PRACTICE ADVISORY:
THE IMPACT OF THE BIA DECISIONS IN MATTER OF CARACHURI AND
MATTER OF THOMAS ON REMOVAL DEFENSE OF IMMIGRANTS WITH MORE
THAN ONE DRUG POSSESSION CONVICTION*
December 19, 2007
On December 13, 2007, the Board of Immigration Appeals (BIA) issued two
precedent decisions that together mean that, in cases arising outside the
Second, Fifth and Seventh Circuits, a non-citizen with more than one state
drug possession conviction may not be deemed convicted of an aggravated
felony where the state prosecutors did not rely on a prior conviction to
charge and convict the individual as a recidivist. See Matter of CarachuriRosendo, 24 I&N Dec. 382 (BIA 2007) (hereinafter Carachuri) and Matter of
Thomas, 24 I&N Dec. 416 (BIA 2007) (hereinafter Thomas). The BIA left open the
question of when a noncitizen who was convicted by the state as a recidivist could
be deemed convicted of an aggravated felony.
In cases arising in the Fifth Circuit, as well as the Second and Seventh
Circuits, the BIA indicated that it was constrained by circuit precedent to find that a
second or subsequent state possession conviction may be deemed an aggravated
felony regardless of whether the state prosecuted the individual as a recidivist. See
Carachuri, 24 I&N Dec. at 385-88, 392-93. This practice advisory provides
arguments for individuals in these circuits to show that the precedents from these
circuits cited by the BIA do not preclude a finding that a second or subsequent state
possession offense is not an aggravated felony.
This advisory is divided into the following sections:
•
•
•
•
•
•

What the BIA decided in Carachuri and Thomas
What Carachuri means for noncitizens whose cases arise in Circuits other than
the 2nd, 5th, and 7th Circuits
What Carachuri means for noncitizens whose cases arise in the 5th Circuit
What Carachuri means for noncitizens whose cases arise in the 2nd Circuit
What Carachuri means for noncitizens whose cases arise in the 7th Circuit
Resources

__________
* IDP wishes to acknowledge the input and assistance provided by Dan Kesselbrenner of the
National Immigration Project, Nancy Morawetz of the NYU School of Law, Chuck Roth of the
National Immigrant Justice Center, and Beth Werlin of the American Immigration Law Foundation.

What the BIA decided in Carachuri and Thomas
One year ago, in Lopez v. Gonzales, 127 S. Ct. 625 (2006), the Supreme
Court decided that a state simple possession drug conviction is generally not a
“drug trafficking” aggravated felony if the offense would not be a felony under
federal law. Therefore, since a conviction for a first-time drug possession offense
is generally not a felony under federal law, most noncitizens convicted of a single
state drug possession offense—although removable—may be eligible to avoid
removal by seeking cancellation of removal, asylum, withholding of removal,
and/or naturalization because they are not subject to the aggravated felony bars
applicable to these waivers or benefits. See Practice Advisory: Removal
Defense of Immigrants in Drug Possession Cases—The Impact of Lopez v.
Gonzales
(April
12,
2007),
posted
on
the
web
at
www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.pdf.
Nevertheless, after Lopez, the Department of Homeland Security (DHS)
has argued that noncitizens with more than one possession conviction could be
deemed aggravated felons based on dicta in Lopez indicating that state drug
possession offenses could “counterintuitively” be deemed “drug trafficking”
aggravated felonies if the state offense “corresponds” to the federal “recidivism
possession” felony offense at 21 U.S.C. § 844(a) (possession of a controlled
substance after a prior drug conviction has become final). See Lopez, 127 S.Ct.
at 630 n.6. Under federal law, a second or subsequent possession offense may
be penalized as a recidivist possession felony if notice of the prior conviction has
been given and an opportunity to challenge the fact, finality and validity of the
prior conviction has been provided in the criminal case. See 21 U.S.C. § 851.
Up until recently, however, the DHS argued that any second state simple
possession drug conviction could be transformed into a “drug trafficking”
aggravated felony based on a prior conviction for simple possession. In the
DHS’ view, it did not matter that the state criminal proceeding did not prove the
prior conviction or offer an opportunity equivalent to that under federal law to
challenge the fact, finality, and validity of the alleged prior conviction, or even
where the prior conviction never came up during the state criminal proceeding. 1
In Carachuri, the BIA rejected the DHS’ broad argument and decided that,
in the absence of controlling federal court authority finding otherwise, a
noncitizen’s state conviction for simple possession of a controlled substance “will
not be considered an aggravated felony based on recidivism unless the
individual’s status as a recidivist drug offender was either admitted or determined
by a judge or jury in connection with a prosecution for that simple possession
offense.” Carachuri, 24 I&N Dec. at 394 (emphasis added). The BIA did not
apply this rule in the Carachuri case itself—a case that arose under Fifth Circuit
1

