentencing Guidelines.
No court of appeals has squarely addressed the issue presented in this
case: whether an offense is a "felony" for purposes of the CSA and
section 2L1.2 if the offense is not labeled a felony under state or fed-
eral law.
The Ninth Circuit has come close to this issue. In United States v.
Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir. 2004), the court
rejected an interpretation of "felony" to "mean that an offense is a fel-
ony under the Controlled Substances Act as long as the convicting
jurisdiction labels it as such, without regard to the punishment desig-
nated for the offense." Rather, the court concluded that a "felony"
under the Controlled Substances Act describes "offenses punishable
by more than one year’s imprisonment under applicable state or fed-
eral law." The court came to this conclusion for three reasons.
First, it looked to the CSA’s definition of a "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 coun-
try." Id. (citing 21 U.S.C. 802(44)(emphasis in original)). The court
reasoned that under the interpretation it rejected, a drug offense could
be a felony (and therefore a "felony drug offense") even if punishable
by less than one year’s imprisonment — a result clearly inconsistent
with the statute’s definition of "felony drug offense." Id. Invoking the
canon of statutory construction that "one provision of a statute should
not be interpreted in a manner that renders other sections of the same
statute inconsistent, meaningless, or superfluous," the court deter-
mined that Congress intended the word "felony" to describe offenses
punishable by more than one year’s imprisonment under applicable
state or federal law. Id. (citing United States v. Fiorillo, 186 F.3d
1153 (9th Cir. 1999)).
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Second, the court noted that Congress has a longstanding practice
of equating the term "felony" with offenses punishable by more than
one year’s imprisonment. Id. (citations omitted). And it noted that
federal offenses today are defined as felonies if they are punishable
by more than one year’s imprisonment. Id. (citing 18 U.S.C. 3559(a)).
Because the court saw no clear indication that Congress "intended to
abandon its general approach of using uniform categorical definition
to identify predicate offenses," it was "reluctant to infer . . . that Con-
gress intended to abandon its long-established practice of using the
term ‘felony’ to describe offenses punishable by more than one year’s
imprisonment." Id. at 904-5.
Third, the court presumed that by defining aggravated felonies with
reference to state law, Congress "intended to accord respect in the
federal sentencing scheme to each state’s judgment regarding the
appropriate punishment of criminal offenses." Id. at 905. In United
States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir. 2000), the
court had held that a state drug possession offense that was punish-
able as a felony under state law, but would have been only a misde-
meanor if charged under federal law, was still an "aggravated felony"
for purposes of the Sentencing Guidelines. From Ibarra-Galindo, the
court extracted "the sound principle that a state’s judgment about the
appropriate punishment for an offense is entitled to deference in the
federal sentencing scheme." 281 F.3d at 905. It should be noted that
in Ibarra-Galindo, the court had held that it was the "denomination"
or "classification" of an offense by a state court as a felony that deter-
mined whether the offense was an aggravated felony for purposes of
the Sentencing Guidelines. See Ibarra-Galindo, 206 F.3d at 1339-40.
The court did discuss giving deference to the state, stating "we may
infer that the Sentencing Commission intended with U.S.S.G. § 2L1.2
to affix greater weight to the fact that a defendant has violated what
the relevant jurisdiction declares to be a ‘felony’ than to the fact that
the federal government demarcates felonies and misdemeanors on a
different basis than the state does." Id. at 1340 (emphasis in original).
The Sixth Circuit recently adopted the rule announced in Robles-
Rodriguez and held that "a state drug conviction is not a felony under
state law, even if it is labeled as such, if it is not punishable under
state law by a term of imprisonment of more than one year." Liao v.
Rabbett, 398 F.3d 389, 395 (6th Cir. 2005).
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However, we refuse to adopt the same rule. As a threshold matter,
it is not clear that the Ninth and Sixth Circuits would rule that
Amaya-Portillo’s drug possession offense is an aggravated felony
because neither court has considered whether a state crime labeled a
misdemeanor, but also punishable by more than one year’s imprison-
ment, is an aggravated felony. In fact, their analysis concluding that
the length of possible imprisonment is the deciding factor is not par-
ticularly instructive because they have not confronted the issue before
us now. In addition, we do not find the Ninth Circuit’s analysis per-
suasive.
In Wilson, the Court stated that the definition of "felony" as "any
Federal or State offense classified by applicable Federal or State law
as a felony" is "clear and unambiguous." Wilson, 316 F.3d at 512. We
see no reason to look to the definition of a "felony drug offense" to
determine whether Amaya-Portillo’s drug crime is a "felony punish-
able under the Controlled Substances Act." See 18 U.S.C. 924(c)(2).
