UNITED STATES of America, Plaintiff-Appellee, v. Ernesto IBARRA-GALINDO, Defendant-Appellant, 206 F.3d 1337

Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY. O’SCANNLAIN, Circuit Judge: We must decide whether a state felony drug crime, which would not be a felony under federal law, nevertheless may constitute an “aggravated felony” for purposes of enhancing a sentence for illegally reentering the United States. I Ernesto Ibarra-Galindo, a native and citizen of Mexico, appeals the district court’s decision to apply, pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A), a sixteen-level enhancement to his sentence for illegally reentering the United States after having been deported for an aggravated felony. See 8 U.S.C. 1326(a). We review the district court’s

interpretation of the Sentencing Guidelines de novo. See United States v. Bailey, 139 F.3d 667, 667 (9th Cir.1998). Ibarra-Galindo has been deported from the United States four times. Prior to his last deportation in May 1997, he pled guilty to possessing cocaine (approximately 0.4 grams) in violation of Washington State law. He was convicted and imprisoned for two months. Ibarra-Galindo’s conviction was a felony under Washington law, but his offense would have amounted only to a misdemeanor under federal law. See 21 U.S.C. § 844(a).

In June 1998, Ibarra-Galindo was again in jail in Washington State, this time for stealing a car. When the Immigration and Naturalization Service (“INS”) found him there, he was charged with illegally reentering the United States in violation of 8 U.S.C. § 1326(a). He pled guilty to the charge on November 12, 1998, but stipulated as subject to dispute the applicability of the sixteen-level enhancement to his sentence under U.S.S.G. § 2L1.2(b)(l)(A). Although Ibarra-Galindo and the Probation Office expressed their views that U.S.S.G. § 2L1.2(b)(l)(

A) was inapplicable, the district court held that the enhancement applied to Ibarra-Galindo’s sentence and, after adjusting his total offense level down to 11, sentenced him to 18 months in prison (with credit for time served). Ibar-ra-Galindo then filed this appeal, and we now affirm his sentence. II The Sentencing Guidelines’ scheme for calculating the punishment for illegal reentry into the United States borrows

definitions from several statutes. According to U.S.S.G. § 2L1.2, the base offense level for illegal reentry is eight; under subsection 2L1.2(b)(l), that level must be increased by sixteen levels “[i]f the defendant previously was deported after a criminal conviction ... for an aggravated felony.” Application Note 1 appended to § 2L1.2 indicates that “ ‘[aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43).” The government relies here on that definition’s inclusion of “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in

section 924(

c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). According to 18 U.S.C. § 924(c)(2), “‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)-” Finally, under the Controlled Substances Act, a “felony” is “any Federal or State offense classified by applicable Federal or State law as a felony,” 21 U.S.C. § 802(13), and possession of 0.4 grams of cocaine is punishable as a misdemeanor, see id. at § 844(a).

Ibarra-Galindo argues that a state drug crime that would amount merely to a misdemeanor under federal law cannot constitute an “aggravated felony” within this definitional scheme, regardless of whether the crime is defined under state law as a “misdemeanor” or a “felony.” The crux of his position is that such a crime cannot be a “drug trafficking crime” as defined by 18 U.S.C. § 924(c)(2) because it is not punishable under the Controlled Substances Act as a felony.

In short, Ibarra-Galindo contends that, within the phrase “felony punishable under the Controlled Substances Act,” “Controlled Substances Act” modifies the meanings of both the word “felony” and the word “punishable.” We cannot agree. First, that is not how § 924(c)(2) is written. If Congress had intended the meaning advanced by Ibarra-Galindo, it would have most naturally referred to offenses “punishable as felonies under the Controlled Substances Act,” but it did not. It is well established that, when one

interpretation of a statute or regulation obviously could have been conveyed more clearly with different phrasing, the fact that the authors eschewed that phrasing suggests, ceteris paribus, that they in fact intended a different

interpretation. See, e.g., Merchants Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1492 (9th Cir.1995); United States v. Rivera, 996 F.2d 993, 995 (9th Cir.1993). Second, we have noted before that “[sjection 924(c)(2) of Title 18 ... defines ‘drug trafficking crime’ broadly.” United States v. Garcia-Olmedo, 112 F.3d 399, 400 (9th Cir.1997).

Hence, although we have not had occasion to do so when the crime at issue would have amounted to a felony under state but not federal law, we have at least twice before held that the phrase “any felony punishable under the Controlled Substances Act” is to be read as comprising two independent elements: The offense must “(a) [be] punishable under the Controlled Substances Act and (

b) qualify as a felony.” Id.; see also United States v. Zarate-Martinez, 133 F.3d 1194, 1200 (9th Cir.1998). We are bound by precedent to reject, therefore, Ibarra-Galindo’s premise that, for purposes of § 924(c)(2), the term “felony” refers only to offenses criminalized by the Controlled Substances Act as felonies. Moreover, we agree with the six other circuits that have addressed this issue that the term “felony” as used within § 924(c)(2) refers to crimes denominated as felonies under either federal or state law. See United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.1999); United States v.

Hinojosar-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-66 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994). Application Note 1 appended to U.S.S.G. § 2L1.2 supports the conclusion that federal and state felony convictions are to be considered equally relevant. See Stinson v.

United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative.... ”). It indicates that “any federal, state, or local offense punishable by imprisonment for a term exceeding one year” is a felony for the purposes of this section. U.S.S.G. § 2L1.2 n. 1 (1997).

The conclusion is further bolstered by the Controlled Substances Act itself, which stipulates that, for purposes of the Act, “[t]he term 'felony’ means any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13) (emphasis added).

Even if, arguendo, the text of the Guidelines and statutes to which it refers did not compel our conclusion, our construction also appears to advance the policies behind the Sentencing Guidelines. “In measuring the seriousness of a defendant’s criminal record, the Guidelines operate on the foundational premise that a defendant’s history of criminal activity in violation of state law is to be treated on a par with his history of crimes committed in violation of federal law.” Restrepo-Aguilar, 74 F.3d at 365.

Hence, we may infer that the Sentencing Commission intended with U.S.S.G. § 2L1.2 to affix greater weight to the fact that a defendant has violated what the relevant jurisdiction declares to be a “felony” than to the fact that the federal government demarcates felonies and misdemeanors on a different basis than the state does. Our holding that both state and federal felonies amount to a “felony” for purposes of § 924(c)(2) advances this policy. III Ibarra-Galindo argues that we should ignore the plain meaning of the text of 18 U.S.C. § 924(c)(2) and deviate from the unanimous

interpretation of our sister circuits because the Board of Immigration Appeals (“BIA”) has held, for the purposes of defining “aggravated felony” in a wholly different context, that the term “felony” in § 924(c)(2) refers to federal felonies only. See In re L-G- No. [ AXX-XXX-XXX ], 1995 WL 582051 (BIA Sept. 27, 1995).

The BIA’s decision in L-G- addressed the eligibility of aliens for asylum and withholding of deportation under 8 U.S.C. §§ 1158 and 1253(h). “That the BIA was persuaded by some of the policies undergirding deportation and asylum determinations to interpret 'aggravated felony’ as excluding state-classified felonies punishable only as misdemeanors under federal law does not convince us that Congress, in creating the aggravated felony sentence enhancement, or the Sentencing Commission, in implementing it, intended the same result.” Restrepo-Aguilar, 74 F.3d at 366; cf. United States v.

Pornes-Garcia, 171 F.3d 142, 147-48 (2d Cir.1999) (distinguishing the policies underlying that court’s decision to follow L-G- in the context of asylum eligibility from the policies underlying its decision regarding the meaning of “aggravated felony” for purposes of U.S.S.G. § 2L1.2(b)(l)(A)). We decline to heed the discordant pronouncement of the BIA, but rather the unanimous chorus of six circuits whose opinions strike for us a decidedly more euphonious note.

IV We hold that a crime that is punishable under the Controlled Substances Act amounts to an “aggravated felony” for the purposes of applying U.S.S.G. § 2L1.2(b)(l)(

A) so long as it was denominated a “felony” by the jurisdiction in which the perpetrator was convicted. Ibarra-Galindo was convicted in Washington State of a felony under Washington law, and that felony was punishable under the Controlled Substances Act. Ibarra-Galindo therefore committed an “aggravated felony” for the purposes of U.S.S.G. § 2L1.2(b)(l)(A); the district court thus did not err in applying that subsection’s mandatory sixteen-level enhancement to Ibarra-Galindo’s sentence for illegal reentry. AFFIRMED. .

Ibarra-Galindo was convicted of violating R.C.W. 69.50.401(d), the maximum term of incarceration for which is five years. . Ibarra-Galindo contends that we must defer to the BIA's

interpretation of “aggravated felony” in L-G- under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Given, first, that we do not find the text of the statute ambiguous and, second, that the BIA has no special authority to interpret or implement either the Sentencing Guidelines, in which the term "aggravated felony” (whose ultimate meaning we are construing here) appears, or 18 U.S.C. § 924(c)(2), wherein the contested phrase "felony punishable under the Controlled Substances Act” appears, that proposition stretches the Chevron doctrine too far.

See id. at 842-43, 104 S.Ct. 2778 (indicating that "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress” and that deference is owed, where ambiguity appears, only to an agency's

interpretation of the "statute which it administers”). Because the statutory text is unambiguous, we must decline as well the dissent’s invitation to reach a contrary result by resorting to the text of congressional committee reports and the rule of lenity. As to committee reports, it bears emphasis that "this Court steadfastly abides by the principle that 'legislative history-no matter how clear-can’t override statutory text.’ ” American Rivers v. Federal Energy Regulatory Comm’n, 201 F.3d 1186, 1204 (9th Cir.2000) (quoting Hearn v.

Western Conference of Teamsters Pension Trust Fund, 68 F.3d 301, 304 (9th Cir.1995)). As to the rule of lenity, we may not invoke it unless we have concluded "that there is a grievous ambiguity or uncertainty in the statute.” Muscarello v. United States, 524 U.S. 125, 138, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (internal quotations and citations omitted) (emphasis added).

We also reject the argument that we have disregarded the Sentencing Commission’s straightforward observation that the definition of "aggravated felony” in the Guidelines now conforms to the definition of "aggravated felony” in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43). We are, as required, relying on the text of § 1101(a)(43)(

B) to define the term "aggravated felony” for the purposes of applying U.S.S.G. § 2L1.2(b)(1)(A); indeed, we have never even suggested that we would interpret 18 U.S.C. § 924(c)(2) differently in applying the Immigration and Nationality Act than we now interpret it in applying the Sentencing Guidelines. 1. I recognize that the question whether a state conviction is for an "aggravated felony” is to be determined categorically, by the conduct proscribed by the state statute, and not by the actual conduct of the offender. See United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir.1994).

The crime here is simple possession. If that crime is viewed as an aggravated felony, results like the present one will be common.