In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-3476, 06-3987 & 06-3994

OMAR C. FERNANDEZ, FLORENCIO VICTOR

JIMENEZ-MATEO, and JULIO CALDERON,

Petitioners,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

Petitions for Review from Decisions

of the Board of Immigration Appeals

Nos. A43-771-790, A14-833-354

and a Final Administrative Order of the

Office of Immigration and Customs Enforcement

No. A70-563-201

ARGUED OCTOBER 30, 2007—DECIDED SEPTEMBER 15, 2008

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge. Petitioners Florencio Victor

Jimenez-Mateo, Julio Calderon, and Omar CendejasFernandez (collectively “petitioners”) were ordered

removed from this country. The orders of removal were
2 Nos. 06-3476, 06-3987 & 06-3994

based on findings that petitioners’ most recent state-court

convictions for drug possession offenses constituted

aggravated felonies under § 101(a)(43)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B),

because each of the petitioners had previously been

convicted of a controlled substance offense. The petitioners have filed timely petitions for review in this court.

They assert that their first and second state-court convictions for simple drug possession cannot amount to an

“aggravated felony” under § 101(a)(43)(B) of the INA.

Because we have already found in United States v. PachecoDiaz, 506 F.3d 545 (7th Cir. 2007), that such convictions

do constitute an “aggravated felony” under § 101(a)(43)(B)

of the INA, we deny their petitions for review.

I.

We briefly summarize the facts and procedural history

of each of the petitioners’ cases below.

A. Julio Calderon

Calderon is a citizen of Mexico who entered the United

States illegally. He is also a documented member of the

Latin Kings street gang, a national criminal organization

based in Chicago. See generally United States v. Olson, 450

F.3d 655, 661-62 (7th Cir. 2006) (describing the organization of the Latin Kings). As one might expect of a member

of the Latin Kings, Calderon has had several run-ins with

the law. Most relevant to this opinion, however, are

Calderon’s convictions for marijuana possession: an
Nos. 06-3476, 06-3987 & 06-3994 3

October 30, 2002 conviction for marijuana possession

in violation of 720 ILCS 550/4(a), and an August 8, 2006

conviction for two counts of marijuana possession in

violation of 720 ILCS 550/4(a) and (b).

In October 2006, the Department of Homeland Security

(“DHS”) initiated removal proceedings against Calderon.

DHS charged that Calderon was subject to removal under

§ 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii),

for having been convicted of an aggravated felony as

defined in § 101(a)(43) of the INA, 8 U.S.C. § 1101(a)(43).

DHS listed Calderon’s three marijuana possession

offenses as the basis for the aggravated felony charge. On

November 8, 2006, DHS issued a final administrative

removal order finding that Calderon was an aggravated

felon and ordering him removed from the United States

to Mexico. Calderon timely filed a petition for review of

DHS’s order in this court.

B. Omar Cendejas-Fernandez (“Fernandez”)

Fernandez is a citizen of Mexico who was admitted to the

United States as a lawful permanent resident in 1992. On

September 28, 2001, Fernandez was convicted of two

counts of cocaine possession in violation of 720 ILCS

570/402(c). On November 7, 2005, Fernandez again was

convicted of cocaine possession in violation of 720 ILCS

570/402(c).

On March 29, 2006, DHS initiated removal proceedings

against Fernandez. DHS charged that Fernandez was

removable under § 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
4 Nos. 06-3476, 06-3987 & 06-3994

§ 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony as defined in § 101(a)(43)(B) of the INA,

8 U.S.C. § 1101(a)(43)(B). Fernandez was ordered to

appear before an Immigration Judge (“IJ”). After a hearing

on May 22, 2006, the IJ issued an oral decision ordering

that Fernandez be removed to Mexico. In reaching that

decision, the IJ first cited this court’s decision in Ali v.

Ashcroft, 395 F.3d 722 (7th Cir. 2005), wherein we

stated that any alien who has been convicted of a state

controlled substance offense that is also a felony punishable under the Controlled Substances Act (“CSA”) has, for

immigration purposes, been convicted of an aggravated

felony. The IJ then noted that Fernandez had been convicted of possessing a controlled substance in 2005 after a

previous conviction for possessing a controlled substance

in 2001. Because § 844(a) of the CSA, 21 U.S.C. § 844(a),

makes drug possession punishable by more than one year

of imprisonment—and hence a felony, see 18 U.S.C.

§ 3559(a)(5)—for those who have previously been convicted of a controlled substance offense, the IJ found by

clear and convincing evidence that Fernandez had been

convicted of an aggravated felony and was removable on

that basis. In addition, the IJ found Fernandez statutorily

ineligible for cancellation of removal. See 8 U.S.C.

§ 1229b(a)(3).

Fernandez appealed the IJ’s decision to the Board of

Immigration Appeals (“Board”). He argued that the IJ

should not have found that his convictions qualified as

an aggravated felony. The Board, however, agreed with

the IJ that a state offense for possession of a controlled

substance that occurred after a prior drug conviction
Nos. 06-3476, 06-3987 & 06-3994 5

qualified as a “drug trafficking crime” under

§ 101(a)(43)(B) of the INA, 8 U.S.C. § 1101(a)(43)(B),

because, under § 844(a) of the CSA, the most recent conviction would be defined as a felony. Consequently, the

Board affirmed the IJ’s decision. Fernandez filed a timely

petition in this court for review of the Board’s decision.

C. Florencio Victor Jimenez-Mateo (“Mateo”)

Mateo is a citizen of the Dominican Republic who was

admitted to the United States on an immigrant visa in

October 1966. On December 23, 1989, Mateo was convicted of possessing a controlled substance in violation

of New York Penal Law § 220.03. On April 26, 2002, Mateo

was convicted of attempted possession of a controlled

substance in violation of 720 ILCS 5/8-4. On April 12,

2006, Mateo received his third controlled-substance

conviction, this time for possession of a controlled substance in violation of 720 ILCS 570/402(c).

After his conviction in April 2006, DHS filed a notice to

appear charging that Mateo was removable under

§ 237(a)(2)(B)(I) of the INA, 8 U.S.C. § 1227(a)(2)(B)(I),

because of his April 2006 conviction for possession of a

controlled substance. At a hearing before an IJ, Mateo

through counsel conceded that he was removable as

charged, but sought cancellation of removal. In an oral

decision, the IJ found that Mateo was removable from

the United States as an alien convicted of a controlled

substance violation. The IJ also found that Mateo was

statutorily ineligible for cancellation of removal because

he had been convicted of an aggravated felony. In particu-
6 Nos. 06-3476, 06-3987 & 06-3994

lar, the IJ classified Mateo’s 2006 drug possession offense

as an aggravated felony, since that offense occurred after

Mateo had been convicted previously of two controlled

substance offenses. Mateo appealed the IJ’s aggravated

felony finding to the Board, but the Board affirmed the

IJ’s decision. Mateo then filed a timely petition for

review of the Board’s order affirming the IJ.

II.

