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Two categories of firearms offenses are listed as aggravated felonies: illicit trafficking in firearms or destructive devices, under 8 USC 1101(a)(43)(C); and miscellaneous federal firearms offenses, under 8 USC 1101(a)(43)(E).

1. “Trafficking” in Firearms or Destructive Devices191

The firearms trafficking definition of an aggravated felony is limited to the common-sense definition of “trafficking” (i.e., selling, dealing, trading). Federal criminal statutory definitions are incorporated only to define the “firearms,” “destructive devices,” or “explosives” that must be the subject of the trafficking. Sale, possession for sale, and other offenses that constitute

190

There is an exception in the definition of destructive devices for rifles used “solely for sporting, recreational and cultural purposes.” However, there is no such exception in the firearms definition and offenses involving hunting rifles used for one of these purposes do constitute convictions for immigration purposes. See United States v. Meldish, 722 F.2d 26 (2d Cir. 1983), cert. denied, 465 U.S. 1101 (1984).

191

trafficking in firearms are aggravated felonies. Firearms and “destructive devices” are defined in 18 USC § 921(a)(3) for this purpose. Except for “armor piercing ammunition,” this section does not mention any criminal offense involving ammunition.

Illicit trafficking in explosives materials (as defined in 18 USC § 841(c)) also

constitutes an aggravated felony.192 “Explosive materials” mean “explosives, blasting agents, and detonators.”193 “Explosives” mean “any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion.”194

One should note that “[s]mall arms ammunition and components thereof” are not

considered to be explosives except for certain offenses contained in 18 USC § 844(d)-(I) involving intent to kill, injure, or intimidate or actual destruction of property.195

There is no requirement of a sentence of one year or more (or any period) to trigger removal under this provision.

2. Other Firearms Offenses

Certain offenses that do not involve trafficking also are aggravated

felonies under 8 USC 1101(a)(43)(E).196 The provisions listed therein identify numerous federal firearms offenses that are aggravated felonies.197 Additionally, state offenses that are exactly analogous to the federal offenses outlined therein will also constitute aggravated felonies. Most of the federal offenses listed do not

appear to have Washington State analogues, with one notable exception: conviction for unlawful possession of a firearm under RCW 9.41.040(1).198

In order to be an aggravated felony under this provision, the RCW at issue would have to be sufficiently analogous to one of the following felonies referenced by this section:199

192

8 USC § 1101(a)(43)(C); INA § 101(a)(43)(C).

193

18 USC § 841(c).

194

18 USC § 841(d). “The Secretary shall publish and revise at least annually in the Federal Register a list of these and any additional explosives which he determines to be within the coverage of this chapter.” Id.

195

18 USC § 845(a)(4).

196

8 USC § 1101(a)(43)(E); INA § 101(a)(43)(E). Under the IIRIRA 1996 amendment, these offenses are aggravated felonies regardless of the date of conviction in all “actions taken” on or after September 30, 1996. Previously these offenses were aggravated felonies only as to convictions entered on or after October 25, 1994, the date of enactment of the Technical Corrections Act. Immigration and Nationality Technical Corrections Act of Oct. 24, 1994, §222, Pub. L. No. 103-416, 108 Stat. 4310 (1994).

197

For a detailed listing of the federal statutes referenced in 8 USC § 1101(a)(43)(E) see N. Tooby,

Criminal Defense of Immigrants §6.53 (3d ed. 2003).

198

The 9th Circuit has held that unlawful possession of a firearm in the first degree under RCW

9.41.040(1)(a) is an aggravated felony under 8 USC § 1101(a)(43)(E) because it is an offense “described in” a federal firearms offense definition at 18 USC § 922(g)(1). United States v. Mendoza-Reyes, 331 F.3d 1119, (9th Circuit 2003.) See also Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002); U.S. v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001).

199

See United States v. Mendoza-Reyes, 331 F.3d 1119, (9th Cir. 2003) for analysis of what constitutes a sufficiently analogous Washington State statute.

