Omar Fernandez v. Eric Holder, Jr.

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 06-3476, 06-3987 & 06-3994

O MAR C. F ERNANDEZ, F LORENCIO V ICTOR
JIMENEZ-M ATEO, and JULIO C ALDERON,
Petitioners,
v.

M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.

Petitions for Review from Decisions
of the Board of Immigration Appeals
Nos. A43-771-790, A14-833-354
and a Final Administrative Order of the
Office of Immigration and Customs Enforcement
No. A70-563-201

A RGUED O CTOBER 30, 2007—D ECIDED S EPTEMBER 15, 2008

Before M ANION, R OVNER, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Petitioners Florencio Victor
Jimenez-Mateo, Julio Calderon, and Omar Cendejas-
Fernandez (collectively “petitioners”) were ordered
removed from this country. The orders of removal were
2 Nos. 06-3476, 06-3987 & 06-3994

based on findings that petitioners’ most recent state-court
convictions for drug possession offenses constituted
aggravated felonies under § 101(a)(43)(B) of the Immigra-
tion and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B),
because each of the petitioners had previously been
convicted of a controlled substance offense. The peti-
tioners have filed timely petitions for review in this court.
They assert that their first and second state-court convic-
tions for simple drug possession cannot amount to an
“aggravated felony” under § 101(a)(43)(B) of the INA.
Because we have already found in United States v. Pacheco-
Diaz, 506 F.3d 545 (7th Cir. 2007), that such convictions
do constitute an “aggravated felony” under § 101(a)(43)(B)
of the INA, we deny their petitions for review.

I.
We briefly summarize the facts and procedural history
of each of the petitioners’ cases below.

A. Julio Calderon
Calderon is a citizen of Mexico who entered the United
States illegally. He is also a documented member of the
Latin Kings street gang, a national criminal organization
based in Chicago. See generally United States v. Olson, 450
F.3d 655, 661-62 (7th Cir. 2006) (describing the organiza-
tion of the Latin Kings). As one might expect of a member
of the Latin Kings, Calderon has had several run-ins with
the law. Most relevant to this opinion, however, are
Calderon’s convictions for marijuana possession: an
Nos. 06-3476, 06-3987 & 06-3994 3

October 30, 2002 conviction for marijuana possession
in violation of 720 ILCS 550/4(a), and an August 8, 2006
conviction for two counts of marijuana possession in
violation of 720 ILCS 550/4(a) and (b).
In October 2006, the Department of Homeland Security
(“DHS”) initiated removal proceedings against Calderon.
DHS charged that Calderon was subject to removal under
§ 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii),
for having been convicted of an aggravated felony as
defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43).
DHS listed Calderon’s three marijuana possession
offenses as the basis for the aggravated felony charge. On
November 8, 2006, DHS issued a final administrative
removal order finding that Calderon was an aggravated
felon and ordering him removed from the United States
to Mexico. Calderon timely filed a petition for review of
DHS’s order in this court.

B. Omar Cendejas-Fernandez (“Fernandez”)
Fernandez is a citizen of Mexico who was admitted to the
United States as a lawful permanent resident in 1992. On
September 28, 2001, Fernandez was convicted of two
counts of cocaine possession in violation of 720 ILCS
570/402(c). On November 7, 2005, Fernandez again was
convicted of cocaine possession in violation of 720 ILCS
570/402(c).
On March 29, 2006, DHS initiated removal proceedings
against Fernandez. DHS charged that Fernandez was
removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
4 Nos. 06-3476, 06-3987 & 06-3994

§ 1227(a)(2)(A)(iii), for having been convicted of an aggra-
vated felony as defined in § 101(a)(43)(B) of the INA,
8 U.S.C. § 1101(a)(43)(B). Fernandez was ordered to
appear before an Immigration Judge (“IJ”). After a hearing
on May 22, 2006, the IJ issued an oral decision ordering
that Fernandez be removed to Mexico. In reaching that
decision, the IJ first cited this court’s decision in Ali v.
Ashcroft, 395 F.3d 722 (7th Cir. 2005), wherein we
stated that any alien who has been convicted of a state
controlled substance offense that is also a felony punish-
able under the Controlled Substances Act (“CSA”) has, for
immigration purposes, been convicted of an aggravated
felony. The IJ then noted that Fernandez had been con-
victed of possessing a controlled substance in 2005 after a
previous conviction for possessing a controlled substance
in 2001. Because § 844(a) of the CSA, 21 U.S.C. § 844(a),
makes drug possession punishable by more than one year
of imprisonment—and hence a felony, see 18 U.S.C.
§ 3559(a)(5)—for those who have previously been con-
victed of a controlled substance offense, the IJ found by
clear and convincing evidence that Fernandez had been
convicted of an aggravated felony and was removable on
that basis. In addition, the IJ found Fernandez statutorily
ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(a)(3).
Fernandez appealed the IJ’s decision to the Board of
Immigration Appeals (“Board”). He argued that the IJ
should not have found that his convictions qualified as
an aggravated felony. The Board, however, agreed with
the IJ that a state offense for possession of a controlled
substance that occurred after a prior drug conviction
Nos. 06-3476, 06-3987 & 06-3994 5

qualified as a “drug trafficking crime” under
§ 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B),
because, under § 844(a) of the CSA, the most recent con-
viction would be defined as a felony. Consequently, the
Board affirmed the IJ’s decision. Fernandez filed a timely
petition in this court for review of the Board’s decision.

C. Florencio Victor Jimenez-Mateo (“Mateo”)
Mateo is a citizen of the Dominican Republic who was
admitted to the United States on an immigrant visa in
October 1966. On December 23, 1989, Mateo was con-
victed of possessing a controlled substance in violation
of New York Penal Law § 220.03. On April 26, 2002, Mateo
was convicted of attempted possession of a controlled
substance in violation of 720 ILCS 5/8-4. On April 12,
2006, Mateo received his third controlled-substance
conviction, this time for possession of a controlled sub-
stance in violation of 720 ILCS 570/402(c).
After his conviction in April 2006, DHS filed a notice to
appear charging that Mateo was removable under
§ 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)(I),
because of his April 2006 conviction for possession of a
controlled substance. At a hearing before an IJ, Mateo
through counsel conceded that he was removable as
charged, but sought cancellation of removal. In an oral
decision, the IJ found that Mateo was removable from
the United States as an alien convicted of a controlled
substance violation. The IJ also found that Mateo was
statutorily ineligible for cancellation of removal because
he had been convicted of an aggravated felony. In particu-
6 Nos. 06-3476, 06-3987 & 06-3994

lar, the IJ classified Mateo’s 2006 drug possession offense
as an aggravated felony, since that offense occurred after
Mateo had been convicted previously of two controlled
substance offenses. Mateo appealed the IJ’s aggravated
felony finding to the Board, but the Board affirmed the
IJ’s decision. Mateo then filed a timely petition for
review of the Board’s order affirming the IJ.