As the BIA noted, the DHS modified its position after oral argument in Carachuri to state that “a
conviction arising in a State that has drug-specific recidivism laws cannot be deemed a State-law
counterpart to ‘recidivist possession’ unless the State actually used those laws to prosecute the
respondent.” Carachuri, 24 I&N Dec. at 391 (emphasis added).

law—because it found that it was bound by the contrary Fifth Circuit criminal
sentencing decision in United States v. Sanchez-Villalobos, 412 F.3d 572, 577
(5th Cir. 2005), cert. denied, 546 U.S. 1137 (2006) (finding alternative basis for
applying sentence enhancement based on prior conviction of an aggravated
felony because drug possession conviction at issue was preceded by another
conviction and thus “could have been punished” under 21 U.S.C. § 844(a) as a
felony). See Carachuri, 24 I&N Dec. at 386-88. The BIA did apply this rule in
Thomas—a decision issued the same day as Carachuri but in a case that arose
under Eleventh Circuit law—because it found that the Eleventh Circuit has not
ruled on this issue. See Thomas, 24 I&N Dec. at 421-22.
What Carachuri means for noncitizens whose cases arise in Circuits other
than the 2nd, 5th, and 7th Circuits
A. Conviction not obtained under state recidivist provision
Under Carachuri and Thomas, Immigration Judges are now bound—at
least in cases arising in jurisdictions outside the Second, Fifth, and Seventh
Circuits (see following sections addressing case law in these circuits)—to find
that a noncitizen’s state conviction for simple possession of a controlled
substance is not an aggravated felony based on evidence of a prior drug
conviction where the individual’s status as a recidivist drug offender was
not admitted or determined by a judge or jury in the state criminal
proceedings relating to the second or subsequent conviction at issue. The
BIA majority in Carachuri states:
[T]he purely “hypothetical” approach embraced by the Second, Fifth, and
Seventh Circuits (as well as the concurring Board Members) discounts the
importance of the respondent’s actual offense . . . in favor of an
expansive, and apparently noncategorical, inquiry into his larger criminal
history.
In essence, the hypothetical approach would authorize
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. . . .
Without a showing of recidivism within the confines of the State
prosecution, we conclude that the State offense cannot be said to
proscribe conduct punishable as a felony under Federal law.
Carachuri, 24 I&N Dec. at 393.
Essentially, this means that, in most jurisdictions, a noncitizen’s second or
subsequent state possession conviction should not be deemed an aggravated
felony if the state did not charge and prosecute the individual as a recidivist.