Section 924(c)(2) could easily have defined a "drug trafficking crime"
as a "felony drug offense" punishable under the Controlled Sub-
stances Act. Yet it does not; it defines a "drug trafficking crime" as
a "felony punishable under the Controlled Substances Act." 18 U.S.C.
924(c)(2). "Felony" and "felony drug offense" are two different terms
with different definitions under the CSA. Compare 21 U.S.C. 802(13)
with 21 U.S.C. 802(44). Had Congress intended to define a "drug traf-
ficking crime" as a drug offense punishable by imprisonment for
more than one year, it easily could have done so.
Although this interpretation does create an odd result, where
Amaya-Portillo’s drug possession offense is a "felony drug offense,"
but not a "felony," under the CSA, we refuse to misread the statute
to create a more consistent result. Moreover, the fact that Section
924(c)(2) is so written provides evidence that Congress "intended to
abandon its general approach of using uniform categorical definition
to identify predicate offenses." Robles-Rodriguez, 281 F.3d at 904.
Finally, our interpretation gives deference to a state’s judgment,
not as to the appropriate punishment, but as to whether the offense is
a felony. We see no reason to conclude that Congress intended the
question of whether simple drug possession is an aggravated felony
to hinge on the amount of imprisonment possible.
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Accordingly, we conclude that a "felony" under the CSA means
"any Federal or State offense classified by applicable Federal or State
law as a felony." Since the offense in the instant case is neither classi-
fied as a felony by Federal or Maryland law, the offense is not a "fel-
ony" under 21 U.S.C. 802(13), nor an "aggravated felony" under
section 2L1.2 of the Sentencing Guidelines. The district court erred
in so finding. We reverse the application of Section 2L1.2(b)(1)(C) of
the Sentencing Guidelines and remand for further proceedings consis-
tent with this opinion.
IV.
For the reasons stated above, the Court will deny the motion for
remand and reverse the ruling of the district court applying the 8 level
increase pursuant to section 2L1.2(b)(1)(C) of the Sentencing Guide-
lines.
REVERSED AND REMANDED
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I fully agree that Amaya-Portillo waived any right to appeal his
sentence on Sixth Amendment grounds. See United States v. Blick,
408 F.3d 162, 170 (4th Cir. 2005). I do not agree, however, with the
majority’s conclusion that a "felony drug offense" is not an "aggra-
vated felony" under U.S.S.G. § 2L1.2. The majority admits that its
interpretation creates an "odd result" in that an offense that qualifies
as a "felony drug offense" is nevertheless not a felony. Ante at 13. In
my view, neither the relevant statutes nor our case law requires such
a result.
The Sentencing Guidelines provide for an eight-level enhancement
for unlawful reentry into the United States when the defendant was
previously deported after "a conviction for an aggravated felony."
U.S.S.G. § 2L1.2(b)(1)(C). Although the term "aggravated felony" is
not defined in § 2L1.2, the application note for that subsection states
that "‘aggravated felony’ has the meaning given that term in [8 U.S.C.
§ 1101(a)(43)]." U.S.S.G. § 2L1.2(b)(1)(C), Application Note 3(A).*
*Application Note 3(A) plainly refers to § 1101(a)(43) to supply a def-
inition for the term "aggravated felony," and the majority’s reliance upon
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Under § 1101(a)(43), the term "aggravated felony" includes "illicit
trafficking in a controlled substance . . . including a drug trafficking
crime (as defined in section 924(c) of title 18, United States Code)."
A "drug trafficking crime" under § 924(c)(2) is "any felony punish-
able under the Controlled Substances Act ["CSA"]." Thus, if cocaine
possession is a felony punishable under the CSA, then it is an "aggra-
vated felony" for purposes of U.S.S.G. § 2L1.2. See United States v.
Wilson, 316 F.3d 506, 512 (4th Cir. 2003).
Because it is undisputed that cocaine possession is punishable
under the CSA, we need only determine whether it "amounts to a fel-
ony within the meaning of section 924(c)(2)." Id. Section 924(c)(2)
does not define the term "any felony." Indeed, as we noted in Wilson,
"[s]ection 924(c)(2) does not contain any internal limitation on its
broad reference to ‘any felony’ other than that such felonies be pun-
ishable under one of the enumerated statutes." 316 F.3d at 513. The
common and ordinary meaning of the word "felony" is "a serious
crime usually punishable by imprisonment for more than one year or
by death." Black’s Law Dictionary (8th ed. 2004). Thus, any offense
punishable by more than one year’s imprisonment qualifies as "any
felony" under § 924(c)(2).
