### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 03/04/99 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 97-5994 Non-Argument Calendar

________________________ D. C. Docket No. 97-547-CV-SM
UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus
JEAN CLAUDE SIMON, Defendant-Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (March 4, 1999) Before TJOFLAT, EDMONDSON and BLACK, Circuit Judges. BLACK, Circuit Judge:1 We apply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing, 18 U.S.C. §§ 3553(a)(4)-(5), unless a more lenient punishment would result under the Guidelines version in effect on the date the offense was committed. United States v. Wilson , 993 F.2d 214, 216 (11th Cir. 1993) (internal citations omitted). We therefore apply the 1997 version of the Sentencing Guidelines, which was in effect at the time of sentencing on December 11, 1997, instead of the 1995 Sentencing Guidelines in effect at the time of Simon’s offense on May 27, 1997, because the same punishment would result under both versions of the Guidelines. 2 Appellant Jean Claude Simon appeals his sentence for illegally reentering the United States after deportation, in violati on of 8 U.S.C. § 1326(a). Appellant asserts that the district court erred in im posing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (1997). He contends that the term “aggravated felony” as used in that section does not include his prio r Florida felony conviction for possessing cocaine. We review the district court’s in terpretation of the Sentencing Guidelines de

novo. United States v. Bozza , 132 F.3d 659, 661 (11th Cir. 1998). Section 2L1.2(b)(1)(A) of the 1997 Sentencing Guidelines provides for a 16- level enhancement if the defe ndant previously was deporte d after a conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(1)(A) (1997). 1 The commentary to Section 2L1.2(b)(1)(A) defines “aggravated felony” as it is defined in 8 U.S.C. § 1101(a)(43), which, in turn, defines “aggravated fel ony” in Section 1101(a)(43)(B) to include a “drug trafficking crime (as defined in sec tion 924(c) of Title 18).” U.S.S.G. § 2L1.2, comment (n.1) (1997). Section 924(c) defi nes the term “drug trafficking crime” to include “any felony punishable under the C ontrolled Substances Act (21 U.S.C. 8013 et seq.), the Controlled Substances Impor t and Export Act (21 U.S .C. 951 et seq.), or the Maritime Drug Law Enforcement Act ( 46 U.S.C. App. 1901 et seq.).” 18 U.S.C. § 924(c)(2). We agree with the other circu its that have addressed this question that for a drug offense to come within 18 U.S.C. § 924(c)(2), and hence to fit within the definition of aggravated felony, two criteria must be met: (1) the offense must be punishable under one of the three enumerated statutes, and (2) the offense must be a felony. See United States v. Restrepo-Aguilar , 74 F.3d 361, 364 (1st Cir. 1996); United States v. Polanco , 29 F.3d 35, 38 (2d Cir. 1994); United States v. HinojosaLopez , 130 F.3d 691, 694 (5th Cir. 1997); United States v. Briones-Mata , 116 F.3d 308, 309-310 (8th Cir. 1997); United States v. Garcia-Olmedo , 112 F.3d 399, 400-401 (9th Cir. 1997); United States v. Cabrera-Sosa , 81 F.3d 998, 1000 (10th Cir. 1996). Appellant does not dispute the first crite rion. The Controlled Substances Act (CSA) provides that possession of cocaine is a punishable offense, albeit as a misdemeanor. 21 U.S.C. § 844(a). Appe llant does dispute the second criterion, contending that his prior conviction is not an “aggravated felony” because it is only a misdemeanor offense under the CSA. Id. He reads 18 U.S.C. § 924(c)(2) to define “drug trafficking crime” as any offense punishable as a felony under the CSA. Simon ignores the plain language of the CSA which defines a felony as “any Federal or State offense classified by app licable Federal or State law as a felony.” 21 U.S.C. §2 Simon also contends that the state law definition of drug “trafficking” does not include his prior conviction for simple possession of cocaine. Smith’s argument is meritless because trafficking crimes are defined under the CSA and federal, not state, definitions govern under the Guidelines. See United States v. Tamayo , 80 F.3d 1514, 1523 (11th Cir. 1996). 4 802(13); see also Restrepo-Aguilar , 74 F.3d at 364 (“Section 924(c)(2)’s definition of ‘drug trafficking crime’ by its terms incl udes ‘any felony’ that is criminalized under the CSA.”). Since Appellant was convictedof possession of cocaine, a third-degree felony under Florida law, he has committe d a felony for purposes of Section 924(c)(2). The district court therefore correctly imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). 2
AFFIRMED.