II.
The sole issue on this appeal is whether the second (or,
as is the case with Mateo, third) of each of the petitioners’
multiple state-court convictions for drug possession was
accurately characterized as an aggravated felony under
§ 101(a)(43)(B) of the INA. Section 101(a)(43) of the INA
provides an extensive list of crimes that qualify as aggra-
vated felonies. Specifically, subsection 101(a)(43)(B) adds
“illicit trafficking in a controlled substance . . . including
a drug trafficking crime (as defined in section 924(c) of
Title 18) . . . whether in violation of Federal or State law” to
that list. 8 U.S.C. § 1101(a)(43). Section 924(c), in turn,
defines the term “drug trafficking crime” as, among other
things, “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C.
§ 924(c)(2). As the Supreme Court has stated, a state drug
offense is considered “analogous” to a “felony punishable
under the Controlled Substances Act,” and, as a result, an
aggravated felony for purposes of the INA, “only if it
proscribes conduct punishable as a felony under that
federal law.” Lopez v. Gonzales, 127 S. Ct. 625, 632 n.8, 633
(2006).
Nos. 06-3476, 06-3987 & 06-3994 7

In this case, the petitioners argue that their state con-
victions were wrongly classified as aggravated felonies
because the state statutes under which they were convicted
only proscribe simple possession, which is not a felony
under the CSA. In response, the government contends
that the petitioners’ most recent convictions for drug
possession are analogous to what the courts refer to as
“recidivist possession” under 21 U.S.C. § 844(a), which is
a felony under the CSA, because those convictions were
preceded by at least one prior drug possession convic-
tion. The pertinent portion of § 844(a) states:
It shall be unlawful for any person knowingly or
intentionally to possess a controlled substance. . . . Any
person who violates this subsection may be sentenced
to a term of imprisonment of not more than 1 year, and
shall be fined a minimum of $1,000, or both, except
that if he commits such offense after a prior convic-
tion under this subchapter or subchapter II of this
chapter, or a prior conviction for any drug, narcotic, or
chemical offense chargeable under the law of any
State, has become final, he shall be sentenced to a term
of imprisonment for not less than 15 days but not
more than 2 years, and shall be fined a minimum of
$2,500 . . . .
21 U.S.C. § 844(a). The second sentence in the portion of
§ 844(a) quoted above transforms what would ordinarily
be a misdemeanor offense for simple possession into a
felony where the current offense was preceded by a prior
conviction for a controlled substance offense. However, for
the government to obtain a felony conviction under
8 Nos. 06-3476, 06-3987 & 06-3994

§ 844(a), it has to, pursuant to 21 U.S.C. § 851, file notice of
the prior conviction and, if challenged, prove to the judge
the existence of the prior conviction beyond a reasonable
doubt. The petitioners therefore counter the government’s
argument by asserting that the Illinois statutes under
which the petitioners were most recently convicted are
not the state “counterparts” to a felony violation of
§ 844(a), since none of those statutes required the state of
Illinois to give notice of the petitioners’ prior convictions
or prove the existence of those convictions, as § 851
would have required had petitioners been prosecuted in
federal court. While Illinois law does provide for a sen-
tencing enhancement for recidivist drug possession, 720
ILCS 570/408(a), none of the petitioners’ sentences for
their most recent possession offenses was enhanced
under that provision.1 Thus, the real question in this
case is whether an alien’s second (or subsequent) state
conviction for simple drug possession amounts to an
aggravated felony in terms of a “felony punishable
under the Controlled Substances Act” when the state
did not treat the alien as a recidivist.
In this circuit, that question has already been answered,
albeit in a different context. Just before oral argument in
this case, this court decided United States v. Pacheco-Diaz
(Pacheco I), 506 F.3d 545 (7th Cir. 2007). In Pacheco I, this
court addressed the question of whether an alien’s

1
Illinois law requires that the defendant be given notice of the
state’s intention to seek such an enhancement in the charge.
725 ILCS 5/111-3(c).
Nos. 06-3476, 06-3987 & 06-3994 9

second state conviction for simple possession of marijuana
constituted an aggravated felony for purposes of determin-
ing a sentencing enhancement under § 2L1.2(b)(1)(C) of the
U nited States Sen te n c in g G u id elines. 2 Section
2L1.2(b)(1)(C) of the guidelines instructs a sentencing
court to enhance a defendant’s offense level eight levels
if the defendant previously was deported after a convic-
tion for an aggravated felony. The application notes to
§ 2L1.2 explain that, for purposes of subsection (b)(1)(C),
the term “aggravated felony” has the same meaning as
given in § 101(a)(43) of the INA. U.S.S.G. § 2L1.2 applica-
tion note 3(A) (2007). The district court had found that the
sentencing enhancement applied because, among other
things, Pacheco-Diaz’s January 2002 conviction for mari-
juana possession, following as it did an October 2000
conviction for marijuana possession, would be treated as
a federal felony under the recidivist enhancement provi-
sion of 21 U.S.C. § 844(a). Pacheco I, 506 F.3d at 548.
This court in Pacheco I agreed with that reasoning. In
our opinion, we first referenced footnote six of the Su-
preme Court’s opinion in Lopez v. Gonzales, wherein the
Supreme Court noted that Congress had indeed classified
a § 844(a) felony offense as “illicit trafficking,” thus bring-
ing that offense within the definition of an aggravated
felony under § 101(a)(43)(B) of the INA. Pacheco I, 506 F.3d
at 548. We recognized that a circuit split existed in the

2
Pacheco-Diaz had been convicted of reentering the United
States after previously having been deported, in violation of
8 U.S.C. §§ 1326(a) and (b)(2). Pacheco I, 506 F.3d at 547.
10 Nos. 06-3476, 06-3987 & 06-3994

sentencing context regarding the treatment of § 844(a)
with respect to the INA’s aggravated felony definition.
We sided with those circuits that analogized a second
state conviction for drug possession to § 844(a) when
determining whether that state conviction constituted an
aggravated felony for purposes of the sentencing guide-
lines. Id. at 549 (citing United States v. Palacios-Suarez, 418
F.3d 692, 700 (6th Cir. 2005); United States v. Sanchez-
Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005); United States
v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002)). “Had Pacheco
been charged in federal court with his second drug posses-
sion charge,” we stated, “he would have been eligible
for a recidivist enhancement under section 844(a).” Id. at
550. The second state possession conviction was
analogous to a felony under the CSA because § 844(a)
would have exposed Pacheco to a possible sentence of
imprisonment of two years had it been charged in federal
court. That made the conviction analogous to a “drug
trafficking crime” under § 924(c), and, as a consequence,
an aggravated felony under § 101(a)(43)(B) of the INA. Id.
Pacheco later petitioned for rehearing. Citing the oral
argument in this case, Pacheco argued that rehearing
should be granted because he had raised the same argu-
ment that petitioners raise here, namely, that a second
state drug-possession offense cannot be treated as a
federal felony under § 844(a) when the alien was not
charged in state court as a recidivist. The opinion in Pacheco
I, Pacheco asserted, overlooked that argument. Pacheco
also argued that this court in Pacheco I did not fully con-
sider the application of the Supreme Court’s decision
in Lopez v. Gonzales, 127 S. Ct. 625 (2006), in rendering
Nos. 06-3476, 06-3987 & 06-3994 11

