Parada-Molina

MEMORANDUM

Francisco Antonio Parada-Molina plead guilty to illegal reentry in violation of 8 U.S.C. § 1326 (a). The district court imposed a sixteen point offense level enhancement pursuant to U.S.S.G. § 2L1.2 (commission of an aggravated felony prior to reentry). Parada-Molina appeals the sentencing enhancement because he contends that his prior offense, possession of narcotic drugs, was not an aggravated felony. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Parada-Molina’s prior offense constitutes an aggravated felony if Arizona law denominates the offense a felony. See *738 United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir.2000). Parada-Molina concedes that in 1994, when he was arrested for possession of narcotic drugs under A.R.S. § 13-3408, the crime was a felony-under Arizona law.

Parada-Molina asserts, however, that this crime is no longer a felony under Arizona law due to the passage of Proposition 200 in 1996, later codified as A.R.S. § 13-901.01. Proposition 200 prohibits judges from imposing any incarceration on certain drug possession offenders. Parada-Molina argues that since an offender of his same crime can no longer be sentenced…

Circuit Judge, dissenting.

I would hold that the Arizona voter initiative repealed by implication A.R.S. § 13-3408, to the extent that a first-time drug possession offense is no longer a felony under Arizona law. Moreover, I believe that in order to impose a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2, the prior offense must have been an aggravated felony both at the time the act was committed and at the time of the illegal reentry. United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir.1996), holds only we do not consider a prior conviction an “aggravated felony” if it was not defined as an aggravated felony at the time the act was committed. Gomez-Rodriguez does not address whether an offense that was defined as a felony at the time of conviction, but not at the time of the illegal reentry, may be treated as a felony under § 2L1.2. Accordingly, I would hold that the district court erred in applying the sentence enhancement for ParadaMolina’s prior drug possession conviction.

concurring.

I concur in the result reached in the memorandum affirming the district court’s imposition of a sentence enhancement pursuant to U.S.S.G. § 2L1.2 (commission of an aggravated felony prior to reentry). However, I believe that our analysis should focus only upon whether the defendant was convicted of an “aggravated felony” prior to his deportation. This defendant was. Our court has previously rejected the argument that we should look to the definition of “aggravated felony” as it existed on the date of reentry. United States v. Gomez-Rodriguez, 96 F.3d 1262, 1265 (9th Cir.1996) (when conviction for assault with a deadly weapon was not defined as an “aggravated felony” at the time of conviction, this conviction does not constitute a necessary element of a crime under 8 U.S.C. § 1326 (b)(2)). Any change in Arizona law after Parada-Molina’s felony conviction is of no consequence.