3

B. Conviction obtained under state recidivist provision
If an individual was charged and convicted as a recidivist under state
law, then, in the majority of jurisdictions, the question is to what extent do
the state’s recidivist provisions correspond to those under federal law.
See 21 U.S.C. §§ 844(a) and 851. Under federal law, a second or subsequent
possession offense may not be penalized as a “recidivism possession” felony
unless the offense was committed after the alleged prior conviction has become
final, see 21 U.S.C. § 844(a), and the U.S. Attorney before trial, or before entry of
a guilty plea, has filed an information with the court stating in writing the previous
conviction(s) to be relied upon, and the defendant has had an opportunity to
challenge the fact, finality and validity of the prior conviction(s) in a hearing in
which the U.S. Attorney has the burden of proof beyond a reasonable doubt on
any issue of fact. See 21 U.S.C. 851. The BIA indicates that, at a minimum, the
state must have provided the defendant with notice and an opportunity to be
heard on whether recidivist punishment is proper in order for a particular crime to
be considered a “recidivist” offense. See Carachuri, 24 I&N Dec. at 391. The
BIA, however, goes on to state the following:
We do not now decide whether State criminal procedures must have
afforded the alien an opportunity to challenge the validity of the first
conviction in a manner consistent with 21 U.S.C. § 851(c). Nor are we
now concerned with the timing of notice, or with the burdens and
standards of proof applicable to a defendant’s challenge to his status as a
recidivist. We also reserve the question whether facts about the nature,
timing, or finality of prior convictions must be established categorically or
otherwise.
Carachuri, 24 I&N Dec. at 394, n.10 (citation omitted).
For cases arising in the First, Third and Ninth Circuits, one should also
consider the relevant favorable precedents in those circuits. The First and Third
Circuits found, prior to Carachuri, that second or subsequent state drug
possession convictions should not be deemed to correspond to a federal felony
under § 844(a) in the absence of some notice and proof in the state criminal
proceedings of the prior drug conviction. See Berhe v. Gonzales, 464 F.3d 74,
85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130, 137–38 (3d Cir. 2001).
The Ninth Circuit has gone further – at least in the immigration context -- and
ruled that no second or subsequent state drug possession conviction should be
treated as punishable by more than one year’s imprisonment and therefore a
“felony” punishable under the Controlled Substances Act by virtue of a recidivist
sentence enhancement. See Oliveira-Ferreira v. Ashcroft, 382 F.3d 1045 (9th
Cir. 2004). 2
2

As the BIA points out, the rationale for the Ninth Circuit interpretation in Oliveira-Ferreira may be
affected by the decision in a criminal sentencing case currently pending before the Supreme
Court and scheduled to be argued on January 15, 2008. See Carachuri, 24 I&N Dec. at 386, n.3

4

What Carachuri means for noncitizens whose cases arise in the 5th Circuit
In Carachuri, the BIA holds that it is bound in cases arising in the Fifth
Circuit to find that an individual’s second or subsequent state possession offense
may be deemed an aggravated felony even where the individual was not charged
and convicted as a recidivist. See Carachuri, 24 I&N Dec. at 386-88 (citing
United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005)).
Nevertheless, noncitizens and their lawyers in the Fifth Circuit should raise any
available arguments that second or subsequent possession offenses are not
aggravated felonies. (For arguments to raise, see practice materials referenced
in Resources section at the end of this advisory). Even if Immigration Judges
and the BIA reject these arguments based on Sanchez-Villalobos, they should be
raised to preserve them for Fifth Circuit review or to benefit from any future Fifth
Circuit decision in another case making clear that Sanchez-Villalobos is not
binding precedent on this issue. In fact, the multiple possession issue is raised in
at least three cases currently pending before the Fifth Circuit in the criminal
sentencing context, 3 and Carachuri itself may be appealed to the Fifth Circuit.
Noncitizens and their lawyers who have cases pending at the Fifth Circuit
should argue that Sanchez-Villalobos is no longer binding, if it ever was, on
resolution of multiple possession issues in the Circuit. First, Sanchez-Villalobos
was decided pre-Lopez, under a standard rejected by the Supreme Court in
Lopez. 4 Furthermore, to the extent Sanchez-Villalobos applied the correct
federal felony standard, it applied it in a manner inconsistent with Lopez. See
supra Practice Advisory: Removal Defense of Immigrants in Drug Possession
Cases—The Impact of Lopez v. Gonzales. As the BIA stated, “[i]t is certainly
reasonable to believe that the Fifth Circuit may want to reexamine its law in the
wake of Lopez v. Gonzales. Indeed, . . . we believe Lopez points strongly toward
a different construction of the statute in ‘recidivist possession’ cases.” Carachuri,
24 I&N Dec. at 387. In addition, Sanchez-Villalobos was a sentencing decision
that reached its determination on the two possession issue in a cursory and
conclusory way, unlike the more thorough and complete analysis undertaken by
the First and Third Circuits in Berhe and Steele in the immigration context. See
Carachuri, 24 I&N Dec. at 392 (noting that the Sanchez-Villalobos court did not
“address[] or resolve[] the more intricate set of issues raised by the parties here,
bearing on how a State drug possession offense may equate to the Federal
‘offense’ of recidivist possession when the Federal offense itself is compounded
(citing United States v. Rodriguez, 464 F.3d 1072 (9th Cir. 2006), cert. granted, 128 S. Ct. 33
(2007) (No. 06-1646)).
3
United States v. Rodriguez de Leon, Docket No. 07-50347 (briefing completed on 9/10/07);
United States v. Gutierrez-Quintanilla, Docket No. 07-40494 (briefing completed on 11/2/07); and
United States v. Arevalo-Sanchez, Docket No. 07-40684 (briefing completed on 12/12/07).
4
Sanchez-Villalobos applied a state or federal felony approach to drug aggravated felony
determinations, see Sanchez-Villalobos, 412 F.3d at 576 (offense must “be a felony under either
state or federal law”), that Lopez rejected when it adopted a federal felony only standard. See
Lopez, 127 S. Ct. at 629-33.

