United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3514

___________ 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 Martin Brigones, also known as Martin * [UNPUBLISHED] Brigida, also known as Juan Torres, * also known as Martin Brinoes, * also known as Martin Briones, also * known as Juan Castillo, also known * as Martin Mata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. *

___________ Submitted: April 16, 1997 Filed: May 12, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________The Honorable Lyle E. Strom, United States District Judge for the District of 1 Nebraska. -2- 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-leve l enhance ment

under U.S. Sentencing Guidelines Manual § 2L1.2(b)(2) (1995). H e contends that the term "agg ravated felony" as used in that section does not include his Flori dafelony conviction for purchasing marijuana, as that offense would have bee n only a misd emeanor 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 , 5 7 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 previ ously was deported after a conviction for an "aggravated felony." Th e commentary to section 2L1.2 defines "aggravated felony" to include: any illicit trafficking in any c ontrolled substance (as defined in 21 U.S.C. § 802), inc luding any drug trafficking crime as defined in 18 U.S.C. § 92 4(c)(2) . . . . The term "aggravated felony" applies to offense s described in the previous sentence w hether in violation of federal or state law . . . . U.S. Sentencing Guidelines Manual § 2L1.2, comment (n.7) (1995). Sec tion 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" i s defined for the purposes of the Controlled Substances Act (CSA) as "any Federal orThe First Circuit relied in part on Jenkins v. INS , 32 F.3d 11, 13-14 (2d Cir

. 2 1994) (h olding that alien's state drug conviction that was felony under state law, bu t misd emeanor

under federal law, qualified as "aggravated felony" under statut e providing that alie n convicted of aggravated felony is not entitled to automatic stay of deportatio n pending petition for review). The Second Circuit subsequently overruled Jenkins

. See Aguirre v. INS , 79 F.3d 31 5, 316 (2d Cir. 1996). Having considered the supplemental briefing submitted by the parties at our r equest, we conclude that Aguirre does no t affect our interpretation of the Guidelines or our reliance upon Restrepo

Aguilar

. -3- State of fense 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 bo th federal and state law. O ur analysis does not stop here, however, as Briones-Mata's Florida conviction would have been only a misdemeanor under the CSA. Nevert heless, we agree with the First Circ uit that a state drug offense can be an aggravated felony "if the offense i s classified as a felony under the law of the relevant state, even if the same offense would be punish able only as a misdemeanor under federal law." See United States v

. Res trepo-Aguilar , 74 F.3d 361, 365 (1st Cir. 1996). Thus, we conclude the distric t 2 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" unde r 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. W e also reject Briones-Mata's argument that United States v. Taylor , 49 5 U.S. 575, 599 (1990) (formulating "generic" definition of burglary), prohibits looking-4-

to state law to determine wh ether 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 definitio n 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 "a ggravatedfelony" 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.