The sole issue on this appeal is whether the second (or,

as is the case with Mateo, third) of each of the petitioners’

multiple state-court convictions for drug possession was

accurately characterized as an aggravated felony under

§ 101(a)(43)(B) of the INA. Section 101(a)(43) of the INA

provides an extensive list of crimes that qualify as aggravated felonies. Specifically, subsection 101(a)(43)(B) adds

“illicit trafficking in a controlled substance . . . including

a drug trafficking crime (as defined in section 924(c) of

Title 18) . . . whether in violation of Federal or State law” to

that list. 8 U.S.C. § 1101(a)(43). Section 924(c), in turn,

defines the term “drug trafficking crime” as, among other

things, “any felony punishable under the Controlled

Substances Act (21 U.S.C. 801 et seq.).” 18 U.S.C.

§ 924(c)(2). As the Supreme Court has stated, a state drug

offense is considered “analogous” to a “felony punishable

under the Controlled Substances Act,” and, as a result, an

aggravated felony for purposes of the INA, “only if it

proscribes conduct punishable as a felony under that

federal law.” Lopez v. Gonzales, 127 S. Ct. 625, 632 n.8, 633

(2006).
Nos. 06-3476, 06-3987 & 06-3994 7

In this case, the petitioners argue that their state convictions were wrongly classified as aggravated felonies

because the state statutes under which they were convicted

only proscribe simple possession, which is not a felony

under the CSA. In response, the government contends

that the petitioners’ most recent convictions for drug

possession are analogous to what the courts refer to as

“recidivist possession” under 21 U.S.C. § 844(a), which is

a felony under the CSA, because those convictions were

preceded by at least one prior drug possession conviction. The pertinent portion of § 844(a) states:

It shall be unlawful for any person knowingly or

intentionally to possess a controlled substance. . . . Any

person who violates this subsection may be sentenced

to a term of imprisonment of not more than 1 year, and

shall be fined a minimum of $1,000, or both, except

that if he commits such offense after a prior conviction under this subchapter or subchapter II of this

chapter, or a prior conviction for any drug, narcotic, or

chemical offense chargeable under the law of any

State, has become final, he shall be sentenced to a term

of imprisonment for not less than 15 days but not

more than 2 years, and shall be fined a minimum of

$2,500 . . . .

21 U.S.C. § 844(a). The second sentence in the portion of

§ 844(a) quoted above transforms what would ordinarily

be a misdemeanor offense for simple possession into a

felony where the current offense was preceded by a prior

conviction for a controlled substance offense. However, for

the government to obtain a felony conviction under
8 Nos. 06-3476, 06-3987 & 06-3994

Illinois law requires that the defendant be given notice of the 1

state’s intention to seek such an enhancement in the charge.

725 ILCS 5/111-3(c).

§ 844(a), it has to, pursuant to 21 U.S.C. § 851, file notice of

the prior conviction and, if challenged, prove to the judge

the existence of the prior conviction beyond a reasonable

doubt. The petitioners therefore counter the government’s

argument by asserting that the Illinois statutes under

which the petitioners were most recently convicted are

not the state “counterparts” to a felony violation of

§ 844(a), since none of those statutes required the state of

Illinois to give notice of the petitioners’ prior convictions

or prove the existence of those convictions, as § 851

would have required had petitioners been prosecuted in

federal court. While Illinois law does provide for a sentencing enhancement for recidivist drug possession, 720

ILCS 570/408(a), none of the petitioners’ sentences for

their most recent possession offenses was enhanced

under that provision. Thus, the real question in this 1

case is whether an alien’s second (or subsequent) state

conviction for simple drug possession amounts to an

aggravated felony in terms of a “felony punishable

under the Controlled Substances Act” when the state

did not treat the alien as a recidivist.

In this circuit, that question has already been answered,

albeit in a different context. Just before oral argument in

this case, this court decided United States v. Pacheco-Diaz

(Pacheco I), 506 F.3d 545 (7th Cir. 2007). In Pacheco I, this

court addressed the question of whether an alien’s
Nos. 06-3476, 06-3987 & 06-3994 9

Pacheco-Diaz had been convicted of reentering the United 2

States after previously having been deported, in violation of

8 U.S.C. §§ 1326(a) and (b)(2). Pacheco I, 506 F.3d at 547.

second state conviction for simple possession of marijuana

constituted an aggravated felony for purposes of determining a sentencing enhancement under § 2L1.2(b)(1)(C) of the

United States Sentencing Guidelines. Section 2

2L1.2(b)(1)(C) of the guidelines instructs a sentencing

court to enhance a defendant’s offense level eight levels

if the defendant previously was deported after a conviction for an aggravated felony. The application notes to

§ 2L1.2 explain that, for purposes of subsection (b)(1)(C),

the term “aggravated felony” has the same meaning as

given in § 101(a)(43) of the INA. U.S.S.G. § 2L1.2 application note 3(A) (2007). The district court had found that the

sentencing enhancement applied because, among other

things, Pacheco-Diaz’s January 2002 conviction for marijuana possession, following as it did an October 2000

conviction for marijuana possession, would be treated as

a federal felony under the recidivist enhancement provision of 21 U.S.C. § 844(a). Pacheco I, 506 F.3d at 548.

This court in Pacheco I agreed with that reasoning. In

our opinion, we first referenced footnote six of the Supreme Court’s opinion in Lopez v. Gonzales, wherein the

Supreme Court noted that Congress had indeed classified

a § 844(a) felony offense as “illicit trafficking,” thus bringing that offense within the definition of an aggravated

felony under § 101(a)(43)(B) of the INA. Pacheco I, 506 F.3d

at 548. We recognized that a circuit split existed in the
10 Nos. 06-3476, 06-3987 & 06-3994

sentencing context regarding the treatment of § 844(a)

with respect to the INA’s aggravated felony definition.

We sided with those circuits that analogized a second

state conviction for drug possession to § 844(a) when

determining whether that state conviction constituted an

aggravated felony for purposes of the sentencing guidelines. Id. at 549 (citing United States v. Palacios-Suarez, 418

F.3d 692, 700 (6th Cir. 2005); United States v. SanchezVillalobos, 412 F.3d 572, 576-77 (5th Cir. 2005); United States

v. Simpson, 319 F.3d 81, 85-86 (2d Cir. 2002)). “Had Pacheco

been charged in federal court with his second drug possession charge,” we stated, “he would have been eligible

for a recidivist enhancement under section 844(a).” Id. at

550. The second state possession conviction was

analogous to a felony under the CSA because § 844(a)

would have exposed Pacheco to a possible sentence of

imprisonment of two years had it been charged in federal

court. That made the conviction analogous to a “drug

trafficking crime” under § 924(c), and, as a consequence,

an aggravated felony under § 101(a)(43)(B) of the INA. Id.

Pacheco later petitioned for rehearing. Citing the oral

argument in this case, Pacheco argued that rehearing

should be granted because he had raised the same argument that petitioners raise here, namely, that a second

state drug-possession offense cannot be treated as a

federal felony under § 844(a) when the alien was not

charged in state court as a recidivist. The opinion in Pacheco

I, Pacheco asserted, overlooked that argument. Pacheco

also argued that this court in Pacheco I did not fully consider the application of the Supreme Court’s decision

in Lopez v. Gonzales, 127 S. Ct. 625 (2006), in rendering
Nos. 06-3476, 06-3987 & 06-3994 11

its decision. Finally, Pacheco argued that rehearing

should be granted because two other circuits had decided

the issue differently after Pacheco I had been submitted.