5

out of a disparate collection of elements, substantive sentencing facts, and
procedural safeguards within the CSA”).
Finally, and significantly, it should be pointed out that the Fifth Circuit itself
has not treated Sanchez-Villalobos as binding precedent on the multiple
possession issue.
Even before Lopez, the Fifth Circuit questioned the
significance of its alternative holding in Sanchez-Villalobos that a second state
possession offense could be an aggravated felony under the federal standard.
Smith v. Gonzales, 468 F.3d 272, 276 n.3 (5th Cir. 2006) ("The effect of Part B
[the alternative basis for affirmance] in Sanchez-Villalobos is uncertain"). In
addition, after Lopez was decided, the Fifth Circuit rejected a government motion
to dismiss that argued that Lopez requires that all subsequent possession
convictions be treated as aggravated felonies. See Semedo v. Gonzales, Dkt.
No. 06-61102 (5th Cir. 2007). In fact, despite Sanchez-Villalobos, the Fifth
Circuit not only rejected this request but it granted the petitioner a stay of
removal. Moreover, after the government switched tactics and moved for
remand in another Fifth Circuit case involving an unpublished Board decision that
had relied on Sanchez-Villalobos, the Fifth Circuit ordered remand to the Board
for reconsideration in light of Lopez. See Bharti v. Gonzales, No. 06-60383 (5th
Cir. 2007). In this case, the government itself had taken the position that the
Fifth Circuit has not addressed the issue at hand in this case. The government’s
papers to the Fifth Circuit stated:
[T]he Board should be permitted, in the first instance, to apply its
expertise to this case in light of the Supreme Court’s analysis. In
particular, remand is appropriate for the Board to determine
whether in order for Petitioner’s second possession offense to
qualify as an aggravated felony, he needed to have been charged
under a recidivist statute, or the first conviction needed to have
been charged or proven during the criminal proceedings for the
subsequent offense. See 21 U.S.C. § 851; Berhe v. Gonzales, 464
F.3d 74 (1st Cir. 2006). That question has been raised by
Petitioner here in his opening brief (as well as in the brief of amici
curiae), but does not appear to have been addressed by either the
Board or this Court in the context of immigration proceedings.
Respondents’ Opposition To Motion of Amici Curiae For Leave to Submit Amicus
Brief, Bharti v. Gonzales, attached to Brief of Amicus Curiae New York State
Defenders Association for Respondent before the BIA, posted at
www.nysda.org/idp/docs/07_MatterofC-A-BIAAmicusBriefFinalRedacted.pdf. In
fact, despite Sanchez-Villalobos, the Fifth Circuit has also recently remanded
even a criminal sentencing case involving two prior possession convictions for
reconsideration of an aggravated felony sentence enhancement in light of Lopez,
See U.S. v. Arevalo-Sanchez, 2006 WL 870362 (5th Cir. Mar. 21, 2007)
(unpublished) (“In light of Lopez, Arevalo-Sanchez’s argument has merit”), and
flatly rejected the government’s arguments in another criminal sentencing case,