its decision. Finally, Pacheco argued that rehearing
should be granted because two other circuits had decided
the issue differently after Pacheco I had been submitted.
We denied Pacheco’s motion for rehearing. United States
v. Pacheco-Diaz (Pacheco II), 513 F.3d 776 (7th Cir. 2008) (per
curiam). This court was not swayed by the fact that
Pacheco’s Illinois convictions were not based on that
state’s recidivist statute. Lopez, we said, held that classifica-
tion of an offense for the purpose of § 101(a)(43) depends
on how the defendant’s conduct would be treated under
federal law:
If the conduct of which the defendant has been con-
victed would be a felony under federal law, then it
comes within [§ 101(a)(43) of the INA] if it meets that
statute’s requirements concerning the subject-matter
of the crimes and the length of the sentence. . . . In a
hypothetical-federal-felony approach, it does not
matter whether the defendant was charged in state
court as a recidivist; indeed, it does not matter
whether the state has a recidivist statute in the first
place. What provides the classification under
[§ 101(a)(43)] is federal rather than state law.
Id. at 778-79. We concluded: “Looking at the conduct
reflected in the state convictions, as opposed to the
precise state crime charged, is the only way to implement
the hypothetical-federal-felony view that Lopez adopted
as its holding.” Id. at 779.
Shortly after oral argument, we ordered supplemental
briefing on the application of Pacheco I to this case. In
12 Nos. 06-3476, 06-3987 & 06-3994

their supplemental brief, the petitioners make several
arguments as to why Pacheco I does not apply to this case,
all of which we reject. First, the petitioners argue that
Pacheco I does not apply because it was a sentencing case,
while this is an immigration case. In support of that
argument, petitioners point out that this court in Pacheco I
cited only sentencing cases from other circuits on
the question of whether a second state possession con-
viction amounted to an aggravated felony; no reference
was made to any of the immigration cases dealing with
this issue. Compare Pacheco I, 506 F.3d at 549 (citing sen-
tencing cases that have dealt with this issue), with In re
Carachuri-Rosendo, 24 I&N Dec. 382, 385 (BIA 2007) (en
banc) (citing both immigration and sentencing cases). The
lack of citations to immigration cases in Pacheco I is insig-
nificant. We interpret the identical statutory provisions
in this case as the court did in Pacheco I. Our interpreta-
tion of the same statutes should be consistent, regardless
of the context. See Clark v. Martinez, 543 U.S. 371, 378
(2005) (“To give these same [statutory] words a different
meaning for each category [of aliens] would be to invent
a statute rather than interpret one.”); see also Leocal v.
Ashcroft, 543 U.S. 1, 12 n.8 (2004) (stating that statute
must be interpreted consistently whether it is encoun-
tered in a criminal or an immigration context).
Relying on dicta in Gonzales-Gomez v. Achim, 441 F.3d
532, 535-36 (7th Cir. 2006), petitioners nevertheless
insist that immigration cases call for a different inter-
pretation of the aggravated felony definition than sen-
tencing cases. The dicta in Gonzales-Gomez to which
petitioners refer was made in the context of distin-
Nos. 06-3476, 06-3987 & 06-3994 13

guishing sentencing decisions in other circuits from
holdings in this court. Regardless of what was said in
Gonzales-Gomez, any distinction between sentencing
and immigration for purposes of interpreting identical
provisions of the aggravated felony definition is fore-
closed after the Supreme Court’s decision in Lopez v.
Gonzales, 127 S. Ct. 625 (2006). In Lopez, the Supreme Court
drew no distinction between sentencing cases and immi-
gration cases. Though Lopez itself was an immigration
case, the Supreme Court cited—and its opinion abro-
gated—lower court sentencing cases. See Lopez, 127 S. Ct.
at 629 n.3 (citing, among other sentencing cases, United
States v. Wilson, 316 F.3d 506 (4th Cir. 2003), and United
States v. Simon, 168 F.3d 1271 (11th Cir. 1999)). Thus, the
Court clearly signaled that it meant any interpretation of
§ 101(a)(43) of the INA to apply uniformly, regardless of
the context.
Second, petitioners cite the Board’s decisions in In re
Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), and In re
Thomas, 24 I&N Dec. 416 (BIA 2007), as a reason to distin-
guish Pacheco I. Those cases were decided after the
Pacheco I opinion was released. In them, a majority of
the Board held that, absent controlling federal circuit
precedent to the contrary, an alien’s state conviction
for simple possession of a controlled substance “will not
be considered an aggravated felony conviction on the
basis of recidivism unless the alien’s status as a recidivist
drug offender was either admitted by the alien or deter-
mined by a judge or jury in connection with a prosecution
for that simple possession offense.” Carachuri, 24 I&N Dec.
at 394. Board Member Roger Pauley filed a concurring
14 Nos. 06-3476, 06-3987 & 06-3994

opinion in Carachuri, joined by Acting Vice Chairman
Gerald Hurwitz, taking the opposite view. See id. at 400.
We fail to see how the Board’s decision to spurn Pacheco
I affects the outcome in this case. This court in Pacheco II
was unconcerned about the Board’s about-face in Carachuri.
We not only explicitly stated in Pacheco II that we
agreed with the reasoning of Board Member Pauley’s
concurring opinion, but also that we disagreed with
the majority of the Board’s conclusion that a state posses-
sion offense could only be an aggravated felony if the
alien was treated as a recidivist in state court. 3 Pacheco II,
513 F.3d at 778. We see no reason to deviate from that view.
Next, the petitioners argue that Pacheco I should not
apply here because the court in Pacheco I was not pre-
sented with what, according to the petitioners, is the “key
legal issue” raised in this case, namely, “whether an
immigrant who was not charged and convicted as a
recidivist in criminal court” can nevertheless be labeled
an aggravated felon. Petitioners argue that Lopez mandates
a “strict categorical approach” that allows courts to
examine only what the state statutory offense under
which the immigrant was charged proscribes when
determining whether federal law defines the offense as
a felony. See Taylor v. United States, 495 U.S. 575, 602 (1990).
Because none of the petitioners was charged as a

3
Judge Rovner dissented in Pacheco II and, citing the majority
of the Board’s decision in Carachuri, stated that she believed the
approach this court took in Pacheco I may have been mistaken.
Pacheco II, 513 F.3d at 781 (Rovner, J., dissenting).
Nos. 06-3476, 06-3987 & 06-3994 15

recidivist in state court, petitioners argue that their state
possession offenses cannot be treated as “analogous” to
recidivist possession under § 844(a) for purposes of the
aggravated felony definition.
There are two problems with that line of argument. First,
arguably raised in both Pacheco’s initial and reply briefs,4
it was treated by the court in the passages of the Pacheco II
opinion we have quoted above. Second, and more impor-
tantly, it does not survive scrutiny on the merits. Ordi-
narily, in order to determine whether a state offense is
“analogous” 5 to a federal offense listed in the INA’s
definition of an aggravated felony, this court and others
categorically compare the elements of the state offense
with the elements of the federal offense. See, e.g., Gonzales
v. Duenas-Alvarez, 127 S. Ct. 815, 818-19 (2007); see also
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005). We
explained the operation of the so-called “categorical”
approach in Gattem: “one looks to the elements of the
state offense in question and, where necessary, to the
charging document pursuant to which the petitioner