Chapter 7: Firearms and Other Weapons Offenses 77

• 18 U.S.C. 842(h), to receive, possess, transport, ship, conceal, store, barter, sell, dispose of, . . .any stolen explosive materials . . . shipped or transported in, interstate or foreign commerce, either before or after such materials were stolen, knowing or having reasonable cause to believe that the explosive materials were stolen;

• 18 U.S.C. 842(i), possession, or shipping or receiving of explosives in interstate

or foreign commerce by indictee, felon, fugitive, drug addict or abuser, or mental defective or person committed to a mental institution; an alien who is not an LPR or certain other legal immigrant categories; or a person dishonorably discharged or who has renounced US citizenship;

• 18 U.S.C. 844(d), transportation or receipt of explosives in interstate or foreign commerce with intent to injure or intimidate people, or damage property;

• 18 U.S.C. 844(e), communication of threat or false information concerning

attempt to injure, intimidate, or damage property by fire or explosive;

• 18 U.S.C. 844(f), malicious damage by fire or explosive of property of U.S. or organization receiving federal funds;

• 18 U.S.C. 844(g), illegal possession of an explosive in airport or any building

owned or used by the US government;

• 18 U.S.C. 844(h), use of fire or explosive to commit a federal felony; or the

carrying of an explosive during the commission of a federal felony; or

• 18 U.S.C. 844(i), malicious destruction by fire or explosive of property used in or affecting commerce.

Again, most of the Washington firearms statutes appear to not be sufficiently analogous to the federal statutes outlined in this section of the aggravated felony definition (with notable exceptions outlined, infra). However, defense counsel should take care to check it against any of the above referenced statutes in any particular case.

The Ninth Circuit has ruled that where conduct could violate a state statute, yet not violate the federal analogue, a state conviction does not constitute an aggravated felony “described in” the federal statute for federal sentencing purposes. In order for a state offense to be “described in” a federal one, all of the conduct criminalized by the state law must be included within the conduct criminalized by the federal law.200 Thus the court found that a Washington state offense of being a noncitizen in possession of a firearm at RCW 9.41.170 is not an aggravated felony because it

200

United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000)(reversing 16-level increase in offense level for illegal reentry, since state firearms offense was not “described in” federal firearms statute).

was not sufficiently analogous to the federal offense of being a noncitizen unlawfully present in the United States in possession of a firearm, under 18 USC §922(g)(5). However, a state statute need not contain the federal jurisdictional element (e.g., crossing state lines) of an analogous federal statute in order to be “described in” the federal statute. Thus the offense of being in unlawful possession of a firearm in the first degree under RCW 9.41.040(1) is an aggravated felony because it is an offense “described in” a federal firearms offense definition at 18 USC § 922(g)(1), despite the fact that the federal offense requires conduct affecting interstate commerce and the state offense does not. This is the rule both in immigration and federal criminal proceedings within the Ninth Circuit.201

There is no requirement of a one-year sentence to trigger removal as an aggravated felon under this provision.

3. Crimes of Violence202

An offense that involves firearms or weapons can also separately constitute an aggravated felony as a “crime of violence” if the criminal statute requires or involves the use or threat of use of force. The offense would have to meet the federal definition of a crime of violence under 18 USC § 16. Examples of this type of offense would be assault in the second degree under RCW 9A.36.021(1)(c) or robbery in the second degree under RCW 9A.56. In order to be an aggravated felony as a “crime of violence,” the requisite conviction must have had a sentence imposed (regardless of time suspended) of one year or more.

4. Attempt or Conspiracy Convictions203

Attempt or conspiracy to commit any of the firearms or destructive

devices offenses listed in the above provisions of 8 USC 1101(a)(43)(C) or (E), or any offense that is a crime of violence under 8 USC 1101(a)(43)(F), will be an aggravated felony. However, as discussed in detail in Part D,

201

The Board of Immigration Appeals initially held that a California conviction for felon in possession of a firearm could not be an aggravated felony because it lacked the jurisdictional element relating to interstate commerce in Matter of Vasquez-Muniz, 22 I. & N. Dec. 1415 (BIA 2000). Thereafter, the Ninth Circuit held that this offense did qualify as an aggravated felony for sentencing guidelines purposes, rejecting the argument that the state offense lacked the federal jurisdictional element requiring an effect on interstate commerce. See U.S. v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001), The BIA then reversed its earlier decision to be in accord with Castillo-Rivera. Matter of Vasquez-Muniz, 23 I. & N.Dec. 207 (BIA 2002), reversing 22 I. & N.Dec. 1415 (BIA 2000). U.S. v. Mendoza-Reyes, 331 F.3d 1119 (9th Cir. 2003)

(conviction under RCW 9.41.040(1)(a) of possession of a firearm by person convicted of a “serious crime” is an aggravated felony, where all offenses included in definition of serious crime have a potential sentence of more than a year).

202

8 USC § 1101(a)(43)(F); INA § 101(a)(43)(F).

203

Chapter 7: Firearms and Other Weapons Offenses 79 solicitation, rendering criminal assistance and misprision of felony should not be aggravated felonies under these provisions.

C. Additional Safer Pleas & Strategies for Firearms Cases