dissenting.
It is not often that the author of a unanimous panel decision dissents from the denial of panel rehearing and yet that is the position in which I find myself. Because of rulings issued by the Board of Immigration Appeals after the release of the panel decision, I have come to doubt my resolution of the sentencing issue regarding aggravated felonies. See In re Carachuri-Rosendo, 24 I. & N. Dec. 382 (2007); In re Thomas, 24 I. & N. Dec. 416 (2007). After oral argument in the instant case, the Supreme Court issued its decision in Lopez v. Gonzales, — U.S. —, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006). The government submitted the Lopez opinion as supplemental authority, arguing that under Lopez’s footnote six, Pacheco-Diaz’s second state possession conviction constituted a felony as defined by the CSA recidivist provision, 21 U.S.C. § 844(a), and thus was an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(B) and guideline 2L1.2(b). The defendant did not respond to the government’s supplemental argument.
*780Footnote six of Lopez states, in relevant part, that “Congress did counterintuitively define some possession offenses as ‘illicit trafficking.’ Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute ‘illicit trafficking in a controlled substance’ or ‘drug trafficking’ as those terms are used in ordinary speech.” Lopez, 127 S.Ct. at 630 n. 6. Applying footnote six to the conduct for which Pacheco-Diaz was convicted, our opinion found that the defendant’s second state possession conviction could have been charged as a felony under the CSA recidivist provision and thus was an aggravated felony.
The potential problem with that analysis is that it applied the language of footnote six to the conduct and not the offense for which Pacheco-Diaz was convicted. The Court in Lopez and the prior authority of this court both use a categorical approach in determining whether a state offense constitutes an aggravated felony under federal law. See Lopez, 127 S.Ct. at 633 (“In sum, we hold that a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”); Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005) (the approach to identifying state crimes that Congress intended to be treated as aggravated felonies is categorical). The only relevant consideration in the categorical analysis is the offense actually charged in state court, not the crime that could have been charged for the defendant’s underlying conduct. The offense for which Pacheco-Diaz was convicted was simple possession. He could have been charged for his second possession offense as a recidivist in state court but he was not. He was instead charged as if his second offense was his first, and our knowledge that this was his second offense does not permit us to recharacterize the charge. I agree with the per curiam that the court should not look at the label the state applies to the defendant’s conduct; but the court must, under Lopez, consider the conduct the state statute proscribes, and not the conduct behind the offense of conviction. Lopez, 127 S.Ct. at 633. See also id., 127 S.Ct. at 631 (“a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony”).
The categorical approach demands that we look to “the elements of the state offense in question and, where necessary, to the charging document pursuant to which the petitioner was convicted, to determine whether the offense corresponds to one of the crimes described as aggravated felonies in the INA.” Gattem, 412 F.3d at 765. To be charged as a recidivist under federal law, a prosecutor would have to establish a number of elements beyond those required in a simple possession case. See 21 U.S.C. § 851 (describing proceedings necessary to establish prior convictions); Carachuri-Rosendo, 24 I. & N. Dec. at 384-85 (explaining that a judge may not impose a felony sentence on a recidivist unless the prosecutor filed and served an enhancement information that provides the defendant with notice and an opportunity to review the allegations of the prior convictions for accuracy, to contest the use of these convictions, and to create a trial strategy, among other things). Lopez spoke of “state possession crimes that correspond to felony violations” in footnote six. Paeheeo-Diaz’s second possession offense does not “correspond to” recidivist possession under section 844(a). Nothing about the conviction or the charging docu*781ment corresponds to the recidivist elements of section 851, a provision of federal law entirely ignored by the per curiam opinion; it reflects only simple possession. As the Court stated in Lopez, “[ujnless a state offense is punishable as a federal felony it does not count.” 127 S.Ct. at 631. Possession, the state offense at issue, is not punishable as a federal felony and so it does not count. Because Pacheco-Diaz did not commit an aggravated felony, the eight-level increase under guideline 2L1.2 was in error.
Our post-Lopez analysis would have been greatly aided by full briefing of this issue, including the relevance and effect of section 851. I had hoped my colleagues would agree to withdraw the opinion and allow the issue to be fully briefed. Like the government, however, they read footnote six of Lopez without reference to the categorical approach and without regard to the fact that Pacheco-Diaz was not charged as a recidivist in state court, an approach that I now believe may be mistaken. Carachuri-Rosendo, 24 I. & N. Dec. at 390 (declining to treat a series of misdemeanor possession offenses as trafficking felonies unless the state offense corresponds in a meaningful way to the essential requirements that must be met before a felony sentence may be imposed under federal law on the basis of recidivism). The opinion in Pacheco-Diaz as it stands compares an offense the defendant could have been charged with in state court with an offense the defendant could have been charged with in federal court. That is one too many levels of hypothetical application. The BIA has indicated that it does not intend to follow our decision in Pacheco-Diaz outside of the Seventh Circuit. See Carachuri-Rosendo, 24 I. & N. Dec. at 393. A circuit split is sure to follow. Because my colleagues do not wish to give the matter additional consideration before that inevitable result follows, I re-spectrally dissent from the denial of panel rehearing.