To the extent that the term "any felony" has a specialized meaning
in this context, we should consider relevant definitions in the CSA to
the definition of "felony" in Application Note 2 is misplaced. According
to the majority, the fact that Application Note 3 does not incorporate the
definition of "felony" described in Application Note 2 "indicates that the
Sentencing Commission did not intend for potential punishment to be the
appropriate measure for determining whether a prior offense constitutes
an ‘aggravated felony.’" Ante at 10. I disagree. Application Note 3 indi-
cates nothing more than the Commission’s intention to define "aggra-
vated felony" in a manner consistent with the definition of that term in
another federal statute. Thus, if the majority wishes to say that the term
"aggravated felony" is defined by reference to classification but not
potential punishment, then it must say so on the authority of
§ 1101(a)(43) and not Application Note 2. In any event, nothing in the
definition of "felony" in Application Note 2 excludes consideration of
potential punishment in determining whether an offense is an "aggra-
vated felony" under Application Note 3.
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determine what Congress meant by this term. See Wilson, 316 F.3d
at 513 (stating that "[t]he CSA definition of felony, while not itself
a part of section 924(c)(2), is nevertheless relevant as an interpretive
matter"). The CSA contains two definitions relevant to the issue pre-
sented in this case. First, the CSA defines "felony" as "any Federal
or State offense classified by applicable Federal or State law as a fel-
ony." 21 U.S.C. § 802(13). Second, the CSA 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 for-
eign country that prohibits or restricts conduct relating to narcotic
drugs, marihuana, or depressant or stimulant substances." Id.
§ 802(44).
The majority asserts that our decision in Wilson precludes any con-
sideration of the definition of "felony drug offense" under § 802(44).
I disagree. In Wilson, we addressed the question whether a state law
crime that was both classified as a felony under state law (but not fed-
eral law) and punishable by more than one year’s imprisonment quali-
fied as "any felony" within the meaning of § 924(c)(2). Using the
"clear and unambiguous" definition of "felony" in § 802(13) as inter-
pretive guidance, we held that the state law offense at issue in Wilson
was a felony within the meaning of § 924(c)(2) because the offense
was classified as a felony under state law. 316 F.3d at 513.
Wilson does not address the issue presented here, i.e., whether an
offense that is not classified as a felony but that is punishable by more
than one year’s imprisonment qualifies as "any felony" for purposes
of § 924(c)(2). Nor does Wilson purport to restrict the meaning of
"any felony" to the definition of "felony" in § 802(13). In my view,
the definition of "felony drug offense" in § 802(44) is just as relevant
to the interpretation of "any felony" as the definition of "felony" in
§ 802(13).
The alternate definition of "felony drug offense" in § 802(44) indi-
cates Congress’ understanding that offenses punishable by more than
one year’s imprisonment — whatever their classification — are con-
sidered to be felonies. See also 18 U.S.C. § 3559(a) (describing all
federal offenses punishable by more than one year’s imprisonment as
felonies); Id. § 922(g)(1) (criminalizing possession of a firearm by
any person "who has been convicted in any court of a crime punish-
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able by imprisonment for a term exceeding one year"); U.S.S.G.
§ 2L1.2, Application Note 2 (defining "felony" for certain purposes
to mean any offense "punishable by imprisonment for a term exceed-
ing one year"). Given the purpose of § 924(c) to punish criminals who
use firearms "during and in relation to any . . . drug trafficking crime,"
18 U.S.C. § 924(c)(1)(A), I think it unlikely that Congress intended
to restrict the meaning of "any felony" in § 924(c)(2) to only those
offenses formally classified as felonies. Rather, the term "any felony"
under § 924(c)(2) should include all offenses that are either classified
as felonies or punishable by more than one year’s imprisonment. In
other words, although classification as a felony is sufficient to qualify
an offense as "any felony" under § 924(c)(2), see Wilson, 316 F.3d at
513, it is not necessary.
Under Maryland law, cocaine possession is classified as a misde-
meanor but punishable by up to four years’ imprisonment. See Md.
Code Ann., Crim. Law § 5-601(c)(1) (2005). Because cocaine posses-
sion is punishable by more than one year’s imprisonment, it is "any
felony" under § 924(c)(2) and therefore an "aggravated felony" under
U.S.S.G. § 2L1.2. I would affirm the district court’s application of the
eight-level enhancement.
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