We denied Pacheco’s motion for rehearing. United States

v. Pacheco-Diaz (Pacheco II), 513 F.3d 776 (7th Cir. 2008) (per

curiam). This court was not swayed by the fact that

Pacheco’s Illinois convictions were not based on that

state’s recidivist statute. Lopez, we said, held that classification of an offense for the purpose of § 101(a)(43) depends

on how the defendant’s conduct would be treated under

federal law:

If the conduct of which the defendant has been convicted would be a felony under federal law, then it

comes within [§ 101(a)(43) of the INA] if it meets that

statute’s requirements concerning the subject-matter

of the crimes and the length of the sentence. . . . In a

hypothetical-federal-felony approach, it does not

matter whether the defendant was charged in state

court as a recidivist; indeed, it does not matter

whether the state has a recidivist statute in the first

place. What provides the classification under

[§ 101(a)(43)] is federal rather than state law.

Id. at 778-79. We concluded: “Looking at the conduct

reflected in the state convictions, as opposed to the

precise state crime charged, is the only way to implement

the hypothetical-federal-felony view that Lopez adopted

as its holding.” Id. at 779.

Shortly after oral argument, we ordered supplemental

briefing on the application of Pacheco I to this case. In
12 Nos. 06-3476, 06-3987 & 06-3994

their supplemental brief, the petitioners make several

arguments as to why Pacheco I does not apply to this case,

all of which we reject. First, the petitioners argue that

Pacheco I does not apply because it was a sentencing case,

while this is an immigration case. In support of that

argument, petitioners point out that this court in Pacheco I

cited only sentencing cases from other circuits on

the question of whether a second state possession conviction amounted to an aggravated felony; no reference

was made to any of the immigration cases dealing with

this issue. Compare Pacheco I, 506 F.3d at 549 (citing sentencing cases that have dealt with this issue), with In re

Carachuri-Rosendo, 24 I&N Dec. 382, 385 (BIA 2007) (en

banc) (citing both immigration and sentencing cases). The

lack of citations to immigration cases in Pacheco I is insignificant. We interpret the identical statutory provisions

in this case as the court did in Pacheco I. Our interpretation of the same statutes should be consistent, regardless

of the context. See Clark v. Martinez, 543 U.S. 371, 378

(2005) (“To give these same [statutory] words a different

meaning for each category [of aliens] would be to invent

a statute rather than interpret one.”); see also Leocal v.

Ashcroft, 543 U.S. 1, 12 n.8 (2004) (stating that statute

must be interpreted consistently whether it is encountered in a criminal or an immigration context).

Relying on dicta in Gonzales-Gomez v. Achim, 441 F.3d

532, 535-36 (7th Cir. 2006), petitioners nevertheless

insist that immigration cases call for a different interpretation of the aggravated felony definition than sentencing cases. The dicta in Gonzales-Gomez to which

petitioners refer was made in the context of distin-
Nos. 06-3476, 06-3987 & 06-3994 13

guishing sentencing decisions in other circuits from

holdings in this court. Regardless of what was said in

Gonzales-Gomez, any distinction between sentencing

and immigration for purposes of interpreting identical

provisions of the aggravated felony definition is foreclosed after the Supreme Court’s decision in Lopez v.

Gonzales, 127 S. Ct. 625 (2006). In Lopez, the Supreme Court

drew no distinction between sentencing cases and immigration cases. Though Lopez itself was an immigration

case, the Supreme Court cited—and its opinion abrogated—lower court sentencing cases. See Lopez, 127 S. Ct.

at 629 n.3 (citing, among other sentencing cases, United

States v. Wilson, 316 F.3d 506 (4th Cir. 2003), and United

States v. Simon, 168 F.3d 1271 (11th Cir. 1999)). Thus, the

Court clearly signaled that it meant any interpretation of

§ 101(a)(43) of the INA to apply uniformly, regardless of

the context.

Second, petitioners cite the Board’s decisions in In re

Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007), and In re

Thomas, 24 I&N Dec. 416 (BIA 2007), as a reason to distinguish Pacheco I. Those cases were decided after the

Pacheco I opinion was released. In them, a majority of

the Board held that, absent controlling federal circuit

precedent to the contrary, an alien’s state conviction

for simple possession of a controlled substance “will not

be considered an aggravated felony conviction on the

basis of recidivism unless the alien’s status as a recidivist

drug offender was either admitted by the alien or determined by a judge or jury in connection with a prosecution

for that simple possession offense.” Carachuri, 24 I&N Dec.

at 394. Board Member Roger Pauley filed a concurring
14 Nos. 06-3476, 06-3987 & 06-3994

Judge Rovner dissented in Pacheco II and, citing the majority 3

of the Board’s decision in Carachuri, stated that she believed the

approach this court took in Pacheco I may have been mistaken.

Pacheco II, 513 F.3d at 781 (Rovner, J., dissenting).

opinion in Carachuri, joined by Acting Vice Chairman

Gerald Hurwitz, taking the opposite view. See id. at 400.

We fail to see how the Board’s decision to spurn Pacheco

I affects the outcome in this case. This court in Pacheco II

was unconcerned about the Board’s about-face in Carachuri.

We not only explicitly stated in Pacheco II that we

agreed with the reasoning of Board Member Pauley’s

concurring opinion, but also that we disagreed with

the majority of the Board’s conclusion that a state possession offense could only be an aggravated felony if the

alien was treated as a recidivist in state court. Pacheco II,

3

513 F.3d at 778. We see no reason to deviate from that view.

Next, the petitioners argue that Pacheco I should not

apply here because the court in Pacheco I was not presented with what, according to the petitioners, is the “key

legal issue” raised in this case, namely, “whether an

immigrant who was not charged and convicted as a

recidivist in criminal court” can nevertheless be labeled

an aggravated felon. Petitioners argue that Lopez mandates

a “strict categorical approach” that allows courts to

examine only what the state statutory offense under

which the immigrant was charged proscribes when

determining whether federal law defines the offense as

a felony. See Taylor v. United States, 495 U.S. 575, 602 (1990).

Because none of the petitioners was charged as a
Nos. 06-3476, 06-3987 & 06-3994 15

See Brief of Defendant-Appellant at 27-29, United States v. 4

Pacheco-Diaz, No. 05-2264 (7th Cir. May 8, 2006); Reply Brief of

Defendant-Appellant at 2-6, United States v. Pacheco-Diaz, No. 05-

2264 (7th Cir. Sept. 22, 2006). 

“Analogous” is the term that was used by the Supreme Court 5

for determining whether a state offense, when compared to a

federal offense listed in § 101(a)(43) of the INA, qualifies as

an aggravated felony. Lopez, 127 S. Ct. at 632 n.8 (citing Matter

of Barrett, 20 I&N Dec. 171, 178 (BIA 1990)).

recidivist in state court, petitioners argue that their state

possession offenses cannot be treated as “analogous” to

recidivist possession under § 844(a) for purposes of the

aggravated felony definition.

There are two problems with that line of argument. First,

arguably raised in both Pacheco’s initial and reply briefs,4

it was treated by the court in the passages of the Pacheco II

opinion we have quoted above. Second, and more importantly, it does not survive scrutiny on the merits. Ordinarily, in order to determine whether a state offense is

“analogous” to a federal offense listed in the INA’s 5

definition of an aggravated felony, this court and others

categorically compare the elements of the state offense

with the elements of the federal offense. See, e.g., Gonzales

v. Duenas-Alvarez, 127 S. Ct. 815, 818-19 (2007); see also

Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005). We

explained the operation of the so-called “categorical”

approach in Gattem: “one looks to the elements of the

state offense in question and, where necessary, to the

charging document pursuant to which the petitioner
16 Nos. 06-3476, 06-3987 & 06-3994

was convicted, to determine whether the offense corresponds to one of the crimes described as aggravated

felonies in the INA.” 412 F.3d at 765.

