Garcia: Trafficking Pa. Drug Crime Is Aggravated Felony For Trafficking
Garcia v. Gonzales, No. 05-2786, precedential: http://www.ca3.uscourts.gov/opinarch/052786p.pdf
September 5, 2006
Violating 35 Pa. Stat. Ann. section 780-113(a)(30) (section 13(a)(30) of the Controlled Substance, Drug, Device, and Cosmetic Act) is an aggravated felony where the complaint indicates it involved trafficking.
In analyzing whether a crime is an aggravated felony, courts will focus on the state statute involved, the federal description of what's an aggravated felony and if it is unclear, the conviction of record including for Pa. the complaint approved by the prosecutor. Here, the complaint stated it was for a Pa. felony involving trafficking activities so it is an aggravated felony because is a state felony that involved "illicit trafficking." (Therefore, the Third Circuit did not have to grapple with whether the crime could also be an aggravated felony as a "hypothetical federal felony" -- a crime that would be a felony if charged under federal laws.) To involve trafficking, there must be trading or dealing with drugs. Here, the complaint involved distribution, solicitation, and possession with intent to distribute drugs -- that was enough to be trafficking.
Because of the way the statute was written and the complaint in the case, the result was different than under similar statutes in Delaware and New Jersey. See Gerbier v. Holmes, 230 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).
Needless to say, if you are convicted of a drug crime or charged with committing an aggravated felony, it may be wise to get expert analysis of the confusing immigration laws.
September 5, 2006
Violating 35 Pa. Stat. Ann. section 780-113(a)(30) (section 13(a)(30) of the Controlled Substance, Drug, Device, and Cosmetic Act) is an aggravated felony where the complaint indicates it involved trafficking.
In analyzing whether a crime is an aggravated felony, courts will focus on the state statute involved, the federal description of what's an aggravated felony and if it is unclear, the conviction of record including for Pa. the complaint approved by the prosecutor. Here, the complaint stated it was for a Pa. felony involving trafficking activities so it is an aggravated felony because is a state felony that involved "illicit trafficking." (Therefore, the Third Circuit did not have to grapple with whether the crime could also be an aggravated felony as a "hypothetical federal felony" -- a crime that would be a felony if charged under federal laws.) To involve trafficking, there must be trading or dealing with drugs. Here, the complaint involved distribution, solicitation, and possession with intent to distribute drugs -- that was enough to be trafficking.
Because of the way the statute was written and the complaint in the case, the result was different than under similar statutes in Delaware and New Jersey. See Gerbier v. Holmes, 230 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).
Needless to say, if you are convicted of a drug crime or charged with committing an aggravated felony, it may be wise to get expert analysis of the confusing immigration laws.
posted by Rex at 1:51 PM
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