In Borrome v. Attorney General, No. 11-1975 (July 18, 2012), the Circuit applies the "categorical" approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs is not an "aggravated felony."
The case reaches the Circuit by way of a removal proceeding instituted against a citizen of the Dominican Republic following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin. The term "aggravated felony" is defined by the Immigration and Nationality Act to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Under the categorical approach, "we must look only to the statutory definitions of the prior offenses, and may not consider other evidence concerning the defendant’s prior crimes, including the particular facts underlying a conviction" (alteration and quotation marks omitted).
The "case hinges," the Court explains, "on the relationship between prescription ‘drugs’ and ‘controlled substances.’" The statutory provisions criminalizing the unlicensed wholesale distribution of prescription drugs — 21 U.S.C. §§ 331(g) and 353(e)(2)(A) — do not define a form of "illicit trafficking in a controlled substance" because "while some prescription drugs contain chemicals that are also regulated as ‘controlled substances’ under the [Controlled Substances Act,. 21 U.S.C. § 801 et seq.], many do not." By the same token, the prior conviction was not for a "drug trafficking crime" under § 924(c)(2) because § 924(c)(2) defines "drug trafficking crime" to mean any felony punishable under the federal controlled substance laws.
In the course of its analysis, the Court states that it "is well established that the aggravated felony enumerating statute at issue here, [8 U.S.C. § 1101(a)(43)(B)], does not permit departure from the categorical approach nor does it invite inquiry into the underlying facts of conviction." Accordingly, the defendant’s guilty plea under an indictment alleging the wholesale distribution of Oxycontin — a prescription drug containing the controlled substance oxycodone — did not turn the conviction into an "aggravated felony."