While that approach works for many cases, applying a

strict categorical approach in this case does not resolve

the issue of whether the petitioners’ multiple drug

offenses qualify as aggravated felonies. The elements of

the Illinois possession offenses the petitioners committed

and the elements of both a felony and a misdemeanor

violation of § 844(a) are the same. Compare United States v.

Stone, 139 F.3d 822, 834 (11th Cir. 1998) (describing elements of a § 844(a) possession offense), with People v.

Frieberg, 589 N.E.2d 508, 524 (Ill. 1992) (describing elements

of a violation of 720 ILCS 570/402), People v. Davis, 519

N.E.2d 103, 105 (Ill. App. Ct. 1988) (describing elements

of Illinois offense of possession of a controlled substance), and 2 Illinois Pattern Jury Instruction-Criminal

17.02 (4th ed. 2000) (describing elements of possession of

cannabis in violation of 720 ILCS 550/4). Recidivism is the

key ingredient in differentiating between a felony and a

misdemeanor offense for drug possession under federal

law. However it is not an element of the offense of drug

possession, but instead is simply a penalty provision. It

enhances the maximum possible sentence for a drug

possession offense from one to two years if the defendant

commits the offense after a prior conviction for a controlled substance offense has become final. See 21 U.S.C.

§ 844(a); see also Almendarez-Torres v. United States, 523 U.S.

224, 244 (1998) (“Congress . . . has never, to our knowledge,

made a defendant’s recidivism an element of an offense

where the conduct proscribed is otherwise unlawful.”);
Nos. 06-3476, 06-3987 & 06-3994 17

Stone, 139 F.3d at 834. Thus, the fact that the state offense

of conviction did not contain a recidivist element is irrelevant. What makes a state offense for drug possession

analogous to a federal felony (and thus an aggravated

felony) as opposed to a federal misdemeanor is the heightened penalty for recidivism, which is not an element of

the offense.

The dissent points out that Justice Thomas’s concurrence

in Apprendi signals that Almendarez-Torres may not be the

law of the land much longer. Infra at 38 n.3. But until

the Supreme Court explicitly overrules that case, we are

bound by it. See United States v. Hendrix, 509 F.3d 362, 375

(7th Cir. 2007) (“[W]e have held that unless and until

the Supreme Court chooses to overrule Almendarez-Torres,

we are bound by it.” (citing cases)); see also Calloway v.

Montgomery, 512 F.3d 940, 946 (7th Cir. 2008) (“AlmendarezTorres still lives.”); see generally Saban v. U.S. Dep’t of Labor,

509 F.3d 376, 378 (7th Cir. 2007) (“The Supreme Court

has told the lower courts that they are not to anticipate

the overruling of a Supreme Court decision, but are to

consider themselves bound by it until and unless the

Court overrules it, however out of step with current trends

in the relevant case law the case may be.”). AlmendarezTorres, along with the language and structure of § 844(a),

makes clear that the heightened penalty for recidivism

is not an element of a § 844(a) offense. Because recidivism

is not an offense element, a categorical comparison of the

elements of § 844(a) and the petitioners’ most recent

state possession offenses is inconclusive.

Although the categorical approach does not settle the

matter, Lopez does. The Supreme Court in Lopez held that
18 Nos. 06-3476, 06-3987 & 06-3994

See 720 ILCS 570/408(a). 6

a state drug felony was not an aggravated felony where

the conduct proscribed by the state felony would have

only been penalized as a misdemeanor under federal law.

According to Lopez, what counts is the classification of the

analogous federal offense as a felony. The state’s decision to classify the offense as a felony or a misdemeanor

is beside the point. See Lopez, 127 S. Ct. at 632-33 (“We

cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose

to punish a given act more heavily.”).

In this case, the increased penalty that converts a

simple misdemeanor offense for drug possession into a

felony, like the lesser penalty for the offense that was the

subject of Lopez, 127 S. Ct. at 628, is purely a matter of

federal law. Again, Lopez tells us that, when it comes to

determining the consequences of a state offense for purposes of federal immigration law, federal law, not state

law, counts. While the state of Illinois conceivably could

have enhanced the petitioners’ state sentences under the

Illinois provision similar to § 844(a), that is beside the

6

point. The question is whether the petitioners would

have been subject to the increased penalty for having

committed a prior drug offense had they been charged

in federal court. As none of the petitioners disputes the

existence of their prior convictions, the answer to that

inquiry here must be “yes”; the petitioners’ most recent

state possession offenses are therefore properly classified

as aggravated felonies.
Nos. 06-3476, 06-3987 & 06-3994 19

What the petitioners really object to, of course, is this

court looking at the petitioners’ prior drug convictions

in order to determine that their most recent convictions

constitute aggravated felonies. They say that our going

beyond the record of the most recent state offense is not

allowed by Lopez, and that we are in effect “retrying” those

offenses by doing so. But transcending the state offense

in order to determine its analogous federal counterpart is

exactly what the aggravated felony statute and Lopez

require. Section 101(a)(43) of the INA states that the term

aggravated felony “applies to an offense described in this

paragraph whether in violation of Federal or State law.”

8 U.S.C. § 1101(a)(43). In order to determine if a state

offense is “described” by a federal offense incorporated

into § 101(a)(43), we necessarily have to view the state

offense through the lens of federal law, since “it is just

not plausible that Congress meant to authorize a State to

overrule its judgment about the consequences of federal

offenses to which its immigration law expressly refers.”

Lopez, 127 S. Ct. at 633.

Moreover, going beyond the fact of the most recent

possession conviction to make that determination is

entirely consistent with Taylor v. United States, 495 U.S. 575

(1990). In Taylor, the Court adopted a “modified” categorical approach, under which, where a defendant was convicted of a state law burglary offense that was broader

than the generic definition of burglary, a sentencing

court could “go beyond the mere fact of conviction” to

determine whether the “jury was actually required to find

all the elements of generic burglary.” Taylor, 495 U.S. at

602. Thus, where a state statute permitted a defendant to
20 Nos. 06-3476, 06-3987 & 06-3994

In Shepard v. United States, 544 U.S. 13 (2005), the Court 7

extended that approach to the context of guilty pleas, holding

that a sentencing court may consider “the terms of the charging

document, the terms of a plea agreement or transcript of [a

plea] colloquy between judge and defendant [or] some comparable judicial record” in determining whether the defendant

actually pleaded guilty to, and was convicted of, generic

burglary. Id. at 26.

be convicted of burglary for stealing from a place other

than a building (such as an automobile), the government

could still use that conviction for purposes of obtaining

an enhancement under the Armed Career Criminal Act if

it could show, from the charging document and the

jury instructions, that the defendant was actually convicted of stealing from a building (and not an automobile). Id.

