# United States v. Ernesto Ibarra-Galindo

> Court of Appeals for the Ninth Circuit · March 27, 2000 · 206 F.3d 1337

URL: https://www.frixlaw.com/law-library/cases/9492894

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Ernesto IBARRA-GALINDO, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 27, 2000
- **Citations:** 206 F.3d 1337; 2000 Daily Journal DAR 3201; 2000 Cal. Daily Op. Serv. 2369; 2000 U.S. App. LEXIS 5067; 2000 WL 306357
- **Precedential status:** Published
- **Opinion:** Dissent by Canby
- **Judges:** Canby, Brunetti, O'Scannlain
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492894

## How later opinions describe it (automated extraction)

- stating in the Ninth Circuit that “we have never even suggested that we would interpret 18 U.S.C. § 924 (c)(2) differently in applying the Immigration and Nationality Act than we now interpret it in applying the Sentencing Guidelines”
- holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law
- rejecting the defendant's argument that the court must defer to the Board's interpretation of the term "aggravated felony" under the INA for purposes of interpreting the Sentencing Guidelines and stating that "the [Board] has no special authority to interpret or implement [] t…
- holding that crime that constitutes misdemeanor under federal law may nonetheless be considered aggravated felony if it qualifies as felony under state law
- recognizing it to be a “daunting exercise to conclude that the majority has reached an incorrect result when six other circuits agree with it”