6

United States v. Galvan-Lozano, No. 06-41297, 2007 U.S. App. LEXIS 21849,
*3-4 (5th Cir. 2007) (unpublished) (“The government provides no authority . . . to
support its assertion that a court of appeals may affirm [an aggravated felony
sentencing enhancement] based on drug convictions, which were not individually
aggravated felonies, on the ground that the convictions together are the
equivalent of a recidivist possession conviction . . .”).
Thus, noncitizens and their lawyers should argue that, given Lopez,
Sanchez-Villalobos is no longer good law in the Fifth Circuit. If an individual was
not charged and convicted as a recidivist under state law, he or she should argue
for application, in the interest of uniformity, of the rule of Carachuri to find that the
conviction is not an aggravated felony. If an individual was charged and
convicted as a recidivist under state law, then the individual should make any
available arguments that the state recidivist provisions do not correspond to
those under federal law. See 21 U.S.C. §§ 844(a) and 851.
What Carachuri means for noncitizens whose cases arise in the 2nd Circuit
In Carachuri, the BIA appears to imply in dicta that it would be bound also
in cases arising in the Second Circuit to find that an individual’s second or
subsequent state possession offense may be deemed an aggravated felony even
where the individual was not charged and convicted as a recidivist. See
Carachuri, 24 I&N Dec. at 392-393 (citing United States v. Simpson, 319 F.3d 81
(2d Cir. 2002)). The decision does not note that the Second Circuit expressly
stated in Simpson that its holding was not binding beyond the criminal sentencing
context in which the issue arose in that case. See Simpson at 86, n.7 (“We offer
no comment on whether such convictions constitute "aggravated felonies" for any
purpose other than the Guidelines”). In any event, even if Simpson were binding
in the immigration context, noncitizens and their lawyers in cases arising in the
Second Circuit should point out that this conclusion in Carachuri was dicta and
then raise any available arguments that second or subsequent possession
offenses are not aggravated felonies. (For arguments to raise, see practice
materials listed in Resources section at the end of this advisory). Even if
Immigration Judges and the BIA reject these arguments based on Simpson, they
should be raised to preserve them for Second Circuit review or to benefit from
any future Second Circuit decision in another case making clear that Simpson is
not binding precedent on this issue. In fact, the multiple possession issue is
raised in at least one case currently being briefed before the Second Circuit.
Martinez v. Gonzales, Docket No. 07-3031.
Noncitizens and their lawyers who have cases pending at the Second
Circuit (or even those with cases still pending before the agency given that any
finding in Carachuri with respect to Second Circuit law was dicta) should also
argue that Simpson was decided pre-Lopez, under a standard rejected by the

7

Supreme Court in Lopez. 5 Furthermore, to the extent Simpson applied the
correct federal felony standard, it applied it in a manner inconsistent with Lopez.
See supra Practice Advisory: Removal Defense of Immigrants in Drug
Possession Cases—The Impact of Lopez v. Gonzales. In addition, Simpson was
a sentencing decision that reached its determination on the two possession issue
in a cursory and conclusory way, unlike the more thorough and complete
analysis undertaken by the First and Third Circuits in Berhe and Steele in the
immigration context. See Carachuri, 24 I&N Dec. at 392 (noting that the
Simpson court did not “address[] or resolve[] the more intricate set of issues
raised by the parties here, bearing on how a State drug possession offense may
equate to the Federal ‘offense’ of recidivist possession when the Federal offense
itself is compounded out of a disparate collection of elements, substantive
sentencing facts, and procedural safeguards within the CSA”).
Finally, and significantly, the Second Circuit itself has not treated Simpson
as binding precedent on the multiple possession issue in the immigration context.
In fact, in a subsequent immigration case, the Second Circuit explicitly chose not
to resolve “this complex issue” in a pro se case lacking full briefing. See Durant
v. INS, 393 F.3d 113, 115 (2d Cir. 2004), amended by Durant v. INS, 2004 U.S.
App. LEXIS 27904, at *2 n.1 (2d Cir. December 16, 2004) (“We are reluctant to
adjudicate this complex issue without the benefit of full briefing . . . . Accordingly,
we do not address [the issue]”). And, in post-Lopez cases raising the multiple
possession issue, the government itself has sought remand in at least one case
in which the Board in an unpublished opinion had relied on Simpson. The
Second Circuit’s remand order, stipulated to by the government, remands the
case to the Board for consideration “in light of Lopez,” and states that the Board
should consider the fact that the immigrant “was not charged under a recidivist
statute.” See Powell v. Gonzales, Dkt. No. 06-5315 (2d Cir. Feb. 7, 2007); see
also Martinez v. Ridge, Dkt. No. 05-3189 (2d Cir. May 8, 2007); Sorbo v.
Ashcroft, Dkt. No. 04-1215 (2d Cir. Sept. 10, 2007) (remand orders in other
multiple conviction cases at the government’s request to provide the agency with
an opportunity to reconsider decisions in light of Lopez).
Thus, noncitizens and their lawyers should argue that Simpson is not the
law of the Second Circuit in the immigration context and, even if it were, that it is
no longer good law after Lopez. If an individual was not charged and convicted
as a recidivist under state law, he or she should argue for application, in the
interest of uniformity, of the rule of Carachuri to find that the conviction is not an
aggravated felony. If an individual was charged and convicted as a recidivist
under state law, then the individual should make any available arguments that
the state recidivist provisions do not correspond to those under federal law. See
21 U.S.C. §§ 844(a) and 851.
5