7

This case is simply a corollary application of the approach explicitly recognized as permissible in Taylor. Here,

because the definition of the Illinois possession offenses

under which petitioners were convicted are

overbroad—i.e., conduct punishable under those Illinois

statutes could constitute either a federal misdemeanor

or federal felony, depending on whether those offenses

occurred after a previous drug conviction became final—we must look at the records of the petitioners’ prior

convictions to determine the federal consequences of the

petitioners’ offenses. Importantly, in so doing, we, consistent with Taylor, need not delve into the underlying facts

of the petitioners’ state convictions. See Taylor, 495 U.S. at

600 (“Congress intended the sentencing court to look only
Nos. 06-3476, 06-3987 & 06-3994 21

to the fact that the defendant had been convicted of crimes

falling within certain categories, and not to the facts

underlying the prior convictions.”); Pacheco II, 513 F.3d

at 778-79.

The dissent is rightly concerned with the danger of

“hypothetical ‘what-ifing.’ ” Infra at 31-32. But that concern

is not present in this case. In finding that the petitioners’

state court offenses qualify as aggravated felonies, we are

not looking at the real offense conduct underlying

the petitioners’ state offenses in order to conjure up a

hypothetical state offense that is then analogous to a

hypothetical federal offense. Rather, we are only looking

at the state offenses for which the petitioners were in fact

convicted: a state drug possession offense after a previous

drug offense. (Notably, none of the petitioners contest the

fact that they have such a record.)

We respectfully suggest that it is only the dissent that

is dealing in hypotheticals. The offense that the dissent

implies the petitioners ought to have been convicted of

in state court to qualify as aggravated felons—i.e., a

possession offense with a recidivist element—does not

currently exist in Illinois. Illinois’s sentencing enhancement for recidivist drug possession, like § 844(a), does not

create a separate offense for “recidivist possession.” See

720 ILCS 570/408(a); 725 ILCS 5/111-3(c) (“[T]he fact of

such prior conviction and the State’s intention to seek

an enhanced sentence are not elements of the offense

and may not be disclosed to the jury during trial . . . .”); see

also People v. Bradford, 543 N.E.2d 918, 930 (Ill. App. Ct.

1989).
22 Nos. 06-3476, 06-3987 & 06-3994

After this case was briefed and argued, the Sixth Circuit 8

decided Rashid v. Mukasey, 531 F.3d 438 (6th Cir. 2008), wherein

the Sixth Circuit reached the same conclusion as the First

Circuit in Behre and the Third Circuit in Steele.

The Third Circuit’s concern also stemmed from a de- 9

sire—echoed by the dissent, see infra at 34-35—to assure that

(continued...)

Petitioners bring to our attention two immigration cases

from other circuits, not cited in either Pacheco I or Pacheco

II, that have decided this issue differently. See Berhe v.

Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236

F.3d 130 (3d Cir. 2001). In those cases, the courts decided 8

that subsequent state possession offenses were not aggravated felonies because the records of conviction for

those state offenses did not reveal that the state courts

followed procedures analogous to those outlined in 21

U.S.C. § 851. Steele, 236 F.3d at 137-38; see also Berhe, 464

F.3d at 85-86. (Recall that § 851 requires the government

to file an information alleging the prior drug conviction

and prove it, if contested, beyond a reasonable doubt to

a judge.) The Third Circuit in Steele based its decision

in large part on its concern about the fairness of transforming two state misdemeanors into an aggravated

felony. According to the Third Circuit, defendants do not

address misdemeanor charges with the same caution

and care as a felony indictment. If states did not have

procedures similar to § 851 in place, the Third Circuit

reasoned, then defendants would not realize the grave

immigration consequences that would attach to their

misdemeanor plea. Steele, 236 F.3d at 137. 9
Nos. 06-3476, 06-3987 & 06-3994 23

(...continued) 9

defendants were not found to be aggravated felons on the basis

of constitutionally invalid prior convictions. See Steele, 236

F.3d at 138 (“For all that the record before the immigration

judge reveals, the initial conviction may have been constitutionally impaired.”); see also Rashid, 531 F.3d at 447 (quoting

Steele). Such a concern does not apply here, however, because

ordinarily aliens in removal proceedings are not permitted to

collaterally challenge their convictions. See, e.g., Taylor v. United

States, 396 F.3d 1322, 1330 (11th Cir. 2005); Trench v. INS,

783 F.2d 181, 184 (10th Cir. 1986).

We “carefully consider the opinions of our sister circuits.” Klein v. DePuy, Inc., 506 F.3d 553, 558 (7th Cir. 2007).

In this instance, we are unpersuaded by what, in our

view, is a misdirected approach to the issue before us. The

Third Circuit’s fairness concern is inconsistent with

Lopez; Lopez holds clearly that state felony-misdemeanor

classifications are meaningless for purposes of determining whether a state offense is an aggravated felony

under the immigration laws. Moreover, the First and

Third Circuits, in requiring the record of an alien’s most

recent state-court possession conviction to demonstrate

that some form of the procedures outlined in § 851 were

followed in state court, essentially elevate those procedures to the level of an element of the offense. See Steele,

236 F.3d at 137 (“While the status of being ‘a one time

loser’ is not technically an element of the offense proscribed by § 844, we agree with the District Court that it

can be treated as such.”); see also Berhe, 464 F.3d at 85-86;

Gerbier v. Holmes, 280 F.3d 297, 317 (3d Cir. 2002). The
24 Nos. 06-3476, 06-3987 & 06-3994

Indeed, the statute explicitly states that the existence or 10

validity of a prior conviction, if challenged, is to be determined

by the court, not a jury. 21 U.S.C. § 851(c) (“The court shall

hold a hearing to determine any issues raised . . . . The hearing

shall be before the court without a jury . . . .”).

problem with that approach is that the § 851 procedures

are clearly not an element of a § 844(a) offense. We do not 10

doubt, of course, that a federal defendant charged under

§ 844(a) could not receive a felony sentence unless the

government complied with the procedures in § 851 for

providing notice and proof of a prior drug conviction.

See United States v. LaBonte, 520 U.S. 751, 754 n.1 (1997);

Harris v. United States, 149 F.3d 1304, 1306 (11th Cir. 1998).

But we do not see any reason to require that a state

have followed the exclusively federal procedures set forth

in § 851 in order for a state offense to qualify as an aggravated felony. Such a requirement, to us, would run contrary to the aggravated felony statute’s clear language

that an “offense described in” that statute qualifies as an

aggravated felony “whether in violation of Federal or

State law.” 8 U.S.C. § 1101(a)(43). Thus, we respectfully

disagree with those circuits that hold otherwise.

Petitioners make one other argument that merits attention. They argue that, if we follow the rule of Pacheco I

here, then a second federal misdemeanor conviction for

simple drug possession could be treated as if it were a

federal felony, despite the fact that such a conviction is

clearly not a felony under federal law. They argue that

such a result “turn[s] the Lopez standard on its head.” We
Nos. 06-3476, 06-3987 & 06-3994 25

are quite skeptical that such a result follows from reaffirming Pacheco I. The petitioners’ argument presumes

that one could analogize misdemeanor violations of a

federal offense specifically incorporated into the aggravated felony definition to a felony violation of the same

incorporated federal offense. Analogizing makes sense

when determining whether a state conviction qualifies as

an aggravated felony. The statute says that offenses

described in the aggravated felony definition count

“whether in violation of Federal or State law.” Id. As most

of the offenses listed in or incorporated into the aggravated felony definition (besides the generic offenses

such as murder and rape) are strictly federal, some

mode of comparing state crimes to those federal crimes

is necessary. But analogizing makes little sense when

dealing with a conviction for a federal offense, like § 844(a),

that is specifically incorporated into the aggravated

felony definition. Since those federal statutes are specifically referenced in the aggravated felony definition, there

is no need to compare anything. A violation of one of those

statutes either is, or is not, a felony, and thus is, or is not,

an aggravated felony.

