Cite as 25 I&N Dec. 850 (BIA 2012) Interim Decision #3760
(...continued)
an affirmative defense is not an offense “element”), cert. denied, 132 S. Ct. 1727 (2012).
The requirements of 21 U.S.C. §851 are not “elements” of an offense because they need not
be proven to a jury beyond a reasonable doubt. Accord Jones v. United States, 526 U.S.
227, 232 (1999) (holding that offense “elements must be charged in the indictment,
submitted to a jury, and proven by the Government beyond a reasonable doubt”).
13
The phrase “chargeable under State law” also appears in the RICO statute, 18 U.S.C.
§ 1961(1)(A), which defines “racketeering activity” as “any act or threat involving murder,
kidnapping,[etc.], whichis chargeableunder State law and punishable byimprisonment for
more than one year.” (Emphasis added.) Courts have interpreted the term “chargeable”
very broadly in the context of that statute, holding that it merely requires the defendant’s
conduct to have been of a type that the State deems criminal in a generic sense, even if the
State would not have permitted the conduct to be prosecuted in a particular case because
of constitutional, procedural, or evidentiary restrictions. E.g., United States v. Coonan,
938 F.2d 1553, 1563-64 (2d Cir. 1991); United States v. Paone, 782 F.2d 386, 393-94 (2d
Cir. 1986).
14
Similarly, a conviction for a local ordinance violation is counted as a valid prior
conviction under the criminal history provisions of the Federal Sentencing Guidelines if the
underlying offense was also a violation of State criminal law. See U.S.S.G. § 4A1.2(c)(2);
see also United States v. Gray, 126 F.3d 1109, 1110-11 (8th Cir. 1997); United States
v. Hooks, 65 F.3d 850, 855 (10th Cir. 1995).
864
The respondent’s main argument in opposition to the aggravated felony
charge is similar to that which he advanced in support of his challenge to the
section 237(a)(2)(B)(i) charge. Specifically,the respondent maintainsthat his
Wichitaconvictioncouldnotbeavalid predicatefor arecidivismcharge under
the CSA because 21 U.S.C. § 844(a) requires that a prior conviction be for
an offense “chargeable under the law of any State.” According to the
respondent, his Wichita offense does not fit that description because it was
prosecuted as a municipal ordinance violation rather than as a violation
of State law. We do not agree.
Under the plain language of 21 U.S.C. § 844(a), a conviction is a valid
predicate for a recidivist enhancement if it was for an otherwise qualifying
crime that was “chargeable under the law of any State.” We are not aware
of any Federal court decision interpreting that phrase as it appears
in § 844(a).
13
In common legal parlance, however, the term “chargeable”
simply means “capable or liable of being charged as a criminal offense.”
Black’s Law Dictionary249 (8th ed. 2004). Thus, the relevant question under
21 U.S.C. § 844(a) is not whether the respondent was convicted under
aparticularState law,butratherwhetherhisoffenseof convictionwas capable
of being charged under such a law.
14
In the respondent’s case, the answer
to that question is clearly yes.
UnderKansaslaw,municipalandStatecourtshave concurrentjurisdiction
over offenses that violate both a city ordinance and a parallel State statute,