Simpson applied a state or federal felony approach to drug aggravated felony determinations,
see Simpson, 319 F.3d at 85 (offense is an "aggravated felony" when it “can be classified as a
felony under either state or federal law”), that Lopez rejected when it adopted a federal felony
only standard. See Lopez, 127 S. Ct. at 629-633.

8

What Carachuri means for noncitizens whose cases arise in the 7th Circuit
In Carachuri, the BIA indicates in dicta that it would be bound in cases
arising in the Seventh Circuit to find that an individual’s second or subsequent
state possession offense may be deemed an aggravated felony even where the
individual was not charged and convicted as a recidivist. See Carachuri, 24 I&N
Dec. at 392-393 (citing United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir.
2007)). The decision does not note that the Seventh Circuit has not yet issued
its mandate in Pacheco-Diaz. Fed. R. App. P. 41(a) (mandate issues 21 days
after entry of judgment or seven days after denial of petition for rehearing). This
is because Mr. Pacheco filed a petition for rehearing on November 6, 2007
pursuant to Fed. R. App. P. 40(a)(1) and the Seventh Circuit has not denied the
petition. In fact, the Court has asked the government to respond. See United
States v. Pacheco-Diaz, Dkt. No. 05-2264.
In any event, even if the petition for rehearing in Pacheco-Diaz is denied,
noncitizens and their lawyers in cases arising in the Seventh Circuit should point
out that the Carachuri conclusion regarding the binding effect of Pacheco-Diaz
was dicta and then raise any available arguments that second or subsequent
possession offenses are not aggravated felonies. (For arguments to raise, see
practice materials listed in Resources section at the end of this advisory). Even if
Immigration Judges and the BIA reject these arguments based on Pacheco-Diaz,
they should be raised to preserve them for Seventh Circuit review or to benefit
from any future Seventh Circuit decision in another case making clear that
Pacheco-Diaz is not binding precedent on this issue. In fact, the issue of
whether individuals convicted of more than one possession offense may
automatically be deemed aggravated felons is currently pending before the
Seventh Circuit in a set of consolidated cases raising this issue in the
immigration context. See Fernandez et. al. v. Keisler, 06-3476, Jimenez-Mateo
v. Keisler, 06-3987, and Calderon v. Keisler, 06-3994 (consolidated as “JimenezMateo”).
Noncitizens and their lawyers who have cases pending at the Seventh
Circuit (or even those with cases still pending before the agency given that any
finding in Carachuri with respect to Seventh Circuit law was dicta) should argue
that Pacheco-Diaz is not binding on resolution of the question addressed by
Carachuri. First, the Pacheco-Diaz court did not address the situation of an
individual whom the State chose not to charge and convict as a recidivist, and
consider whether a resulting non-recidivist disposition in such a case truly
corresponds to a federal recidivist felony conviction. See Carachuri, 24 I&N Dec.
at 392 (noting that the Pacheco-Diaz court did not “address[] or resolve[] the
more intricate set of issues raised by the parties here, bearing on how a State
drug possession offense may equate to the Federal ‘offense’ of recidivist
possession when the Federal offense itself is compounded out of a disparate
collection of elements, substantive sentencing facts, and procedural safeguards