4
See Brief of Defendant-Appellant at 27-29, United States v.
Pacheco-Diaz, No. 05-2264 (7th Cir. May 8, 2006); Reply Brief of
Defendant-Appellant at 2-6, United States v. Pacheco-Diaz, No. 05-
2264 (7th Cir. Sept. 22, 2006).
5
“Analogous” is the term that was used by the Supreme Court
for determining whether a state offense, when compared to a
federal offense listed in § 101(a)(43) of the INA, qualifies as
an aggravated felony. Lopez, 127 S. Ct. at 632 n.8 (citing Matter
of Barrett, 20 I&N Dec. 171, 178 (BIA 1990)).
16 Nos. 06-3476, 06-3987 & 06-3994

was convicted, to determine whether the offense corre-
sponds to one of the crimes described as aggravated
felonies in the INA.” 412 F.3d at 765.
While that approach works for many cases, applying a
strict categorical approach in this case does not resolve
the issue of whether the petitioners’ multiple drug
offenses qualify as aggravated felonies. The elements of
the Illinois possession offenses the petitioners committed
and the elements of both a felony and a misdemeanor
violation of § 844(a) are the same. Compare United States v.
Stone, 139 F.3d 822, 834 (11th Cir. 1998) (describing ele-
ments of a § 844(a) possession offense), with People v.
Frieberg, 589 N.E.2d 508, 524 (Ill. 1992) (describing elements
of a violation of 720 ILCS 570/402), People v. Davis, 519
N.E.2d 103, 105 (Ill. App. Ct. 1988) (describing elements
of Illinois offense of possession of a controlled sub-
stance), and 2 Illinois Pattern Jury Instruction-Criminal
17.02 (4th ed. 2000) (describing elements of possession of
cannabis in violation of 720 ILCS 550/4). Recidivism is the
key ingredient in differentiating between a felony and a
misdemeanor offense for drug possession under federal
law. However it is not an element of the offense of drug
possession, but instead is simply a penalty provision. It
enhances the maximum possible sentence for a drug
possession offense from one to two years if the defendant
commits the offense after a prior conviction for a con-
trolled substance offense has become final. See 21 U.S.C.
§ 844(a); see also Almendarez-Torres v. United States, 523 U.S.
224, 244 (1998) (“Congress . . . has never, to our knowledge,
made a defendant’s recidivism an element of an offense
where the conduct proscribed is otherwise unlawful.”);
Nos. 06-3476, 06-3987 & 06-3994 17

Stone, 139 F.3d at 834. Thus, the fact that the state offense
of conviction did not contain a recidivist element is irrele-
vant. What makes a state offense for drug possession
analogous to a federal felony (and thus an aggravated
felony) as opposed to a federal misdemeanor is the height-
ened penalty for recidivism, which is not an element of
the offense.
The dissent points out that Justice Thomas’s concurrence
in Apprendi signals that Almendarez-Torres may not be the
law of the land much longer. Infra at 38 n.3. But until
the Supreme Court explicitly overrules that case, we are
bound by it. See United States v. Hendrix, 509 F.3d 362, 375
(7th Cir. 2007) (“[W]e have held that unless and until
the Supreme Court chooses to overrule Almendarez-Torres,
we are bound by it.” (citing cases)); see also Calloway v.
Montgomery, 512 F.3d 940, 946 (7th Cir. 2008) (“Almendarez-
Torres still lives.”); see generally Saban v. U.S. Dep’t of Labor,
509 F.3d 376, 378 (7th Cir. 2007) (“The Supreme Court
has told the lower courts that they are not to anticipate
the overruling of a Supreme Court decision, but are to
consider themselves bound by it until and unless the
Court overrules it, however out of step with current trends
in the relevant case law the case may be.”). Almendarez-
Torres, along with the language and structure of § 844(a),
makes clear that the heightened penalty for recidivism
is not an element of a § 844(a) offense. Because recidivism
is not an offense element, a categorical comparison of the
elements of § 844(a) and the petitioners’ most recent
state possession offenses is inconclusive.
Although the categorical approach does not settle the
matter, Lopez does. The Supreme Court in Lopez held that
18 Nos. 06-3476, 06-3987 & 06-3994

a state drug felony was not an aggravated felony where
the conduct proscribed by the state felony would have
only been penalized as a misdemeanor under federal law.
According to Lopez, what counts is the classification of the
analogous federal offense as a felony. The state’s deci-
sion to classify the offense as a felony or a misdemeanor
is beside the point. See Lopez, 127 S. Ct. at 632-33 (“We
cannot imagine that Congress took the trouble to incorpo-
rate its own statutory scheme of felonies and misdemean-
ors if it meant courts to ignore it whenever a State chose
to punish a given act more heavily.”).
In this case, the increased penalty that converts a
simple misdemeanor offense for drug possession into a
felony, like the lesser penalty for the offense that was the
subject of Lopez, 127 S. Ct. at 628, is purely a matter of
federal law. Again, Lopez tells us that, when it comes to
determining the consequences of a state offense for pur-
poses of federal immigration law, federal law, not state
law, counts. While the state of Illinois conceivably could
have enhanced the petitioners’ state sentences under the
Illinois provision similar to § 844(a),6 that is beside the
point. The question is whether the petitioners would
have been subject to the increased penalty for having
committed a prior drug offense had they been charged
in federal court. As none of the petitioners disputes the
existence of their prior convictions, the answer to that
inquiry here must be “yes”; the petitioners’ most recent
state possession offenses are therefore properly classified
as aggravated felonies.

6
See 720 ILCS 570/408(a).
Nos. 06-3476, 06-3987 & 06-3994 19

What the petitioners really object to, of course, is this
court looking at the petitioners’ prior drug convictions
in order to determine that their most recent convictions
constitute aggravated felonies. They say that our going
beyond the record of the most recent state offense is not
allowed by Lopez, and that we are in effect “retrying” those
offenses by doing so. But transcending the state offense
in order to determine its analogous federal counterpart is
exactly what the aggravated felony statute and Lopez
require. Section 101(a)(43) of the INA states that the term
aggravated felony “applies to an offense described in this
paragraph whether in violation of Federal or State law.”
8 U.S.C. § 1101(a)(43). In order to determine if a state
offense is “described” by a federal offense incorporated
into § 101(a)(43), we necessarily have to view the state
offense through the lens of federal law, since “it is just
not plausible that Congress meant to authorize a State to
overrule its judgment about the consequences of federal
offenses to which its immigration law expressly refers.”
Lopez, 127 S. Ct. at 633.
Moreover, going beyond the fact of the most recent
possession conviction to make that determination is
entirely consistent with Taylor v. United States, 495 U.S. 575
(1990). In Taylor, the Court adopted a “modified” categori-
cal approach, under which, where a defendant was con-
victed of a state law burglary offense that was broader
than the generic definition of burglary, a sentencing
court could “go beyond the mere fact of conviction” to
determine whether the “jury was actually required to find
all the elements of generic burglary.” Taylor, 495 U.S. at
602. Thus, where a state statute permitted a defendant to
20 Nos. 06-3476, 06-3987 & 06-3994

be convicted of burglary for stealing from a place other
than a building (such as an automobile), the government
could still use that conviction for purposes of obtaining
an enhancement under the Armed Career Criminal Act if
it could show, from the charging document and the
jury instructions, that the defendant was actually con-
victed of stealing from a building (and not an auto-
mobile). Id.7
This case is simply a corollary application of the ap-
proach explicitly recognized as permissible in Taylor. Here,
because the definition of the Illinois possession offenses
un d er w hic h p etitioners w ere con victed are
overbroad—i.e., conduct punishable under those Illinois
statutes could constitute either a federal misdemeanor
or federal felony, depending on whether those offenses
occurred after a previous drug conviction became fi-
nal—we must look at the records of the petitioners’ prior
convictions to determine the federal consequences of the
petitioners’ offenses. Importantly, in so doing, we, consis-
tent with Taylor, need not delve into the underlying facts
of the petitioners’ state convictions. See Taylor, 495 U.S. at
600 (“Congress intended the sentencing court to look only

