UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JEAN CLAUDE SIMON, DEFENDANT-APPELLANT

11th Cir. | 1999-03-04
No. 97-5994
Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges.
168 F.3d 1271 Court of Appeals for the Eleventh Circuit (1999) Positive Treatment
Cited by 6 cases

Opinion of the Court
BLACK, Circuit Judge:

BLACK, Circuit Judge: Appellant Jean Claude Simon appeals his sentence for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a).

Appellant asserts that the district court erred in imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A) (1997).

He contends that the term “aggravated felony” as used in that section does not include his prior Florida felony conviction for possessing cocaine.

We review the district court’s interpretation of the Sentencing Guidelines de novo.

United States v. Bozza, 132 F. 3d 659, 661 (11th Cir.1998).

Section 2L1.2(b)(l)(A) of the 1997 Sentencing Guidelines provides for a 16-level enhancement if the defendant previously was deported after a conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(l)(A) (1997).

The commentary to Section 2L1.2(b)(l)(A) defines “aggravated felony” as it is defined in 8 U.S.C. § 1101(a)(43), which, in turn, defines “aggravated felony” in Section 1101(a)(43)(B) to include a “drug trafficking crime (as defined in section 924(c) of Title 18).” U.S.S.G. § 2L1.2, comment (n. 1) (1997).

Section 924(c) defines the term “drug trafficking crime” to include “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.).” 18 U.S.C. § 924(c)(2).

We agree with the other circuits that have addressed this question that for a drug offense to come within 18 U.S.C. § 924(c)(2), and hence to fit within the definition of aggravated felony, two criteria must be met: (1) the offense must be punishable under one of the three enumerated statutes, and (2) the offense must be a felony.

See United States v. Restrepo-Aguilar, 74 F. 3d 361, 364 (1st Cir.1996); United States v. Polanco, 29 F. 3d 35, 38 (2d Cir.1994); United States v. Hinojosa-Lopez, 130 F. 3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F. 3d 308, 309-310 (8th Cir.1997); United States v. Garcia-Olmedo, 112 F. 3d 399, 400-401 (9th Cir.1997); United States v. Cabrera-Sosa, 81 F. 3d 998, 1000 (10th Cir.1996).

Appellant does not dispute the first criterion.

The Controlled Substances Act (CSA) provides that possession of cocaine is a punishable offense, albeit as a misdemeanor. 21 U.S.C. § 844(a).

Appellant does dispute the second criterion, contending that his pri-or conviction is not an “aggravated felony” because it is only a misdemeanor offense under the CSA. Id.

He reads 18 U.S.C. § 924(c)(2) to define “drug trafficking crime” as any offense punishable as a felony under the CSA. Simon ignores the plain language of the CSA which defines a felony as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13); see also 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.”).

Since Appellant was convicted of possession of cocaine, a third-degree felony under Florida law, he has committed a felony for purposes of Section 924(c)(2).

The district court therefore correctly imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A).

AFFIRMED. .

We apply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing, 18 U.S.C. § 3553(a)(4)-(5), unless a more lenient punishment would result under the Guidelines version in effect on the date the offense was committed.

United States v. Wilson, 993 F. 2d 214, 216 (11th Cir.1993) (internal citations omitted).

We therefore apply the 1997 version of the Sentencing Guidelines, which was in effect at the time of sentencing on December 11, 1997, instead of the 1995 Sentencing Guidelines in effect at the time of Simon’s offense on May 27, 1997, because the same punishment would result under both versions of the Guidelines. .

Simon also contends that the state law definition of drug "trafficking” does not include his prior conviction for simple possession of cocaine.

Smith’s argument is meritless because trafficking crimes are defined under the CSA and federal, not state, definitions govern under the Guidelines.

See United States v. Tamayo, 80 F. 3d 1514, 1523 (11th Cir.1996).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Lopez v. Gonzales, 549 U.S. 47 (U.S. 2006)
    …removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10 1996) (same); United States v. Restr…
  • United States v. Gibson, 434 F.3d 1234 (11th Cir. 2006)
    …pply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing ... unless a more lenient punishment would result under the Guidelines version in effect on the date the offense was committed.” United States v. Simon, 168 F. 3d 1271, 1272 (11th Cir.1999) (citations omitted). Accordingly, we will refer to the 2002 version of the Sentencing Guidelines when discussing Gibson’s original sentence (imposed on December 6, 2002), the 2003 version when discussing the sentence that is t…
  • United States v. Simmons, 368 F.3d 1335 (11th Cir. 2004)
    …here those Guidelines would lead to imposition of a harsher penalty than that to which the defendant was subject at the time of the offense. In such cases, the Guidelines applicable at the time of the offense must be applied. United States v. Simon, 168 F. 3d 1271, 1272 n. 1 (11th Cir.1999) (“We apply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing, unless a more lenient punishment would result under the Guidelines version in effect on the date the offense was commi…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw