United States v. Antonio Galarza-Bautista

MEMORANDUM

Antonio Galarza-Bautista appeals his conviction under 8 U.S.C. § 1826 . Because any alien who is convicted of an aggravated felony at any time after admission is ineligible for any relief from removal, 8 U.S.C. §§ 1227 (a)(2)(A)(iii), 1228(b)(5), an underlying aggravated felony conviction dooms any claim for relief based on a collateral attack of a predicate l'emoval order in a prosecution for illegal reentry under 8 U.S.C. § 1326 . See, e.g., United States v. Garcia-Martinez, 228 F.3d 956, 963-64 (9th Cir.2000). As relevant here, “aggravated felony” includes “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).

Galarza-Bautista was convicted under North Carolina General Statutes Section 90 — 95(h)(3), which provides that “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine ... shall be guilty of a felony, which felony shall be known as ‘trafficking in cocaine[.]’ ” This statute is overbroad, as it covers simple possession, which is not a drug trafficking offense within the…