## Opinion text

CANBY, Circuit Judge,
dissenting:
It is a somewhat daunting exercise to conclude that the majority has reached an incorrect result when six other circuits agree with it. With all due respect to this imposing array of authority, I am convinced that their construction of the statutes is erroneous. This case is a perfect example why.
Ibarra-Galindo’s guideline offense level of eight has been tripled to twenty-four because he was convicted of a “drug trafficking” crime. 8 U.S.C. § 1101 (a)(43)(B); 18 U.S.C. § 924 (c)(2). What was that drug trafficking crime? Simple possession of four-tenths of a gram of cocaine! Because common sense rebels at the thought of classifying bare possession of a tiny amount of narcotics as a drug trafficking crime, we should not adopt that interpretation unless the statutory language compels us to conclude that Congress intended such a startling result. 1 The statutory language compels no such conclusion, nor does its history; indeed, both lean in the opposite direction.
The statutory path is admittedly a tortuous one. The sentencing guideline provides for a sixteen-level increase if the defendant entered the United States after having been convicted of an “aggravated felony.” U.S.S.G. § 2L1.2(b)(l)(A). An application note provides that “ ‘[aggravated felony’ is defined at 8 U.S.C. § 1101 (a)(43).” Id., comment, (n.l). Section 1101(a)(43)(B) in turn defines “aggravated felony” to include: “illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of Title 18).”
Section 924(c) provides enhanced penalties for a person who uses or carries a firearm in relation to a crime of violence or a “drug trafficking crime.” 18 U.S.C. *1342 § 924 (c)(1)(A). “Drug trafficking crime” is further defined as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)” or under two other federal statutes not relevant here. 18 U.S.C. § 924 (c)(2) (emphasis added). One perfectly permissible way to read this phrase is to require that the conduct proscribed by the state law of conviction be punishable as a felony under the Controlled Substances Act. Because such a reading would lead to a sensible result, I would read the words of the statute that way.
I do not rest on personal preference, however. The history of section 924(c)(2) indicates that its purpose was to encompass those crimes that we normally think of as “drug trafficking.” Until 1988, section 924(c)(2) defined “drug trafficking” as “any felony violation of Federal law involving the distribution, manufacture, or importation of any controlled substance.” 18 U.S.C. § 924 (c)(2) (1982 & Supp. V 1987). In the Anti-Drug Abuse Act of 1988, Congress amended this subsection into its present form, defining “drug trafficking crime” as “any felony punishable under the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act.” 18 U.S.C. § 924 (c)(2) (citations omitted). Congress labeled this change a “clarification.” Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 6212 , 102 Stat. 4181 , 4860. We have held that this “clarification” did not represent a broadening of the definition of “drug trafficking crimes.” See United States v. Contreras, 895 F.2d 1241, 1244 (9th Cir.1990). It is therefore consistent with the history of section 924(c)(2) to interpret “felony punishable under the Controlled Substances Act” as excluding the crime of simple possession of which Ibarra-Galindo was convicted under state law.
The majority, however, offers reasons for reading the phrase differently, but they do not hold up. First, the majority suggests that the phrase could have been written more clearly, to state “punishable as felonies under the Controlled Substances Act,” and that, because Congress “eschewed” that phraseology, we should not adopt that meaning. It is a rare statute, however, that could not have been written more clearly than it was. 2 We will frequently fall into error if we assume, without evidence, that Congress actually considered and rejected the alternative. The crucial issue is the meaning of the phrase Congress did use. It can certainly be read as requiring that the conduct in question be punishable as a felony under the Controlled Substances Act.
The majority also states that our precedent binds us to its interpretation of section 924(c), but it does not. It is true that United States v. Garcia-Olmedo, 112 F.3d 399 (9th Cir.1997), stated that, “to meet the definition of an aggravated felony, the offense must be (a) punishable under the Controlled Substances Act and (b) qualify as a felony.” Id. at 400 . It did not hold, however, that a state felony that would not be a federal felony was sufficient; instead, it held that Gareia-OImedo’s crimes would be felonies under federal law because his prior conviction renders him punishable under federal law by imprisonment for more than one year. See id. at 401 . The same was true in United States v. Zarate-Martinez, 133 F.3d 1194, 1200 (9th Cir.), cert. denied, 525 U.S. 849 , 119 S.Ct. 123 , 142 L.Ed.2d 99 (1998). Thus there is no precedent of this circuit that binds us to the majority’s result. On the contrary, in United States v. Lomas, 30 F.3d 1191 (9th Cir.1994), we examined a conviction under a state statute proscribing transportation of drugs. The state authorized a penalty of more than one year, but we did not rely on that fact to hold that the conviction was an aggravated felony. Instead, we held that transportation was similar to trading or manufacturing, and qualified as “drug *1343 trafficking.” See id. at 1194 . We also pointed out that transportation was “analogous to 21 U.S.C. § 952 , which is included in 18 U.S.C. § 924 (c)(2)’s definition of ‘drug trafficking crime.’ ” Id. It is clearly inconsistent with the reasoning of Lomas to hold that the state crime of simple possession of drugs is a “drug trafficking crime.”
The majority finds support for its decision in 21 U.S.C. § 802 (13), which provides: “[t]he term ‘felony’ means any Federal or State offense classified by applicable Federal or State law as a felony.” This definition, however, refers to the meaning of “felony” only “[a]s used in this subchapter.” 21 U.S.C. § 802 . We are not defining “felony” as used in this sub-chapter, or any subchapter, of Title 21. We are defining “felony” as used in 18 U.S.C. § 924 (c)(2). Thus the definition in 21 U.S.C. § 802 (13) is utterly irrelevant to our purpose.
There is a much better source from which to discern how state law meshes into the meaning of “aggravated felony,” and its history makes clear that Congress did not intend the meaning adopted by the majority opinion. In 1990, Congress amended 8 U.S.C. § 1101 (a)(43) to state:
The term [“aggravated felony”] applies to an offense described in this paragraph whether in violation of Federal or State law....
This amendment did not come out of the blue. Earlier in 1990, the Board of Immigration Appeals had decided Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990). In Barrett, the question was whether the definition of aggravated felony set forth in section 1101(a)(43), and thus by reference in section 924(c)(2), was limited to federal drug trafficking convictions. The BIA held that it was not; a state conviction that contained the same elements would also qualify. See id. at 174 . Thus, the BIA held that
the definition of “drug trafficking crime” at 18 U.S.C. § 924 (c)(2), as incorporated into the Immigration and Nationality Act by section 101(a)(43) of the Act, includes a state conviction sufficiently analogous to a felony offense under the Controlled Substances Act....
Id. at 175 (emphasis added). The Board further explained:
