Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 866-Samuel Der-Yeghiayan, Judge.
On Petition for Rehearing
Before EASTERBROOK, Chief Judge, and ROVNER and SYKES, Circuit Judges.
Our opinion in this appeal, 506 F.3d 545 (7th Cir. 2007), held, among other things, that PachecoDiaz had been removed from the United States after committing an "aggravated felony." (His current conviction is for unauthorized re-entry after that removal.) An alien who reenters after being removed for committing an "aggravated felony" receives a higher offense level than an alien removed for a less serious crime (or for a reason other than crime). See U.S.S.G. §2L1.2(b)(1)(C). Pacheco- Diaz's pre-removal convictions include possessing marijuana, in violation of Illinois law. Simple possession of marijuana is not a federal felony, however, and PachecoDiaz argued that his offense therefore could not be an "aggravated felony" for the purpose of 8 U.S.C. §1101(a)(43), a definitional clause incorporated by reference in §2L1.2(b)(1)(C). But we concluded that multiple "simple possession" convictions add up to a drug felony, because 21 U.S.C. §844(a) treats possessing marijuana that way if the defendant already has one marijuana-possession conviction on his record.
Pacheco-Diaz argues that we should grant rehearing because our initial opinion overlooked the fact that none of his convictions in Illinois is based on that state's recidivist statute. After our opinion was released, a majority of the Board of Immigration Appeals concluded-apparently as a result of a concession by counsel for the Department of Homeland Security-that a state marijuana-possession offense is an aggravated felony under §1101(a)(43) only if the alien was charged as a recidivist in state court. See Matter of Carachuri-Rosendo, 24 I.&N. Dec. 382 (2007). We disagree with that understanding of §1101(a)(43), for reasons well stated by Member Pauley's concurring opinion in CarachuriRosendo.
Normally, when administering federal recidivist statutes such as 18 U.S.C. §924(e), federal courts look at the elements of the prior offense under which the defendant has been convicted, not at the conduct underlying that conviction. See Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990). Section 1101(a)(43) is not a recidivist statute, however, nor does its application depend on the elements of the state crime.
Lopez v. Gonzales, 127 S.Ct. 625 (2006), holds that classification of an offense for the purpose of §1101(a)(43) depends on how the accused's conduct would be treated under federal law. If the conduct of which the defendant has been convicted would be a felony under federal law, then it comes within §1101(a)(43) if it meets that statute's requirements concerning the subject-matter of the crimes and the length of the sentence. In deciding whether given conduct would be a drug felony under federal law, it is not possible to limit attention to the elements of the offense under state law; the point of Lopez is that, when state and federal crimes are differently defined, the federal court must determine whether the conduct is a federal felony, not which statute the state cited in the indictment.
This is not to say that the federal court (or the immigration officials, when §1101(a)(43) is applied in removal proceedings) should look past the state convictions to see what the defendant actually did. A court must stick with the conduct reflected in the judgment of conviction. But the district judge, when sentencing Pacheco-Diaz, did not go behind the state convictions to the real-offense behavior-did not, in other words, inquire whether Pacheco-Diaz possessed a distribution-sized quantity of marijuana, which would have supported a federal conviction under 21 U.S.C. §841. Pacheco-Diaz has been convicted in state court, at least twice, of simple possession of marijuana. A second marijuana-possession offense is a felony under 21 U.S.C. §844(a) if the defendant's second episode of possession post-dates his first conviction, as Pacheco-Diaz's second possession did. 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 §1101(a)(43) is federal rather than state law.
Footnote 6 of Lopez (127 S.Ct. at 630 n.6) supports this approach. It reads:
Of course, we must acknowledge 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. But this coerced inclusion of a few possession offenses in the definition of "illicit trafficking" does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning.
This does not settle the matter-the footnote is elliptical and dictum to boot. It is unnecessary to expatiate on its meaning. 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. Footnote 6 of Lopez just acknowledges a logical consequence of the Court's general approach.
Pacheco-Diaz's convictions establish that he is a marijuana-possession recidivist. His initial conviction, in 2000, occurred before the conduct that led to his second drug conviction in 2002. Had he been prosecuted under federal law, Pacheco-Diaz would have been treated as a felon by §844(a). That makes him a controlled-substance felon for the purpose of §1101(a)(43) and justifies application of the sentencing enhancement under §2L1.2(b)(1)(C). The petition for rehearing is denied.
ROVNER, Circuit Judge, 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, 127 S.Ct. 625 (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 ...