7
In Shepard v. United States, 544 U.S. 13 (2005), the Court
extended that approach to the context of guilty pleas, holding
that a sentencing court may consider “the terms of the charging
document, the terms of a plea agreement or transcript of [a
plea] colloquy between judge and defendant [or] some com-
parable judicial record” in determining whether the defendant
actually pleaded guilty to, and was convicted of, generic
burglary. Id. at 26.
Nos. 06-3476, 06-3987 & 06-3994 21

to the fact that the defendant had been convicted of crimes
falling within certain categories, and not to the facts
underlying the prior convictions.”); Pacheco II, 513 F.3d
at 778-79.
The dissent is rightly concerned with the danger of
“hypothetical ‘what-ifing.’ ” Infra at 31-32. But that concern
is not present in this case. In finding that the petitioners’
state court offenses qualify as aggravated felonies, we are
not looking at the real offense conduct underlying
the petitioners’ state offenses in order to conjure up a
hypothetical state offense that is then analogous to a
hypothetical federal offense. Rather, we are only looking
at the state offenses for which the petitioners were in fact
convicted: a state drug possession offense after a previous
drug offense. (Notably, none of the petitioners contest the
fact that they have such a record.)
We respectfully suggest that it is only the dissent that
is dealing in hypotheticals. The offense that the dissent
implies the petitioners ought to have been convicted of
in state court to qualify as aggravated felons—i.e., a
possession offense with a recidivist element—does not
currently exist in Illinois. Illinois’s sentencing enhance-
ment for recidivist drug possession, like § 844(a), does not
create a separate offense for “recidivist possession.” See
720 ILCS 570/408(a); 725 ILCS 5/111-3(c) (“[T]he fact of
such prior conviction and the State’s intention to seek
an enhanced sentence are not elements of the offense
and may not be disclosed to the jury during trial . . . .”); see
also People v. Bradford, 543 N.E.2d 918, 930 (Ill. App. Ct.
1989).
22 Nos. 06-3476, 06-3987 & 06-3994

Petitioners bring to our attention two immigration cases
from other circuits, not cited in either Pacheco I or Pacheco
II, that have decided this issue differently. See Berhe v.
Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236
F.3d 130 (3d Cir. 2001).8 In those cases, the courts decided
that subsequent state possession offenses were not aggra-
vated felonies because the records of conviction for
those state offenses did not reveal that the state courts
followed procedures analogous to those outlined in 21
U.S.C. § 851. Steele, 236 F.3d at 137-38; see also Berhe, 464
F.3d at 85-86. (Recall that § 851 requires the government
to file an information alleging the prior drug conviction
and prove it, if contested, beyond a reasonable doubt to
a judge.) The Third Circuit in Steele based its decision
in large part on its concern about the fairness of trans-
forming two state misdemeanors into an aggravated
felony. According to the Third Circuit, defendants do not
address misdemeanor charges with the same caution
and care as a felony indictment. If states did not have
procedures similar to § 851 in place, the Third Circuit
reasoned, then defendants would not realize the grave
immigration consequences that would attach to their
misdemeanor plea.9 Steele, 236 F.3d at 137.

8
After this case was briefed and argued, the Sixth Circuit
decided Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008), wherein
the Sixth Circuit reached the same conclusion as the First
Circuit in Behre and the Third Circuit in Steele.
9
The Third Circuit’s concern also stemmed from a de-
sire—echoed by the dissent, see infra at 34-35—to assure that
(continued...)
Nos. 06-3476, 06-3987 & 06-3994 23

We “carefully consider the opinions of our sister cir-
cuits.” Klein v. DePuy, Inc., 506 F.3d 553, 558 (7th Cir. 2007).
In this instance, we are unpersuaded by what, in our
view, is a misdirected approach to the issue before us. The
Third Circuit’s fairness concern is inconsistent with
Lopez; Lopez holds clearly that state felony-misdemeanor
classifications are meaningless for purposes of deter-
mining whether a state offense is an aggravated felony
under the immigration laws. Moreover, the First and
Third Circuits, in requiring the record of an alien’s most
recent state-court possession conviction to demonstrate
that some form of the procedures outlined in § 851 were
followed in state court, essentially elevate those proce-
dures to the level of an element of the offense. See Steele,
236 F.3d at 137 (“While the status of being ‘a one time
loser’ is not technically an element of the offense pro-
scribed by § 844, we agree with the District Court that it
can be treated as such.”); see also Berhe, 464 F.3d at 85-86;
Gerbier v. Holmes, 280 F.3d 297, 317 (3d Cir. 2002). The

9
(...continued)
defendants were not found to be aggravated felons on the basis
of constitutionally invalid prior convictions. See Steele, 236
F.3d at 138 (“For all that the record before the immigration
judge reveals, the initial conviction may have been constitu-
tionally impaired.”); see also Rashid, 531 F.3d at 447 (quoting
Steele). Such a concern does not apply here, however, because
ordinarily aliens in removal proceedings are not permitted to
collaterally challenge their convictions. See, e.g., Taylor v. United
States, 396 F.3d 1322, 1330 (11th Cir. 2005); Trench v. INS,
783 F.2d 181, 184 (10th Cir. 1986).
24 Nos. 06-3476, 06-3987 & 06-3994

problem with that approach is that the § 851 procedures
are clearly not an element of a § 844(a) offense.1 0 We do not
doubt, of course, that a federal defendant charged under
§ 844(a) could not receive a felony sentence unless the
government complied with the procedures in § 851 for
providing notice and proof of a prior drug conviction.
See United States v. LaBonte, 520 U.S. 751, 754 n.1 (1997);
Harris v. United States, 149 F.3d 1304, 1306 (11th Cir. 1998).
But we do not see any reason to require that a state
have followed the exclusively federal procedures set forth
in § 851 in order for a state offense to qualify as an aggra-
vated felony. Such a requirement, to us, would run con-
trary to the aggravated felony statute’s clear language
that an “offense described in” that statute qualifies as an
aggravated felony “whether in violation of Federal or
State law.” 8 U.S.C. § 1101(a)(43). Thus, we respectfully
disagree with those circuits that hold otherwise.
Petitioners make one other argument that merits atten-
tion. They argue that, if we follow the rule of Pacheco I
here, then a second federal misdemeanor conviction for
simple drug possession could be treated as if it were a
federal felony, despite the fact that such a conviction is
clearly not a felony under federal law. They argue that
such a result “turn[s] the Lopez standard on its head.” We

10
Indeed, the statute explicitly states that the existence or
validity of a prior conviction, if challenged, is to be determined
by the court, not a jury. 21 U.S.C. § 851(c) (“The court shall
hold a hearing to determine any issues raised . . . . The hearing
shall be before the court without a jury . . . .”).
Nos. 06-3476, 06-3987 & 06-3994 25

are quite skeptical that such a result follows from reaf-
firming Pacheco I. The petitioners’ argument presumes
that one could analogize misdemeanor violations of a
federal offense specifically incorporated into the aggra-
vated felony definition to a felony violation of the same
incorporated federal offense. Analogizing makes sense
when determining whether a state conviction qualifies as
an aggravated felony. The statute says that offenses
described in the aggravated felony definition count
“whether in violation of Federal or State law.” Id. As most
of the offenses listed in or incorporated into the aggra-
vated felony definition (besides the generic offenses
such as murder and rape) are strictly federal, some
mode of comparing state crimes to those federal crimes
is necessary. But analogizing makes little sense when
dealing with a conviction for a federal offense, like § 844(a),
that is specifically incorporated into the aggravated
felony definition. Since those federal statutes are specifi-
cally referenced in the aggravated felony definition, there
is no need to compare anything. A violation of one of those
statutes either is, or is not, a felony, and thus is, or is not,
an aggravated felony.
We need not pursue the matter any further. The hypo-
thetical the petitioners pose implicates other concerns
not present in a case, such as this one, where the main
question revolves around analogizing a state offense to a
federal offense specifically incorporated into the aggra-
vated felony definition.
Finding none of the petitioners’ arguments persuasive,
we conclude that the rule of Pacheco I does apply, and
26 Nos. 06-3476, 06-3987 & 06-3994

that the Board and DHS did not err in finding that the
petitioners were statutorily ineligible for cancellation of
removal on the basis of their having been convicted of
an aggravated felony.