We need not pursue the matter any further. The hypothetical the petitioners pose implicates other concerns

not present in a case, such as this one, where the main

question revolves around analogizing a state offense to a

federal offense specifically incorporated into the aggravated felony definition.

Finding none of the petitioners’ arguments persuasive,

we conclude that the rule of Pacheco I does apply, and
26 Nos. 06-3476, 06-3987 & 06-3994

that the Board and DHS did not err in finding that the

petitioners were statutorily ineligible for cancellation of

removal on the basis of their having been convicted of

an aggravated felony.

III.

Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), controls this

case. Thus, each of the petitioners’ most recent state court

convictions for drug possession constituted an aggravated felony under the INA because each occurred after

a previous drug conviction became final. We AFFIRM.

ROVNER, Circuit Judge, dissenting. The three petitioners

in this case all have criminal records that include two or

more misdemeanor convictions for simple possession of

an illegal drug. None has a felony conviction. The distinction between felony convictions and misdemeanor convictions is critical to non-citizens who are subject to

removal from this country. (It is also of great import to

those being considered for certain sentencing enhancements under the Sentencing Guidelines, but this is a

topic for another time.) Ordinarily persons subject to

removal may petition the United States Attorney General

and ask that he use his discretion to cancel a removal
Nos. 06-3476, 06-3987 & 06-3994 27

order. 8 U.S.C. § 1229b(a). The Attorney General, however,

has no discretion to cancel the removal of a person who

has been convicted of an aggravated felony. 8 U.S.C.

§ 1229b(a)(3). The battle over what constitutes an aggravated felony, therefore, recurs with some frequency and

fervor in immigration cases. The answer may mean the

difference between the possibility of staying in this country

or leaving behind family, children, and the homes the

petitioners may have known their whole lives. Florencio

Victor Manuel Jimenez-Mateo has lived in this country

for approximately forty-two of his fifty-six years. He has

been a lawful permanent resident since 1971. If deported,

he will be leaving behind his job, his two United States

citizen children and the country he has called home

since his early teens. Julio Cesar Calderon has lived in

this country for twenty of his twenty-eight years. He

has two United States citizen children who reside here.

Omar Cendejas-Fernandez is twenty-five years old and

has lived in this country legally since 1992. They have

each been convicted of two (and in one case three) misdemeanor crimes. Whether the law requires us to consider

these men’s multiple convictions for misdemeanor drug

crimes as felonies for purposes of removal proceedings

is critical to them, as it will be to many others.

The answer lies buried in a maze of cross-referenced

immigration and criminal statutes. Because the majority

has expertly set forth each of the statutes, I need only trace

through them in a cursory fashion. The Immigration

and Nationality Act (INA) defines “aggravated felony”

with a list of crimes that includes drug trafficking. 8

U.S.C. § 1101(a)(43)(B). It also notes that “[t]he term
28 Nos. 06-3476, 06-3987 & 06-3994

[aggravated felony] applies to an offense described in

this paragraph whether in violation of state or federal

law.” Id. at § 1101(a)(43). The INA then points readers to

the criminal code (specifically 18 U.S.C. § 924(c)) for a

definition of a drug trafficking crime. That section of the

criminal code, in turn, defines a drug trafficking crime as

“any felony punishable under the Controlled Substances

Act.” 18 U.S.C. § 924(c)(2). And finally, the Controlled

Substances Act (CSA) turns a second-time drug conviction

into a felony if the government files the necessary information with the court and serves it upon the defendant.

21 U.S.C. § 844, § 851. If this convoluted path has made the

weary reader’s eyes glaze over, they must come into focus

here, for the petitioners win or lose based on how the

Supreme Court instructs the lower courts to decide

whether a particular state crime falls within the rubric of

the CSA. The Supreme Court, in Lopez v. Gonzales, 549 U.S.

47, 127 S. Ct. 625, 633 (2006), declared that a state drug

offense is analogous to a felony punishable under the

Controlled Substances Act “only if it proscribes conduct

punishable as a felony under that federal law.” Id.

Some courts, including our own, have described the

Supreme Court’s approach in Lopez as the “hypothetical

federal felony approach.” See, e.g., Escobar Barraza v.

Mukasey, 519 F.3d 388, 390 (7th Cir. 2008); U.S. v.

Pacheco-Diaz, 513 F.3d 776, 779 (7th Cir. 2008) (“PachecoDiaz II”); see also Rashid v. Mukasey, 531 F.3d 438, 443 (6th

Cir. 2008); In re Carchuri-Rosendo, 24 I&N Dec. 382, 396

(BIA 2007) (Pauley, J., concurring). In following the hypothetical federal felony approach, we look to see whether
Nos. 06-3476, 06-3987 & 06-3994 29

a defendant’s conviction would have been a felony if the

defendant had been prosecuted under federal law. Lopez,

127 S. Ct. at 632-33; Gonzales-Gomez v. Achim, 441 F.3d 532,

535 (7th Cir. 2006). Under this approach, the phrase “ ‘any

felony punishable under the CSA’ is read ‘to mean any

conviction punishable as a felony under the CSA.’ ” Rashid,

531 F.3d at 442-43. The Lopez Court did not describe

its methodology as a “hypothetical federal felony approach,” and, in fact, the term “hypothetical” does not

appear anywhere in the majority opinion. That is not to

say that the term “hypothetical federal felony” is inapt.

It simply requires additional parameters lest it grasps

within its reach more than Congress intended. It does

not, for example, allow an immigration court to determine that conduct for which a defendant was never

charged and never convicted would have been a felony if

the government had, hypothetically, prosecuted the

defendant under federal law. See, e.g., Rashid, 531 F.3d at

445 (“We conclude that inclusion of the word ‘hypothetical’

in the ‘hypothetical federal felony’ approach does not

provide the government with free reign to make ex-post

determinations of what federal crimes an individual

could hypothetically have been charged with where, as

here, a prior drug-possession conviction was not at issue

in the prosecution of the subsequent drug-possession

offense.”); In re Carachuri-Rosendo, 24 I&N Dec. at 393

(noting that a pure “hypothetical approach would authorize Immigration Judges to collect a series of disjunctive

facts about the respondent’s criminal history, bundle

them together for the first time in removal proceedings,

and then declare the resulting package to be ‘an offense’

that could have been prosecuted as a Federal felony.”)
30 Nos. 06-3476, 06-3987 & 06-3994

The additional parameters needed to constrain the

hypothetical federal felony come from the categorical

approach which requires that, when determining which

state crimes Congress intended to treat as aggravated

felonies for the purposes of the INA, the court must look

only to the elements of the state offense in question

(and, when necessary to the charging document) to determine whether the offense corresponds to one of the

crimes described as an aggravated felony under the INA.

Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005); see

also Taylor v. United States, 495 U.S. 575, 602 (1990) (the

categorical approach “generally requires the trial court

to look only to the fact of conviction and the statutory

definition of the prior offense.”). The hypothetical federal

felony and the categorical approach are not mutually

exclusive. A court can, and indeed must use the

categorical approach in applying the hypothetical

federal felony. This is precisely the methodology the

Lopez Court required when it announced that, “a state

offense constitutes a felony punishable under the Controlled Substances Act only if it [that is, the state offense]

proscribes conduct punishable as a felony under that

federal law.” Lopez, 127 S. Ct. at 633. In other words, one

looks to the description of the state offense to see

whether the elements enunciated in that offense correspond to a federal felony.