9

within the CSA”). In fact, at oral argument in Jimenez-Mateo, at least one
member of the panel stated repeatedly that the consolidated immigration cases
raised a key legal issue that was not presented to the Pacheco-Diaz court,
namely, whether an immigrant who was not charged and convicted as a recidivist
under state law can be labeled a “drug trafficking” aggravated felon. October 30,
2007 Oral Argument in Jimenez-Mateo, available at www.ca7.uscourts.gov/
fdocs/docs.fwx. To the extent that Pacheco-Diaz does not address relevant
arguments, it does not bind the Seventh Circuit on these points. See, e.g.,
Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (“Because [prior Seventh
Circuit decision] did not mention that subject, it does not contain a holding on the
issue”).
Second, Pacheco-Diaz was briefed and argued before Lopez, see
Pacheco-Diaz, 506 F.3d at 545 (argued November 27, 2006, eight days before
December 5, 2006 decision in Lopez), and, lacking the benefit of post-Lopez
briefing, its reasoning is fatally flawed in light of the Supreme Court’s analysis in
Lopez. For example, Pacheco-Diaz, which was a sentencing case, relied heavily
on sentencing case law, such as United States v. Perkins, 449 F.3d 794 (7th Cir.
2006) and United States v. Henton, 374 F.3d 467 (7th Cir. 2004), which analyzed
punishment under state law where there were no prerequisites for recidivist
enhancement. The relevant provision in the Armed Career Criminal Act at issue
in those cases direct a court to determine the maximum term of imprisonment for
the state offense at issue by looking to state penalties and their requirements.
See Perkins, 449 F.3d at 796 (analyzing the maximum term authorized under
Illinois law); Henton, 374 F.3d at 469 (same). The Perkins and Henton decisions
analyzed the relevant state statutes and, noting that the state recidivist
enhancement provision at issue in those cases has no prerequisites, found that
the defendants were subject to a recidivist enhancement that qualified them as
“serious drug offenses.” See Perkins, 449 F.3d at 796; Henton, 374 F.3d at 469
(distinguishing United States v. Williams, 326 F.3d 535, 538 (4th Cir. 2003),
which involved a state statute that had prerequisites for recidivist enhancement).
This is a different inquiry than the inquiry under Lopez—where the focus must be
on federal penalties, which do incorporate specific recidivist enhancements
requirements. 6 Thus, had the Pacheco-Diaz panel focused on the “maximum
6

In Lopez, the Supreme Court analyzed the definition of “drug trafficking crime” in 18 U.S.C. §
924(c) and concluded that only those state convictions that “proscribe conduct punishable as a
felony under [ ] federal law” are “drug trafficking” aggravated felonies. Lopez, 127 S. Ct. at 633
(emphasis added). Thus, unlike the inquiry in Armed Career Criminal Act “serious drug offense”
cases, for example, Lopez clarifies that inquiry in “drug trafficking” aggravated felony cases is not
about the maximum term of incarceration authorized under state law, but is instead focused
solely on the maximum term authorized under federal law. Under federal law, a recidivist drug
possession conviction does have prerequisites, requiring a federal prosecutor to charge in an
information, and subsequently establish, a final prior conviction. See 21 U.S.C. §§ 844(a) and
851. The Supreme Court has held that these requirements must be met in order for the
“maximum term authorized” for an offense to be enhanced under the federal recidivist statute.
For example, in LaBonte, the Supreme Court held that “for defendants who have received the
notice under § 851(a)(1), as respondents did here, the ‘maximum term authorized’ is the
enhanced term. For defendants who did not receive the notice, the unenhanced maximum

