State Felon-In-Possession Offense is Aggravated Felony, Despite Lack of Interstate Commerce Element

Nieto Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009) (King, Davis, Haynes)

In short:

Nieto argues that the BIA erred in finding that his firearms conviction under [Texas Penal Code] § 46.04(a) was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(E)(ii), which defines “aggravated felony” as including an offense “described in” 18 U.S.C. § 922(g)(1). Nieto argues that his firearms conviction was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a) does not contain an interstate commerce element. We hold that state felon-in-possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1).

In long:

Section 1101(a)(43)’s “penultimate sentence” supports the BIA’s interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are not necessary for an offense to be an “aggravated felony” as “described in” § 922(g)(1). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law.” Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government. Because § 922(g)(1)’s interstate commerce element is simply an element that ensures federal jurisdiction, finding that such an element is necessary for a state offense to be one that is “described in” § 922(g)(1) would undermine Congress’s evident intent that jurisdiction be disregarded in applying this definition of “aggravated felony.”

The text of § 1101(a)(43) also shows that Congress intended more than a negligible number of state firearm offenses to be encompassed within § 1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and “interpreting the jurisdictional element of § 922(g) as essential for a state offense to qualify as an aggravated felony would” undermine that intent. Section 1101(a)(43)’s “penultimate sentence” shows that “Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies,” and the fact that Congress “used the looser standard ‘described in’ for [§ 1101(a)(43)(E)], rather than the more precise phrase ‘defined in’ used elsewhere in [§1101(a)(43), demonstrates] that Congress ‘wanted more than a negligible number of state [firearms] offenses to count as aggravated felonies.’” Interpreting § 922(g)(1)’s interstate commerce element “as essential for a state offense to qualify as an aggravated felony” would violate Congress’s intent to include more than a “negligible number” of state offenses under § 1101(a)(43)(E)(ii), “because state firearms[statutes] would ‘rarely, if ever’ [contain an interstate commerce element and convictions under such statutes would rarely, if ever] specify whether the commerce element was met.”

(cites omitted). Because the elements of the Texas FIP offense are identical to the federal FIP offense, sans interstate commerce, the Texas offense is an aggravated felony.

Indicidentally, in addition to relying on cases from other circuits, the opinion adopts the reasoning of an earlier unpublished Fifth Circuit decision that confronted the issue in the criminal context: United States v. Garza, 250 F. App'x 67, No. 06-20922 (5th Cir. 2007) (per curiam).