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Third Circuit Rules Unlicensed Distribution of Prescription Drugs Not an “Aggravated Felony”

Posted On: September 17, 2012 by Marc Neff

In Borrome v. Attorney General, 2012 U.S. App. LEXIS 14676, Petitioner Borrome was an immigrant from the Dominican Republic, who, since August 1996 had been a lawful permanent resident of the United States. Following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin, an immigration judge (IJ) ordered Borrome removed. On the Government’s motion, the Board of Immigration Appeals (BIA) summarily affirmed the IJ’s decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Borrome petitioned for review.

The Circuit court applied the categorical approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs was not an “aggravated felony.” The “case hinges,” the Court explained, “on the relationship between prescription ‘drugs’ and ‘controlled substances.’” Id. The statutory provisions criminalizing the unlicensed wholesale distribution of prescription drugs — 21 U.S.C. §§ 331(g) and 353(e)(2)(A) — do not define a form of “illicit trafficking in a controlled substance” because “while some prescription drugs contain chemicals that are also regulated as ‘controlled substances’ under the [Controlled Substances Act,. 21 U.S.C. § 801 et seq.], many do not.” Id. at 18. By the same token, the prior conviction was not for a “drug trafficking crime” under § 924(c)(2) because § 924(c)(2) defines “drug trafficking crime” to mean any felony punishable under the federal controlled substance laws.

In the course of its analysis, the Court stated that it “is well established that the aggravated felony enumerating statute at issue here, [8 U.S.C. § 1101(a)(43)(B)], does not permit departure from the categorical approach nor does it invite inquiry into the underlying facts of conviction.” Accordingly, the defendant’s guilty plea under an indictment alleging the wholesale distribution of Oxycontin — a prescription drug containing the controlled substance oxycodone — did not turn the conviction into an “aggravated felony.”

All persons charged with crimes are entitled to the protections afforded by the United States Constitution. An experienced criminal defense attorney helps to ensure that a defendant’s rights are protected before, during and after a trial. If you have been charged with or convicted of a criminal offense, you should consult with a criminal defense attorney immediately. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or via email at

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Posted in: Misdemeanor / Felony Crimes