III.
Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), controls this
case. Thus, each of the petitioners’ most recent state court
convictions for drug possession constituted an aggra-
vated felony under the INA because each occurred after
a previous drug conviction became final. We A FFIRM .

R OVNER, Circuit Judge, dissenting. The three petitioners
in this case all have criminal records that include two or
more misdemeanor convictions for simple possession of
an illegal drug. None has a felony conviction. The distinc-
tion between felony convictions and misdemeanor con-
victions is critical to non-citizens who are subject to
removal from this country. (It is also of great import to
those being considered for certain sentencing enhance-
ments under the Sentencing Guidelines, but this is a
topic for another time.) Ordinarily persons subject to
removal may petition the United States Attorney General
and ask that he use his discretion to cancel a removal
Nos. 06-3476, 06-3987 & 06-3994 27

order. 8 U.S.C. § 1229b(a). The Attorney General, however,
has no discretion to cancel the removal of a person who
has been convicted of an aggravated felony. 8 U.S.C.
§ 1229b(a)(3). The battle over what constitutes an aggra-
vated felony, therefore, recurs with some frequency and
fervor in immigration cases. The answer may mean the
difference between the possibility of staying in this country
or leaving behind family, children, and the homes the
petitioners may have known their whole lives. Florencio
Victor Manuel Jimenez-Mateo has lived in this country
for approximately forty-two of his fifty-six years. He has
been a lawful permanent resident since 1971. If deported,
he will be leaving behind his job, his two United States
citizen children and the country he has called home
since his early teens. Julio Cesar Calderon has lived in
this country for twenty of his twenty-eight years. He
has two United States citizen children who reside here.
Omar Cendejas-Fernandez is twenty-five years old and
has lived in this country legally since 1992. They have
each been convicted of two (and in one case three) misde-
meanor crimes. Whether the law requires us to consider
these men’s multiple convictions for misdemeanor drug
crimes as felonies for purposes of removal proceedings
is critical to them, as it will be to many others.
The answer lies buried in a maze of cross-referenced
immigration and criminal statutes. Because the majority
has expertly set forth each of the statutes, I need only trace
through them in a cursory fashion. The Immigration
and Nationality Act (INA) defines “aggravated felony”
with a list of crimes that includes drug trafficking. 8
U.S.C. § 1101(a)(43)(B). It also notes that “[t]he term
28 Nos. 06-3476, 06-3987 & 06-3994

[aggravated felony] applies to an offense described in
this paragraph whether in violation of state or federal
law.” Id. at § 1101(a)(43). The INA then points readers to
the criminal code (specifically 18 U.S.C. § 924(c)) for a
definition of a drug trafficking crime. That section of the
criminal code, in turn, defines a drug trafficking crime as
“any felony punishable under the Controlled Substances
Act.” 18 U.S.C. § 924(c)(2). And finally, the Controlled
Substances Act (CSA) turns a second-time drug conviction
into a felony if the government files the necessary infor-
mation with the court and serves it upon the defendant.
21 U.S.C. § 844, § 851. If this convoluted path has made the
weary reader’s eyes glaze over, they must come into focus
here, for the petitioners win or lose based on how the
Supreme Court instructs the lower courts to decide
whether a particular state crime falls within the rubric of
the CSA. The Supreme Court, in Lopez v. Gonzales, 549 U.S.
47, 127 S. Ct. 625, 633 (2006), declared that a state drug
offense is analogous to a felony punishable under the
Controlled Substances Act “only if it proscribes conduct
punishable as a felony under that federal law.” Id.
Some courts, including our own, have described the
Supreme Court’s approach in Lopez as the “hypothetical
federal felony approach.” See, e.g., Escobar Barraza v.
Mukasey, 519 F.3d 388, 390 (7th Cir. 2008); U.S. v.
Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir. 2008) (“Pacheco-
Diaz II”); see also Rashid v. Mukasey, 531 F.3d 438, 443 (6th
Cir. 2008); In re Carchuri-Rosendo, 24 I&N Dec. 382, 396
(BIA 2007) (Pauley, J., concurring). In following the hypo-
thetical federal felony approach, we look to see whether
Nos. 06-3476, 06-3987 & 06-3994 29

a defendant’s conviction would have been a felony if the
defendant had been prosecuted under federal law. Lopez,
127 S. Ct. at 632-33; Gonzales-Gomez v. Achim, 441 F.3d 532,
535 (7th Cir. 2006). Under this approach, the phrase “ ‘any
felony punishable under the CSA’ is read ‘to mean any
conviction punishable as a felony under the CSA.’ ” Rashid,
531 F.3d at 442-43. The Lopez Court did not describe
its methodology as a “hypothetical federal felony ap-
proach,” and, in fact, the term “hypothetical” does not
appear anywhere in the majority opinion. That is not to
say that the term “hypothetical federal felony” is inapt.
It simply requires additional parameters lest it grasps
within its reach more than Congress intended. It does
not, for example, allow an immigration court to deter-
mine that conduct for which a defendant was never
charged and never convicted would have been a felony if
the government had, hypothetically, prosecuted the
defendant under federal law. See, e.g., Rashid, 531 F.3d at
445 (“We conclude that inclusion of the word ‘hypothetical’
in the ‘hypothetical federal felony’ approach does not
provide the government with free reign to make ex-post
determinations of what federal crimes an individual
could hypothetically have been charged with where, as
here, a prior drug-possession conviction was not at issue
in the prosecution of the subsequent drug-possession
offense.”); In re Carachuri-Rosendo, 24 I&N Dec. at 393
(noting that a pure “hypothetical approach would autho-
rize Immigration Judges to collect a series of disjunctive
facts about the respondent’s criminal history, bundle
them together for the first time in removal proceedings,
and then declare the resulting package to be ‘an offense’
that could have been prosecuted as a Federal felony.”)
30 Nos. 06-3476, 06-3987 & 06-3994

