In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2728
RAFAEL GONZALES-GOMEZ,
Petitioner-Appellee,
v.
DEBORAH ACHIM,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 0189—Marvin E. Aspen, Judge.
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ARGUED JANUARY 4, 2006—DECIDED MARCH 22, 2006
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Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Gonzales-Gomez, a lawful perma-
nent resident of the United States, was convicted in an
Illinois state court of possession of a small quantity of
cocaine. Conviction of a drug offense is (with an immaterial
exception) a ground for removal (deportation). 8 U.S.C.
§ 1227(a)(2)(B)(i). Gonzales-Gomez’s crime was a felony
under Illinois law. Had he been charged under the fed-
eral Controlled Substances Act, however, his crime would
have been only a misdemeanor because it involved only
simple possession. 21 U.S.C. § 844(a). An immigration
judge, seconded by the Board of Immigration Appeals,
2 No. 05-2728
ruled that Gonzales-Gomez’s state felony was a “felony
punishable under the Controlled Substances Act” and
therefore an “aggravated felony” under the Immigra-
tion and Nationality Act. This meant that he could not
seek cancellation of removal, a form of discretionary
relief that permanent residents who have not been convicted
of an “aggravated felony” can seek. 8 U.S.C. § 1229b(a)(3).
So he was ordered removed. He filed a petition for review
with this court, which directed him to refile it as a petition
for habeas corpus in the district court. The court granted
him relief, 372 F. Supp. 2d 1062 (N.D. Ill. 2005), and the
government has appealed. As a result of intervening
legislation, the parties correctly agree that we should treat
the appeal as the government’s response to Gonzales-
Gomez’s original petition for review, Bonhometre v. Gonzales,
414 F.3d 442, 445-46 (3d Cir. 2005), and so we shall, but
without bothering to change the caption.
The circuits that have had occasion to address the ques-
tion whether a state-law felony that would be punishable
only as a misdemeanor by federal law is nevertheless an
“aggravated felony” have split. (Until this case we had not
had occasion to address the question.) Compare United
States v. Hernandez-Avalos, 251 F.3d 505, 507-08 (5th Cir.
2001), and cases cited there, answering “yes,” with Cazarez-
Gutierrez v. Ashcroft, 382 F.3d 905, 909-18 (9th Cir. 2004), and
cases cited there, answering “no.” The “yes” answer, here
urged by the government, is a strained reading of the
statutory language, is inconsistent with the government’s
general position regarding the definition of “aggravated
felony,” is inconsistent with the interest in uniform stan-
dards for removal, and is inconsistent with the legislative
history.
It will help to set forth the chain of statutory provi-
sions that leads the government to the interpretation it
No. 05-2728 3
defends. As we said, conviction of an “aggravated felony”
bars a permanent resident from seeking cancellation of
removal. The immigration statute defines “aggravated
felony” as either “murder, rape, or sexual abuse of a minor,”
or “illicit trafficking in a controlled substance . . ., including
a drug trafficking crime (as defined in section 924(c) of title
18, United States Code).” 8 U.S.C. § 1101(a)(43). Section
924(c)(12) defines “drug trafficking crime” as “any felony
punishable under the Controlled Substances Act.” The
implication of this chain of incorporations is that if you
commit a felony violation of the Controlled Substances Act
you are guilty not just of an ordinary felony, but of an
“aggravated felony.” The government, however, reads “any
felony punishable under the Controlled Substances Act” in
section 924(c) as if the words were “any felony punishable
under the Controlled Substances Act as either a felony or a
misdemeanor.”
In defense of this interpretation (to which we owe
no deference, since Congress has not delegated the interpre-
tation of criminal statutes to the executive branch, Flores v.
Ashcroft, 350 F.3d 666, 671 (7th Cir. 2003)), the government
points to the definitions section of the Controlled Substances
Act. There we read that “the term ‘felony’ means any
Federal or State offense classified by applicable Federal or
State law as a felony.” 21 U.S.C. § 802(13). The fact that
“felony” is defined to include a state felony doesn’t imply,
however, that a state felony is punishable under the Con-
trolled Substances Act. State crimes, as distinct from the acts
constituting the crimes, are not usually punished by federal
law. Federal law punishes bank robberies, as does state law;
but the federal bank robbery statute does not say that
anyone who is convicted of bank robbery in state court is
guilty of a federal offense. 18 U.S.C. § 2113. The Controlled
Substances Act does not purport to punish state drug
4 No. 05-2728
felonies; rather, it indicates that a state felony conviction can
be used to enhance the federal sentence of a defendant
convicted of violating the Act. For example, 21 U.S.C.
§ 841(b)(1) enhances a defendant’s sentence for violating the
Controlled Substances Act if he has a prior conviction for a
felony drug offense; the definition in section 802(13) makes
clear that it can be a conviction for a state felony. There is no
indication that in 18 U.S.C. § 924(c) Congress was legislating
with reference to immigration.
The government points out that the words “any felony
punishable under the Controlled Substances Act” in sec-
tion 924(c) were substituted by a 1988 amendment for
“any felony violation of Federal law involving distribu-
tion, manufacture, or importation of any controlled sub-
stance.” The amendment was intended to clarify that certain
conduct, such as carrying a firearm in a drug offense, that
violated the Controlled Substances Act, would be a basis for
an enhanced sentence pursuant to section 924(c), as had
been unclear under the earlier language. 134 Cong. Rec.