10

term of imprisonment” authorized by federal law rather than state law, it would
have followed the Supreme Court’s decisions in LaBonte and Price to conclude
that “the unenhanced maximum applies” where an individual was not charged as
a recidivist and that conviction therefore was not punishable as a felony.
LaBonte, 520 U.S. at 758-760; see also supra fn. 5.
Third, the Pacheco-Diaz panel did not fully consider the implications of its
decision in the immigration context, as evident by its failure to even discuss, let
alone distinguish, the binding precedents of the First and Third Circuits. Berhe v.
Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130, 137-38
(3d Cir. 2001); see also Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); McNeil
v. AG of the United States, 2007 U.S. App. LEXIS 20582, *15-17 (3d Cir. 2007)
(recently applying Steele and Gerbier). Moreover, the cases that the PachecoDiaz decision did rely on arise in circuits (the Second and Fifth) that no longer
consider that contrary case law binding. See discussion in two preceding
sections of this advisory. The only other decision of a circuit (the Sixth) cited by
Pacheco-Diaz in support of its position in fact rejected a government claim that
an individual’s second possession conviction could categorically be treated as an
aggravated felony. See United States v. Palacios-Suarez, 418 F.3d 692, 700
(6th Cir. 2005) (found that appellant’s second drug offense occurred prior to his
first conviction becoming final, “[a]ccordingly, he could not be charged under the
recidivist provision of the federal statute”).
Thus, noncitizens and their lawyers should argue that Pacheco-Diaz—
even if the Seventh Circuit denies rehearing—does not fully resolve questions
raised by Lopez, at least with respect to questions not addressed in the PachecoDiaz decision and not yet resolved by the Jimenez-Mateo cases. If an individual
was not charged and convicted as a recidivist under state law, he or she should
argue for application, in the interest of uniformity, of the rule of Carachuri to find
that the conviction is not an aggravated felony. If an individual was charged and
convicted as a recidivist under state law, then the individual should make any
available arguments that the state recidivist provisions do not correspond to
those under federal law. See 21 U.S.C. §§ 844(a) and 851.

applies.” United States v. LaBonte, 520 U.S. 751, 758-760 (1997) (emphasis added). The
Supreme Court later applied this rule in United States v. Price, 537 U.S. 1152 (2003), remanding
that case back to the Fifth Circuit. In its decision following that remand, the Fifth Circuit
acknowledged, “[i]n our prior opinion, we concluded Price’s 21 U.S.C. § 844 conviction could
have been a felony because of his prior convictions. However, Price did not receive notice that
these prior convictions could be used. Thus his 21 U.S.C. § 844 conviction could not be a
felony.” United States v. Price, No. 00-51078, 67 Fed. Appx. 243, *2-3 (5th Cir. 2003) (not for
publication) (emphasis added). In other words, a simple possession offense is not punishable as
a recidivist felony unless the requirements for charging and establishing recidivism under federal
law are met. Lopez clarifies that these federal requirements are precisely what matters for the
inquiry here, and if the state conviction does not correspond to the federal felony, “it does not
count” as an aggravated felony. Lopez, 127 S. Ct. at 631.

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Resources
Those whose cases are not fully resolved by the BIA decisions in
Carachuri and Thomas—e.g., those whose cases arise in the Second, Fifth, and
Seventh Circuits, or those whose cases involve convictions under state recidivist
provisions that may or may not correspond to those under federal law—may refer
to prior Immigrant Defense Project (IDP) resource materials for additional
arguments to challenge continuing or future DHS charges that an individual with
more than one simple possession drug conviction has been convicted of an
aggravated felony. Please note, however, that these resource materials have not
yet been updated to include the impact of the BIA decisions in Carachuri and
Thomas. These resources include:
ƒ

Practice Advisory: Removal Defense of Immigrants in Drug Possession
Cases—The Impact of Lopez v. Gonzales (April 12, 2007), posted at
www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.pd
f (see section entitled “What if my client has more than one state drug
possession conviction?” on pages 6-9).

ƒ

Pro Se Advisory: Immigrants With Multiple Drug Possession Convictions:
Instructions for Challenging Whether You Have Been Convicted of an
Aggravated
Felony
(Oct.
12,
2007),
posted
at
www.nysda.org/idp/docs/07_PracticeAdvisoryMultipleDrugPossession_Notan
AF_Advisory_Final1017.pdf.

For additional litigation support or to learn about later developments on the
issues discussed in this advisory, please see the IDP website at
www.immigrantdefenseproject.org, or contact IDP’s Alina Das at (212) 725-6486
or Manny Vargas at (212) 725-6485.

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