United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3514

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United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Martin Briones-Mata, also known as * District of Nebraska.

Martin Brigones, also known as Martin * [UNPUBLISHED]

Brigida, also known as Juan Torres, *

also known as Martin Brinoes, *

also known as Martin Briones, also *

known as Juan Castillo, also known *

as Martin Mata Briones, *

*

Appellant. *

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Submitted: April 16, 1997

Filed: May 12, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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The Honorable Lyle E. Strom, United States District Judge for the District of 1

Nebraska.

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PER CURIAM.

Martin Briones-Mata pleaded guilty to illegally reentering the United States after

deportation, in violation of 8 U.S.C. § 1326(a). The district court sentenced him to 48 1

months' imprisonment. Briones-Mata appeals, and we affirm.

Briones-Mata argues that the district court erred in imposing a sixteen-level

enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(2) (1995). He

contends that the term "aggravated felony" as used in that section does not include his

Florida felony conviction for purchasing marijuana, as that offense would have been

only a misdemeanor under federal law. See 21 U.S.C. § 844(a). We review de novo

the district court's interpretation of the Guidelines. See United States v. Cadotte, 57

F.3d 661, 662 (8th Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 783 (1996).

Under section 2L1.2(b)(2), a sixteen-level enhancement applies if the defendant

previously was deported after a conviction for an "aggravated felony." The

commentary to section 2L1.2 defines "aggravated felony" to include:

any illicit trafficking in any controlled substance (as defined in 21 U.S.C.

§ 802), including any drug trafficking crime as defined in 18 U.S.C. §

924(c)(2) . . . . The term "aggravated felony" applies to offenses

described in the previous sentence whether in violation of federal or state

law . . . .

U.S. Sentencing Guidelines Manual § 2L1.2, comment (n.7) (1995). Section 924(c)(2),

in turn, defines the term "drug trafficking crime" as including "any felony punishable

under the Controlled Substances Act (21 U.S.C. 801 et seq.)." The term "felony" is

defined for the purposes of the Controlled Substances Act (CSA) as "any Federal or 
The First Circuit relied in part on Jenkins v. INS, 32 F.3d 11, 13-14 (2d Cir.

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1994) (holding that alien's state drug conviction that was felony under state law, but

misdemeanor under federal law, qualified as "aggravated felony" under statute

providing that alien convicted of aggravated felony is not entitled to automatic stay of

deportation pending petition for review). The Second Circuit subsequently overruled

Jenkins. See Aguirre v. INS, 79 F.3d 315, 316 (2d Cir. 1996). Having considered the

supplemental briefing submitted by the parties at our request, we conclude that Aguirre

does not affect our interpretation of the Guidelines or our reliance upon RestrepoAguilar.

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State offense classified by applicable Federal or State Law as a felony." 21 U.S.C. §

802(13).

In United States v. Haggerty, 85 F.3d 403, 406 (8th Cir. 1996), we concluded

that a California felony drug-possession conviction qualified as an aggravated felony

because it was punishable under the CSA and was a felony under both federal and state

law. Our analysis does not stop here, however, as Briones-Mata's Florida conviction

would have been only a misdemeanor under the CSA. Nevertheless, we agree with the

First Circuit that a state drug offense can be an aggravated felony "if the offense is

classified as a felony under the law of the relevant state, even if the same offense would

be punishable only as a misdemeanor under federal law." See United States v.

Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir. 1996). Thus, we conclude the district

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court properly imposed the sixteen-level enhancement because Briones-Mata's Florida

conviction was a "felony" for the purposes of the CSA, see 21 U.S.C. § 802 (13), a

"drug trafficking crime" under section 924(c)(2), and therefore an "aggravated felony"

for purposes of section 2L1.2(b)(2).

Briones-Mata's argument that the term "aggravated felony" includes only drug

crimes with a distribution element is without merit. See Restrepo-Aguilar, 74 F.3d at

364 n.5. We also reject Briones-Mata's argument that United States v. Taylor, 495

U.S. 575, 599 (1990) (formulating "generic" definition of burglary), prohibits looking
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to state law to determine whether a crime is a felony. See 495 U.S. at 591-92 (stating

that, absent a clear indication of Congress's intent to incorporate diverse state laws into

federal criminal statute, meaning of "burglary" must have some uniform definition

independent of labels employed by various states). We believe the definitions of the

terms at issue indicate that Congress made a deliberate policy decision to include as an

"aggravated felony" a drug crime that is a felony under state law but only a

misdemeanor under the CSA. See Restrepo-Aguilar, 74 F.3d at 366 (noting that any

"lack of uniformity is the consequence of a deliberate policy choice by Congress and

the Commission that we cannot disregard").

The judgment is affirmed.

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.