The additional parameters needed to constrain the
hypothetical federal felony come from the categorical
approach which requires that, when determining which
state crimes Congress intended to treat as aggravated
felonies for the purposes of the INA, the court must look
only to the elements of the state offense in question
(and, when necessary to the charging document) to deter-
mine whether the offense corresponds to one of the
crimes described as an aggravated felony under the INA.
Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005); see
also Taylor v. United States, 495 U.S. 575, 602 (1990) (the
categorical approach “generally requires the trial court
to look only to the fact of conviction and the statutory
definition of the prior offense.”). The hypothetical federal
felony and the categorical approach are not mutually
exclusive. A court can, and indeed must use the
categorical approach in applying the hypothetical
federal felony. This is precisely the methodology the
Lopez Court required when it announced that, “a state
offense constitutes a felony punishable under the Con-
trolled Substances Act only if it [that is, the state offense]
proscribes conduct punishable as a felony under that
federal law.” Lopez, 127 S. Ct. at 633. In other words, one
looks to the description of the state offense to see
whether the elements enunciated in that offense corre-
spond to a federal felony.
The majority states that a strict categorical approach
does not settle the matter in this case, but application of
Lopez does. Ante at 17. This implies, however, that Lopez
does not require the use of the categorical approach. In
fact, Lopez demands that the categorical approach and
Nos. 06-3476, 06-3987 & 06-3994 31

the hypothetical federal felony be applied together.
Lopez specifically instructs that, when deciding if a state
offense constitutes a felony under the CSA, a tribunal
must look at the conduct proscribed by the state offense.
Lopez, 127 S. Ct. at 633 (emphasis added). Of course, the
conduct proscribed by the state offense may not always
be identical to the defendant’s conduct. There is no
doubt, as the majority points out (ante at 18) that the
state’s decision to classify the offense as a felony or a
misdemeanor is irrelevant and the only definition that
matters is the one the federal government uses to define
the behavior. But this statement skirts the issue. We still
need to identify which behavior we must plug into the
federal classification system. Lopez tells us that it is the
behavior described in the state offense.
This amalgam of the hypothetical federal felony and
categorical approaches means that immigration courts
may not independently assess a defendant’s conduct to
determine whether such conduct would warrant a
federal felony conviction, if, for example, the government
had sufficient evidence to charge the defendant, if the
defendant had not pled to lesser charges, if the critical
evidence had not been suppressed, if a jury had found
sufficient evidence of guilt, if all appeals had been unsuc-
cessful, or if the government had opted to charge
the defendant as a recidivist. Lopez constrains our hypo-
thetical “what-ifing” to consideration of the conduct
proscribed in the offense of conviction, and does not
allow us to consider whether the defendant engaged in
some other conduct that would have been a federal
felony if a long chain of possibilities (or even one) had
32 Nos. 06-3476, 06-3987 & 06-3994

come to fruition. Due to prosecutorial decision making,
limited resources, legal strategy, and other factors, state
prosecutors often charge and convict defendants of of-
fenses that significantly under-represent the actual
conduct of the defendant. It is true that in this way, state
prosecutorial decisions will affect the Department of
Homeland Security’s (DHS’s) ability to remove an alien
pursuant to federal immigration law. DHS, however,
cannot skip the inconvenient and cumbersome hurdles
imposed by criminal procedure and base decisions on
convictions a state court hypothetically could have se-
cured. When we begin to compare “an offense a defend-
ant could have been charged with in state court with
an offense the defendant could have been charged with
in federal court,” we have reached “one too many levels
of hypothetical application.” Pacheco-Diaz II, 513 F.3d at
781. As the Third Circuit concluded when considering
the identical issue, “[o]ne cannot suffer the disabilities
associated with having been convicted of an aggra-
vated felony unless one has been convicted of a felony.”
Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (empha-
sis in original). Without the normal protections in place
when criminal history is vetted before a court, we risk
relying on constitutionally infirm convictions and
elevating minor infractions into felonies in a manner
unintended by Congress.
In fact, Congress recognized the inherent danger of
relying on prior convictions to turn a simple mis-
demeanor drug offense into a recidivist felony when it
drafted § 844 and § 851 of the criminal code. Under
21 U.S.C. § 851(a)(1), before the government may rely
Nos. 06-3476, 06-3987 & 06-3994 33

upon a prior conviction for sentencing purposes, it must
file with the court, and serve on defense counsel an
information revealing the previous convictions upon
which it will rely. Id. The court must then give the defen-
dant an opportunity to challenge the prior conviction
and, if the defendant denies the allegations or validity of
the prior conviction, hold a hearing in which the gov-
ernment must prove the validity or existence of the
prior conviction beyond a reasonable doubt. Id. at (c)(1).1
The requirements of § 851(a) are not pro forma. If the
government fails to file such notice, the court cannot
use the prior conviction to enhance the penalty. United
States v. LaBonte, 520 U.S. 751, 754 n.1 (1997); United States
v. Arreola-Castillo, No. 06-4055, 2008 WL 3892142 at *3 (7th
Cir. August 25, 2008). The majority has gone to great
lengths to highlight that the only thing that counts under
Lopez is the federal government’s classification system
(ante at 18), but it is the federal classification system that
makes it clear that there can be no felony conviction
under § 844(a) for a second or more drug offense unless
the government gives the court and the defendant notice
that it intends to use the prior convictions. 21 U.S.C. § 851.

1
A person may not challenge the validity of a prior conviction
that is more than five years old. 21 U.S.C. § 851(e). One of the
three petitioners here, Jiminez-Mateo, would have been barred
from challenging the validity of his first possession offense.
Presumably, however, he was still permitted to deny an al-
legation of the information of a prior conviction as indicated
in § 851 (c)(1). Furthermore, the notice requirements of 21
U.S.C. § 851(a) would still have applied.
34 Nos. 06-3476, 06-3987 & 06-3994

Framed another way, the majority’s certain conclusion
that the petitioners would have been subject to an in-
creased penalty had they been charged in federal court is
incorrect. The majority states:
While the state of Illinois conceivably could have
enhanced the petitioners’ state sentences under the
Illinois provision similar to § 844(a), that is beside
the point. The question is whether the petitioners
would have been subject to the increased penalty for
having committed a prior drug offense had they been
charged in federal court. As none of the petitioners
disputes the existence of their prior convictions, the
answer to that inquiry here must be “yes”; the petition-
ers’ most recent state possession offenses are there-
fore properly classified as aggravated felonies.
Ante at 18 (emphasis in original) (footnote omitted). The
petitioners, however, would have been subject to the
increased penalty only if they had been charged as repeat
offenders under 21 U.S.C. § 851. And that is a big “if.”
After all, they were not charged as repeat offenders in state
court. This is the “one too many levels of hypothetical”
with which we were concerned in Pacheco-Diaz. See Pacheco-
Diaz II, 513 F.3d at 781.
The requirements of § 851(a) are not without good
reason. As the Sixth Circuit noted, “many misdemeanor
or lesser convictions are processed under questionable
circumstances and may be found invalid if challenged.”
Rashid, 531 F.3d at 447 (citing the brief amici curiae of the
Criminal Defense Attorneys of Michigan and the New
York State Defenders Association). The Third Circuit
too commented on the danger of relying on a previous
Nos. 06-3476, 06-3987 & 06-3994 35

misdemeanor where its existence and constitutional
integrity was never litigated as part of any criminal
proceeding. Steele, 236 F.3d at 137-38. The Board of Immi-
gration Appeals, after weighing these concerns, concluded
that unless constrained by circuit law otherwise, “an
alien’s State conviction for simple possession will not be
considered an aggravated felony conviction on the basis
of recidivism unless the alien’s status as a recidivist drug
offender was either admitted by the alien or determined
by a judge or jury in connection with a prosecution for
that simple possession offense.” In re Carachuri-Rosendo, 24
I&N Dec. at 394. In so concluding, the Board noted that its
approach differed from this Circuit’s approach in Pacheco-
Diaz. Although constrained by the binding precedent of
Pacheco-Diaz in this Circuit, the Board has stated that it
will decline to follow the Pacheco-Diaz approach else-
where. It is now my position that the Board and our
sister courts in the First, Third, and Sixth Circuits have the
better view. See, e.g., Rashid v. Mukasey, 531 F.3d 438 (6th
Cir. 2008); Berhe v. Gonzlaez, 464 F.3d 74 (1st Cir. 2006);
Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). In short, a
conviction for simple misdemeanor possession in which
a court has never adjudicated or considered the fact or
validity of a prior conviction should not be equated with
a recidivist possession conviction under 21 U.S.C. § 844(a).
One more scenario adds weight to this conclusion. If the
majority’s contrary theory is correct, then a federal defen-
dant who has been convicted of two separate federal
misdemeanor possession crimes could be deemed an
aggravated felon despite the government’s failure to
comply with the absolute requirements of 21 U.S.C. § 851.
36 Nos. 06-3476, 06-3987 & 06-3994