The majority states that a strict categorical approach

does not settle the matter in this case, but application of

Lopez does. Ante at 17. This implies, however, that Lopez

does not require the use of the categorical approach. In

fact, Lopez demands that the categorical approach and
Nos. 06-3476, 06-3987 & 06-3994 31

the hypothetical federal felony be applied together.

Lopez specifically instructs that, when deciding if a state

offense constitutes a felony under the CSA, a tribunal

must look at the conduct proscribed by the state offense.

Lopez, 127 S. Ct. at 633 (emphasis added). Of course, the

conduct proscribed by the state offense may not always

be identical to the defendant’s conduct. There is no

doubt, as the majority points out (ante at 18) that the

state’s decision to classify the offense as a felony or a

misdemeanor is irrelevant and the only definition that

matters is the one the federal government uses to define

the behavior. But this statement skirts the issue. We still

need to identify which behavior we must plug into the

federal classification system. Lopez tells us that it is the

behavior described in the state offense.

This amalgam of the hypothetical federal felony and

categorical approaches means that immigration courts

may not independently assess a defendant’s conduct to

determine whether such conduct would warrant a

federal felony conviction, if, for example, the government

had sufficient evidence to charge the defendant, if the

defendant had not pled to lesser charges, if the critical

evidence had not been suppressed, if a jury had found

sufficient evidence of guilt, if all appeals had been unsuccessful, or if the government had opted to charge

the defendant as a recidivist. Lopez constrains our hypothetical “what-ifing” to consideration of the conduct

proscribed in the offense of conviction, and does not

allow us to consider whether the defendant engaged in

some other conduct that would have been a federal

felony if a long chain of possibilities (or even one) had
32 Nos. 06-3476, 06-3987 & 06-3994

come to fruition. Due to prosecutorial decision making,

limited resources, legal strategy, and other factors, state

prosecutors often charge and convict defendants of offenses that significantly under-represent the actual

conduct of the defendant. It is true that in this way, state

prosecutorial decisions will affect the Department of

Homeland Security’s (DHS’s) ability to remove an alien

pursuant to federal immigration law. DHS, however,

cannot skip the inconvenient and cumbersome hurdles

imposed by criminal procedure and base decisions on

convictions a state court hypothetically could have secured. When we begin to compare “an offense a defendant could have been charged with in state court with

an offense the defendant could have been charged with

in federal court,” we have reached “one too many levels

of hypothetical application.” Pacheco-Diaz II, 513 F.3d at

781. As the Third Circuit concluded when considering

the identical issue, “[o]ne cannot suffer the disabilities

associated with having been convicted of an aggravated felony unless one has been convicted of a felony.”

Steele v. Blackman, 236 F.3d 130, 136 (3d Cir. 2001) (emphasis in original). Without the normal protections in place

when criminal history is vetted before a court, we risk

relying on constitutionally infirm convictions and

elevating minor infractions into felonies in a manner

unintended by Congress.

In fact, Congress recognized the inherent danger of

relying on prior convictions to turn a simple misdemeanor drug offense into a recidivist felony when it

drafted § 844 and § 851 of the criminal code. Under

21 U.S.C. § 851(a)(1), before the government may rely
Nos. 06-3476, 06-3987 & 06-3994 33

A person may not challenge the validity of a prior conviction 1

that is more than five years old. 21 U.S.C. § 851(e). One of the

three petitioners here, Jiminez-Mateo, would have been barred

from challenging the validity of his first possession offense.

Presumably, however, he was still permitted to deny an allegation of the information of a prior conviction as indicated

in § 851 (c)(1). Furthermore, the notice requirements of 21

U.S.C. § 851(a) would still have applied. 

upon a prior conviction for sentencing purposes, it must

file with the court, and serve on defense counsel an

information revealing the previous convictions upon

which it will rely. Id. The court must then give the defendant an opportunity to challenge the prior conviction

and, if the defendant denies the allegations or validity of

the prior conviction, hold a hearing in which the government must prove the validity or existence of the

prior conviction beyond a reasonable doubt. Id. at (c)(1).1

The requirements of § 851(a) are not pro forma. If the

government fails to file such notice, the court cannot

use the prior conviction to enhance the penalty. United

States v. LaBonte, 520 U.S. 751, 754 n.1 (1997); United States

v. Arreola-Castillo, No. 06-4055, 2008 WL 3892142 at *3 (7th

Cir. August 25, 2008). The majority has gone to great

lengths to highlight that the only thing that counts under

Lopez is the federal government’s classification system

(ante at 18), but it is the federal classification system that

makes it clear that there can be no felony conviction

under § 844(a) for a second or more drug offense unless

the government gives the court and the defendant notice

that it intends to use the prior convictions. 21 U.S.C. § 851.
34 Nos. 06-3476, 06-3987 & 06-3994

Framed another way, the majority’s certain conclusion

that the petitioners would have been subject to an increased penalty had they been charged in federal court is

incorrect. The majority states:

While the state of Illinois conceivably could have

enhanced the petitioners’ state sentences under the

Illinois provision similar to § 844(a), that is beside

the point. The question is whether the petitioners

would have been subject to the increased penalty for

having committed a prior drug offense had they been

charged in federal court. As none of the petitioners

disputes the existence of their prior convictions, the

answer to that inquiry here must be “yes”; the petitioners’ most recent state possession offenses are therefore properly classified as aggravated felonies.

Ante at 18 (emphasis in original) (footnote omitted). The

petitioners, however, would have been subject to the

increased penalty only if they had been charged as repeat

offenders under 21 U.S.C. § 851. And that is a big “if.”

After all, they were not charged as repeat offenders in state

court. This is the “one too many levels of hypothetical”

with which we were concerned in Pacheco-Diaz. See PachecoDiaz II, 513 F.3d at 781.

The requirements of § 851(a) are not without good

reason. As the Sixth Circuit noted, “many misdemeanor

or lesser convictions are processed under questionable

circumstances and may be found invalid if challenged.”

Rashid, 531 F.3d at 447 (citing the brief amici curiae of the

Criminal Defense Attorneys of Michigan and the New

York State Defenders Association). The Third Circuit

too commented on the danger of relying on a previous
Nos. 06-3476, 06-3987 & 06-3994 35

misdemeanor where its existence and constitutional

integrity was never litigated as part of any criminal

proceeding. Steele, 236 F.3d at 137-38. The Board of Immigration Appeals, after weighing these concerns, concluded

that unless constrained by circuit law otherwise, “an

alien’s State conviction for simple possession will not be

considered an aggravated felony conviction on the basis

of recidivism unless the alien’s status as a recidivist drug

offender was either admitted by the alien or determined

by a judge or jury in connection with a prosecution for

that simple possession offense.” In re Carachuri-Rosendo, 24

I&N Dec. at 394. In so concluding, the Board noted that its

approach differed from this Circuit’s approach in PachecoDiaz. Although constrained by the binding precedent of

Pacheco-Diaz in this Circuit, the Board has stated that it

will decline to follow the Pacheco-Diaz approach elsewhere. It is now my position that the Board and our

sister courts in the First, Third, and Sixth Circuits have the

better view. See, e.g., Rashid v. Mukasey, 531 F.3d 438 (6th

Cir. 2008); Berhe v. Gonzlaez, 464 F.3d 74 (1st Cir. 2006);

Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). In short, a

conviction for simple misdemeanor possession in which

a court has never adjudicated or considered the fact or

validity of a prior conviction should not be equated with

a recidivist possession conviction under 21 U.S.C. § 844(a).