S17360, S17363 (1988) (remarks of Sen. Biden, who was the
chairman of the Senate Judiciary Committee, where the
amendment originated, and who was the principal drafts-
man of the amendment); Cazarez-Gutierrez v. Ashcroft, supra,
382 F.3d at 914-17; Gerbier v. Holmes, 280 F.3d 297, 308-09 (3d
Cir. 2002). There is no hint that commission of a state drug
offense is now to be deemed the commission of a federal
drug offense. A state conviction can enhance punishment
for a federal drug offense; the conviction does not establish
guilt of the federal drug offense.
The government argues that it is too difficult for the
immigration authorities or the courts to determine wheth-
er conduct that resulted in a state felony conviction
would also have been a felony under the Controlled Sub-
No. 05-2728 5
stances Act. Of course in this case it is perfectly obvious,
and conceded, that the alien’s conduct would not have been
a felony under the Act. In other cases the determination may
be more difficult. But in principle the line runs between
someone who possesses illegal drugs for his own consump-
tion and someone who possesses it with intent to sell, and
in practice the line usually is drawn on the basis of quantity.
If the defendant possesses more than would be reasonable
for personal consumption, he is assumed to have intended
to sell it. E.g., United States v. Puckett, 405 F.3d 589, 600-01
(7th Cir. 2005); United States v. Billops, 43 F.3d 281, 285 n. 5
(7th Cir. 1994); United States v. Schneiderhan, 404 F.3d 73, 81
(1st Cir. 2005). So as long as the quantity is known, there is
rarely any mystery about whether the defendant committed
a felony violation of the Act, as well as committing a felony
under state law.
Allowing cancellation of removal to depend on how
severely a particular state punishes drug crimes would have
the paradoxical result of allowing states, in effect, to impose
banishment from the United States as a sanction for a
violation of state law. For then if a state made the possession
of one marijuana cigarette a felony, which it is perfectly
entitled to do, it would be in effect annexing banishment
from the United States to the criminal sanction. States do not
have the power to banish people from the United States.
“[T]he regulation of aliens is so intimately blended and
intertwined with responsibilities of the national government
that where it acts, and the state also acts on the same
subject, ‘the act of Congress, or the treaty, is supreme; and
the law of the State, though enacted in the exercise of
powers not controverted, must yield to it.’ ” Hines v.
Davidowitz, 312 U.S. 52, 66-67 (1941). Congress has acted,
specifying in great detail the grounds on which aliens are
permitted or forbidden to remain in the United States.
6 No. 05-2728
Congress could permit those grounds to vary from state to
state, but it would be unlikely to do so (and it has not done
so), because this would empower the states to determine
matters that are at the heart of the federal immigration laws.
“[O]ver no conceivable subject is the legislative power of
Congress more complete than it is over the admission of
aliens,” Fiallo v. Bell, 430 U.S. 787, 792 (1977); see Gerbier v.
Holmes, supra, 280 F.3d at 312.
The only consistency that we can see in the govern-
ment’s treatment of the meaning of “aggravated felony” is
that the alien always loses. Recall that one of the offenses
that constitute aggravated felonies for purposes of the
immigration statute is “sexual abuse of a minor.” The
government’s position, which we and other courts have
endorsed, is that whether a particular offense con-
stitutes “sexual abuse of a minor” for purposes of classifica-
tion as an aggravated felony is a matter of federal law rather
than state law. Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.
2005); Lara-Ruiz v. INS, 241 F.3d 934, 940-42 (7th Cir. 2001);
Parrilla v. Gonzales, 414 F.3d 1038, 1040-42 (9th Cir. 2005);
Bahar v. Ashcroft, 264 F.3d 1309, 1311-12 (11th Cir. 2001);
Mugalli v. Ashcroft, 258 F.3d 52, 56-60 (2d Cir. 2001); Emile v.
INS, 244 F.3d 183, 185-86 (1st Cir. 2001). Even if the state has
decided that a particular form of such abuse is a misde-
meanor, the immigration authorities can redefine it as a
felony, indeed as an aggravated felony. Such redefinition
serves the interest in national uniformity of the standards
for removability by forbidding states to decide, by their
classification of a crime as a misdemeanor or a felony, who
shall be removable. This case is the mirror image. If states
cannot be permitted by exercising unusual leniency to spare
criminals from banishment, neither should they be permit-
ted by unusual severity to condemn criminals to banish-
ment.
No. 05-2728 7
We are mindful of cases that hold that when used
to enhance a sentence the Controlled Substances Act
does not require a finding that the state felony could
have been punished as a (federal) felony under the Act.
United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th
Cir. 2000); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-
65 (1st Cir. 1996). As noted in United States v. Palacios-Suarez,
418 F.3d 692, 698-99 (6th Cir. 2005), these decisions are
based on a since-superseded sentencing guideline, and their
current validity is in doubt. But even if they remain valid,
no issue of disuniformity in the application of federal
immigration law is presented by a sentence enhancement;
and we saw earlier that there is no indication that the 1988
amendment that generates the issue in this case was con-
cerned with regulating immigration.
The petition for review is granted, and the case re-
turned to the Board of Immigration Appeals for further
proceedings consistent with this opinion.
8 No. 05-2728
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-22-06