[I]t is unreasonable to assume that Congress, in choosing the definition of “drug trafficking crime” at 18 U.S.C. § 924 (c)(2), sought to differentiate between aliens convicted of similar drug-related offenses on the basis of whether the conviction was accomplished under state or federal law.
Id. (emphasis added). 3 The Board accordingly remanded the case to the immigration judge to determine whether the state offense of which the alien had been convicted “includes all the elements necessary for a conviction under 21 U.S.C. § 841 (a)(1),” which proscribes distribution or possession with intent to distribute. Id. at 178 .
Several months later, Congress enacted the previously-quoted amendment to section 1101(a) to specify that “aggravated felony” applied to the offenses described whether they were violations of federal or state law. The House Judiciary Committee explained the amendment as follows:
Under current law aliens who are convicted of committing an “aggravated felony” (a defined term) become subject to a number of disabilities. They are ... *1344 subject to severe penalties if they unlawfully reenter the United States after being deported.... Current law clearly renders an alien convicted of a Federal drug trafficking offense an aggravated felon. It has been less clear whether a state drug trafficking conviction brings that same result, although the Board of Immigration Appeals in Matter of Barrett (March 6, 1990) has recently ruled that it does. Because the Committee concurs with the recent decision of the Board of Immigration Appeals and wishes to end further litigation on this issue, section 1501 of H.R. 5269 specifies that drug trafficking (and firearms/destructive device trafficking) is an aggravated felony whether or not the conviction occurred in state or Federal court.
H.R.Rep. No. 101-681(1), at 147 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6553. It is thus clear that the concern of Congress was with “drug trafficking,” whether the conviction was state or federal, not with “drug offenses” or “drug possession.” It is also clear that the approach of the Board in Barrett met with Congress’s approval. If it is good enough for Congress it ought to be good enough for us.
The Board has continued to adhere to its Barrett approach. In the case of In re LG-, Int. Dec. 3254, 1995 WL 582051 (BIA 1995), the Board held that an alien who had been convicted in state court of the state felony of simple drug possession was not guilty of an “aggravated felony” within the meaning of 8 U.S.C. § 1101 (a)(43) and 18 U.S.C. § 924 (c)(2). The majority opinion asserts that the Board is expert in immigration matters, not in the interpretation of the sentencing guidelines or1 the criminal code, and that we therefore owe it no deference in interpreting section 924(c)(2). But the Sentencing Commission, in electing to end its practice of listing aggravated felonies, chose to adopt the definition of the Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(43). It did so in order to “conform! ] the definition of ‘aggravated felony in the guidelines with the amended definition in the Immigration and Nationality Act.” U.S.S.G. App. C, Amend. 562 (Nov. 1, 1997). The Board of Immigration Appeals is expert in interpreting the meaning of the Immigration and Nationality Act.
In my view, then, there is ample reason in the language and the history of 8 U.S.C. § 1101 (a)(43) and 18 U.S.C. § 924 (c), to interpret “aggravated felony” to require conduct punishable as a felony under federal law. Even if the language and history of those statutes did not militate toward such a result, they would certainly give rise to uncertainty about the proper construction. 4 In that event, we should follow *1345 the rule of lenity and adopt the construction that is most favorable to the defendant. See, e.g., United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir.1993). As it stands, the majority (and six other circuits) have construed statutes defining “drug trafficking” to include the crime of simple possession of drugs if the state defines it as a felony. Here the consequence is an increase of Ibarra-Galindo’s offense level from eight to twenty-four because he was earlier convicted of possessing less than half a gram of cocaine. Because neither the statutes nor their history drives us to this absurd result, we should not embrace it.
. We could as easily assert that Congress had the option in section 924(c)(2) of saying "punishable under the Controlled Substances Act and constituting a felony under either federal or state law.” Then; by "eschewing” such language, Congress must have meant to avoid that construction.
. The majority opinion asserts that its holding is consistent with the purposes of the Guidelines, which "operate on the foundational premise that a defendant's history of criminal activity in violation of state law is to be treated on a par with his history of crimes committed in violation of federal law.” United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir.1996). But if criminal activity is treated on a par, then it should have the same consequences whether the activity was a violation of state or federal law. More appropriate to this case is the basic approach of the Congress in establishing the guideline system: "Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders.” U.S.S.G. Ch.l, Pt.A, (3) P.S.
. It should be apparent from everything I have said thus far that I deem the tangled statutory language to be ambiguous if it does not actually dictate a result contrary to that reached by the majority. In any event, words mean what they are intended to mean and I would construe the words in accord with Congress's intent. The majority in its footnote 2 quotes American Rivers v. Federal Energy Regulatory Comm'n, 201 F.3d 1186, 1204 (9th Cir.2000) (quoting Hearn v. Western Conference of Teamsters Pension Trust Fund, 68 F.3d 301, 304 (9th Cir.1995)) to the effect that " 'legislative history-no matter how clear-can’t override statutory text.’ ” We and other courts often utter unconditional statements like this about the plain meaning rule, but are unable to live with them in practice. Some qualifications have to be added, as the Supreme Court itself has recognized. See, e.g., Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 , 100 S.Ct. 2051 , 64 L.Ed.2d 766 (1980) (“Absent a clearly expressed legislative intention to the contrary, [the statutory] language must ordinarily be regarded as conclusive.”). American Rivers itself had to acknowledge a qualification; in the same paragraph quoted by the majority, it referred to the rule of Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir.1997). There we said that "we rely on plain language in the first instance, but always look to legislative history to determine whether there is a clear indication of contrary intent.” Id. at 1325 . In the face of such irrefutable evidence of how we actually interpret statutes, we should cease reiterating a mechanical, unqualified plain meaning rule.
For the purposes of this case, the most pertinent qualification of the plain meaning rule is that stated in Seattle-First National Bank v. Conaway, 98 F.3d 1195 (9th Cir.1996). There we said that we were governed *1345 by clear statutory language, and added: "At least that is true where what seems to be the plain meaning of the statute does not lead to 'absurd or impracticable consequences.' ” Id. at 1197 (citations omitted). In this case, a rigid "plain meaning” that the majority finds in the statutory language has led to absurd or impractical consequences. Congress cannot have intended the result the majority attributes to it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492894. Public record. Not legal advice.