Nolberto Ayon-Robles appeals from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.) applying an eight-level enhancement under United States Sentencing Guidelines § 2L1.2(b)(1)(C) for a prior aggravated felony, arguing that his prior offense--a second state felony conviction for simple possession of a controlled substance--was not an "aggravated felony" under the Guidelines. In Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), we held that a second felony conviction for simple drug possession was not an aggravated felony for purposes of the Immigration and Nationality Act of 1990, 8 U.S.C. § 1101(a)(43)(B). Because the term "aggravated felony" has the same meaning under the Guidelines as under the INA, we vacate the sentence imposed on Ayon-Robles and remand for re-sentencing.
Before: JACOBS, Chief Judge, WESLEY Circuit Judge, and ARCARA, District Judge.*fn1
Nolberto Ayon-Robles pled guilty in the United States District Court for the Northern District of New York to unlawful re-entry by a deported alien in violation of U.S.C. §§ 1326(a) and (b)(2), having previously pled guilty to two state felonies for simple possession of a controlled substance. The district court (McAvoy, J.) determined that Ayon-Robles could have been prosecuted for felony recidivist possession under federal law, and therefore applied an eight-level sentencing enhancement for a prior aggravated felony pursuant to United States Sentencing Guidelines § 2L1.2(b)(1)(C). On appeal, Ayon-Robles argues that a second simple-possession felony is not an aggravated felony for sentencing purposes. Guided by our recent decision in Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), we agree. We therefore vacate the sentence imposed below and remand to the district court for resentencing.
Ayon-Robles, a Mexican national, was arrested in January 2002 following a traffic stop and charged with possession of 11 mg of cocaine. He pled guilty in California state court to felony possession of a controlled substance and was sentenced to three years of probation. In October 2002, police officers found .38 mg of methamphetamine on Ayon-Robles during a lawful search. He was again charged in state court with felony possession of a controlled substance, and was convicted and sentenced to three years of probation. His probation was revoked in July 2005 and he was sentenced to concurrent sixteen-month and two-year terms of imprisonment. He was deported to Mexico in March 2006.
In August 2006, Ayon-Robles was arrested in Delaware County, New York, on suspicion of rape and endangering the welfare of a child. Ayon-Robles admitted to Immigration and Customs Enforcement agents that he had reentered the United States illegally in May of that year. A grand jury returned an indictment charging Ayon-Robles with unlawfully reentering the United States after having previously been deported following conviction of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Although AyonRobles pled guilty to the indictment, he objected to the imposition of an eight-level enhancement at sentencing, arguing that his second state possession offense was not an "aggravated felony" for sentencing purposes because it had not been prosecuted as an offense punishable as a federal felony. The district court rejected Ayon-Robles's argument and applied the eight-level enhancement, imposing a 33-month sentence to be followed by three years of supervised release. This appeal followed.
We review sentences imposed on federal criminal defendants for substantive and procedural reasonableness. United States v. Booker, 543 U.S. 220, 261-62 (2005). When a sentence is imposed with due consideration given to the United States Sentencing Guidelines, we review issues of law de novo. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir. 2005).
The United States Sentencing Guidelines permit an eight-level enhancement for a prior aggravated felony conviction. U.S.S.G. § 2L1.2(b)(1)(C). The Guidelines provide that "aggravated felony" has the same meaning as in the Immigration and Nationality Act of 1990 ("INA").
U.S.S.G. § 2L1.2 cmt. n.3(a). The INA, in turn, defines "aggravated felony" to include "drug trafficking crimes" as defined in Title 18 of the United States Code. 8 U.S.C. § 1101(a)(43)(B). And "drug trafficking crimes" are defined in 18 U.S.C. § 924(c) to include "any felony ...