One more scenario adds weight to this conclusion. If the

majority’s contrary theory is correct, then a federal defendant who has been convicted of two separate federal

misdemeanor possession crimes could be deemed an

aggravated felon despite the government’s failure to

comply with the absolute requirements of 21 U.S.C. § 851.
36 Nos. 06-3476, 06-3987 & 06-3994

But we know in no uncertain terms that the government may not engage the recidivist portion of § 851

without meeting all of the requirements of that section.

LaBonte, 520 U.S. at 754 n.1. The majority dismisses this

paradox by stating that is skeptical that such a result

would follow. State violations, it argues, must be compared with and then molded into the analogous federal

offense of 21 U.S.C. § 844(a). Federal violations under

§ 844(a), the majority argues on the other hand, need not

be compared to anything, and so they become recidivist

crimes only if the government follows the dictates of § 851.

This rationale is confusing. If the federal government

deems it necessary to give a federal defendant the

protections of § 851 (notice, opportunity to respond etc.)

before subjecting that defendant to felony charges as a

repeat offender under § 844(a), why would state recidivists—whose crimes are being analogized into the rubric of

§ 844(a)—not require the same protections? Surely Congress does not have more confidence in the validity of

convictions from the thousands of (ofttimes minuscule,

isolated, and under-resourced) state courts around the

country than it has in its own federal courts. In any event,

it seems clear that Congress intended for recidivists to be

charged as recidivists before a court may pile on to the

punishment.

This is not to say that a state recidivist law must mirror

21 U.S.C. § 851 precisely before a state recidivist can be

labeled a felon pursuant to 21 U.S.C. § 844(a). One might

imagine that as long as a defendant has some form of

notice of and opportunity to challenge the prior conviction, then the state offense would qualify as a conviction
Nos. 06-3476, 06-3987 & 06-3994 37

Illinois does have a law that provides for a sentencing 2

enhancement for recidivist possession (720 ILCS 570/408(a)) and

requires that the state give the defendant notice of the state’s

intention to seek the enhancement. 725 ILCS 5/111-3(c). 

punishable under the CSA and thus meet the standard

declared in Lopez. The Sixth Circuit, in considering 2

this question, concluded that “[p]rovided that an individual has been convicted under a state’s recidivism

statute and that the elements of that offense include a

prior drug-possession conviction that has become final

at the time of the commission of the second offense, then

that individual, under the categorical approach, has

committed an aggravated felony under § 844(a).” Rashid,

531 F.3d at 448 (emphasis in original); accord In re Carachuri Rosendo, 24 I&N Dec. at 391 (“State recidivism

prosecutions must correspond to the CSA’s treatment of

recidivism by providing the defendant with notice and an

opportunity to be heard on whether recidivist punishment

is proper.”). At this juncture we need not determine how

closely the state notice and opportunities to challenge must

resemble those in the federal rule. In each of the cases

presented here, the petitioners were convicted of simple

misdemeanors with no mention of any prior conviction.

The conduct prohibited by the offenses for which they

were convicted was simple possession—a crime not

punishable as a felony under the CSA.

The majority hangs its hat on our recent decision in

United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007)

(Pacheco-Diaz I), a sentencing enhancement case, wherein

we concluded that the defendant’s second misdemeanor
38 Nos. 06-3476, 06-3987 & 06-3994

The majority also makes much of the fact that recidivism is a

3

penalty provision and not an element of the offense of conviction. Ante at 17 (citing Almendarez-Torres, 523 U.S. 224, 244

(1998)). Although still reigning law, the viability of this notion

is much in doubt. In U.S. v. Apprendi, 530 U.S. 466, 520, Justice

Thomas, in concurrence, admitted siding with the erring

position in Almendarez-Torres and concluded that the fact of a

prior conviction is indeed an element of a recidivism statute—a

position which allies him with the four dissenters in AlmendarezTorres. Id. at 520-21 (Thomas, J., concurring). Thomas’ change of

mind now means that at least five current members of the

Supreme Court support the position that the fact of a prior

conviction is indeed an element of a recidivism crime. In any

(continued...)

conviction for possession of marijuana would be treated

as a federal felony under the recidivist provision of 21

U.S.C. § 844(a). Id. at 550. We issued the decision in

Pacheco-Diaz after considering the Supreme Court’s decision in Lopez, but without the benefit of briefing on the

impact of that recently released opinion, and before the

Board issued its decision in Carachuri-Rosendo. Although

I authored the panel decision in Pacheco-Diaz, as I noted

in my dissent to the denial of rehearing, and above, I now

believe that case was incorrectly decided. See PachecoDiaz II, 513 F.3d at 779. Our opinion in Pacheco-Diaz I

looked at Pacheco-Diaz’s conduct rather than, as Lopez

instructs, the conduct proscribed by the offense for which

Mr. Pacheco-Diaz was convicted, and in that way did not

give the categorical approach and the protective mechanisms of 21 U.S.C. § 851 their due. See Pacheco-Diaz II, 513

F.3d at 779-781 (7th Cir. 2008).3
Nos. 06-3476, 06-3987 & 06-3994 39

(...continued) 3

event, this distinction does not get us around the Supreme

Court’s command in Lopez that we look to the conduct proscribed in the state offense of conviction. In this case that

statute described conduct—simple possession—that would

not have qualified as an aggravated felony under federal law.

Requiring immigration courts to look at the conduct

proscribed by the offense of conviction does not mean

that those courts and the reviewing federal courts are

beholden to the manner in which a state court has

labeled a crime. Federal law must and does provide the

classification for federal felonies. The only question is:

“what is the federal law classifying?” Under a pure hypothetical federal felony approach, federal law looks at the

defendant’s conduct and classifies that conduct under

the federal construct regardless of the actual offense of

conviction. Under the hypothetical federal felony

approach modified by the categorical approach, federal

law classifies the conduct for which the defendant was

convicted, or, as Lopez says, the conduct proscribed by

the state statute. Lopez, 127 S. Ct. at 633.

In sum, by the command of Lopez and the categorical

approach to federal/state offense comparison, we are

obligated to look only at the offense of conviction and

the conduct described therein. True, as the majority points

out, there are limited situations in which we may peek

behind the face of the conviction, to the charging documents, Gattem, 412 F.3d 758, 765 (2005), but the charging

documents in these cases would have been no help. In

each case in this appeal the state convicted the defendant
40 Nos. 06-3476, 06-3987 & 06-3994

of a simple misdemeanor without mention of any

previous misdemeanor convictions. The state prosecutors

opted not to charge these defendants as recidivist drug

crime offenders and we cannot re-write history to make

it so. The offenses for which each of these petitioners

were convicted do not proscribe conduct that would be a

felony under the CSA. Consequently, I would hold that

none of their convictions constitutes an aggravated

felony under § 1101(a)(43)(B) of the INA. I respectfully

dissent.

9-15-08