But we know in no uncertain terms that the govern-
ment may not engage the recidivist portion of § 851
without meeting all of the requirements of that section.
LaBonte, 520 U.S. at 754 n.1. The majority dismisses this
paradox by stating that is skeptical that such a result
would follow. State violations, it argues, must be com-
pared with and then molded into the analogous federal
offense of 21 U.S.C. § 844(a). Federal violations under
§ 844(a), the majority argues on the other hand, need not
be compared to anything, and so they become recidivist
crimes only if the government follows the dictates of § 851.
This rationale is confusing. If the federal government
deems it necessary to give a federal defendant the
protections of § 851 (notice, opportunity to respond etc.)
before subjecting that defendant to felony charges as a
repeat offender under § 844(a), why would state recidi-
vists—whose crimes are being analogized into the rubric of
§ 844(a)—not require the same protections? Surely Con-
gress does not have more confidence in the validity of
convictions from the thousands of (ofttimes minuscule,
isolated, and under-resourced) state courts around the
country than it has in its own federal courts. In any event,
it seems clear that Congress intended for recidivists to be
charged as recidivists before a court may pile on to the
punishment.
This is not to say that a state recidivist law must mirror
21 U.S.C. § 851 precisely before a state recidivist can be
labeled a felon pursuant to 21 U.S.C. § 844(a). One might
imagine that as long as a defendant has some form of
notice of and opportunity to challenge the prior convic-
tion, then the state offense would qualify as a conviction
Nos. 06-3476, 06-3987 & 06-3994 37

punishable under the CSA and thus meet the standard
declared in Lopez.2 The Sixth Circuit, in considering
this question, concluded that “[p]rovided that an individ-
ual has been convicted under a state’s recidivism
statute and that the elements of that offense include a
prior drug-possession conviction that has become final
at the time of the commission of the second offense, then
that individual, under the categorical approach, has
committed an aggravated felony under § 844(a).” Rashid,
531 F.3d at 448 (emphasis in original); accord In re Car-
achuri Rosendo, 24 I&N Dec. at 391 (“State recidivism
prosecutions must correspond to the CSA’s treatment of
recidivism by providing the defendant with notice and an
opportunity to be heard on whether recidivist punishment
is proper.”). At this juncture we need not determine how
closely the state notice and opportunities to challenge must
resemble those in the federal rule. In each of the cases
presented here, the petitioners were convicted of simple
misdemeanors with no mention of any prior conviction.
The conduct prohibited by the offenses for which they
were convicted was simple possession—a crime not
punishable as a felony under the CSA.
The majority hangs its hat on our recent decision in
United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007)
(Pacheco-Diaz I), a sentencing enhancement case, wherein
we concluded that the defendant’s second misdemeanor

2
Illinois does have a law that provides for a sentencing
enhancement for recidivist possession (720 ILCS 570/408(a)) and
requires that the state give the defendant notice of the state’s
intention to seek the enhancement. 725 ILCS 5/111-3(c).
38 Nos. 06-3476, 06-3987 & 06-3994

conviction for possession of marijuana would be treated
as a federal felony under the recidivist provision of 21
U.S.C. § 844(a). Id. at 550. We issued the decision in
Pacheco-Diaz after considering the Supreme Court’s deci-
sion in Lopez, but without the benefit of briefing on the
impact of that recently released opinion, and before the
Board issued its decision in Carachuri-Rosendo. Although
I authored the panel decision in Pacheco-Diaz, as I noted
in my dissent to the denial of rehearing, and above, I now
believe that case was incorrectly decided. See Pacheco-
Diaz II, 513 F.3d at 779. Our opinion in Pacheco-Diaz I
looked at Pacheco-Diaz’s conduct rather than, as Lopez
instructs, the conduct proscribed by the offense for which
Mr. Pacheco-Diaz was convicted, and in that way did not
give the categorical approach and the protective mecha-
nisms of 21 U.S.C. § 851 their due. See Pacheco-Diaz II, 513
F.3d at 779-781 (7th Cir. 2008).3

3
The majority also makes much of the fact that recidivism is a
penalty provision and not an element of the offense of convic-
tion. Ante at 17 (citing Almendarez-Torres, 523 U.S. 224, 244
(1998)). Although still reigning law, the viability of this notion
is much in doubt. In U.S. v. Apprendi, 530 U.S. 466, 520, Justice
Thomas, in concurrence, admitted siding with the erring
position in Almendarez-Torres and concluded that the fact of a
prior conviction is indeed an element of a recidivism statute—a
position which allies him with the four dissenters in Almendarez-
Torres. Id. at 520-21 (Thomas, J., concurring). Thomas’ change of
mind now means that at least five current members of the
Supreme Court support the position that the fact of a prior
conviction is indeed an element of a recidivism crime. In any
(continued...)
Nos. 06-3476, 06-3987 & 06-3994 39

Requiring immigration courts to look at the conduct
proscribed by the offense of conviction does not mean
that those courts and the reviewing federal courts are
beholden to the manner in which a state court has
labeled a crime. Federal law must and does provide the
classification for federal felonies. The only question is:
“what is the federal law classifying?” Under a pure hypo-
thetical federal felony approach, federal law looks at the
defendant’s conduct and classifies that conduct under
the federal construct regardless of the actual offense of
conviction. Under the hypothetical federal felony
approach modified by the categorical approach, federal
law classifies the conduct for which the defendant was
convicted, or, as Lopez says, the conduct proscribed by
the state statute. Lopez, 127 S. Ct. at 633.
In sum, by the command of Lopez and the categorical
approach to federal/state offense comparison, we are
obligated to look only at the offense of conviction and
the conduct described therein. True, as the majority points
out, there are limited situations in which we may peek
behind the face of the conviction, to the charging docu-
ments, Gattem, 412 F.3d 758, 765 (2005), but the charging
documents in these cases would have been no help. In
each case in this appeal the state convicted the defendant

3
(...continued)
event, this distinction does not get us around the Supreme
Court’s command in Lopez that we look to the conduct pro-
scribed in the state offense of conviction. In this case that
statute described conduct—simple possession—that would
not have qualified as an aggravated felony under federal law.
40 Nos. 06-3476, 06-3987 & 06-3994

of a simple misdemeanor without mention of any
previous misdemeanor convictions. The state prosecutors
opted not to charge these defendants as recidivist drug
crime offenders and we cannot re-write history to make
it so. The offenses for which each of these petitioners
were convicted do not proscribe conduct that would be a
felony under the CSA. Consequently, I would hold that
none of their convictions constitutes an aggravated
felony under § 1101(a)(43)(B) of the INA. I respectfully
dissent.

9-15-08