is a matter of law to be decided by the Court. See Jenkins v. Immigration & Naturalization Serv., 32 F.3d 11, 13 (2d Cir.1994) (court of appeals made determination of whether petitioner was an “aggravated felon”). Mejia-Ruiz admits that he was convicted in 1989 in a New York State court for “the criminal sale of a controlled substance, cocaine, in the fifth degree.” Affirmation Of Michael P. DiRaimondo (Mejia-Ruiz’s counsel) ¶ 4. Such a conviction is a felony under New York State law. In addition, the conviction could have been punishable under section 841(a) of the Controlled Substances Act, 21 U.S.C. § 841(a), if Mejia-Ruiz had been charged federally. As a result, the conviction makes Mejia-Ruiz an “aggravated felon” as defined in 8 U.S.C. § 1101(a)(43). See Jenkins, 32 F.3d at 14 (<HOLDING>). A question arises, however, regarding the
holding that a felony conviction in new york state court for possession of cocaine constituted an aggravated felony where the conviction would have also been punishable under the controlled substance act even though the crime would have only constituted a misdemeanor under federal law holding that drug felony under state law can constitute an aggravated felony for federal sentencing guidelines purposes even if the same conduct would not constitute a felony under federal law holding that employees conviction for possession of a controlled substance constituted gross misconduct holding that conduct designated as a felony under state law but as only a misdemeanor under the controlled substances act does not qualify as an aggravated felony holding that a prior nonarizona conviction to be used as a prior felony conviction under the statute must both be for an offense that would constitute a felony in arizona and be classified as a felony in the other jurisdiction