The Ninth Circuit has determined that a Washington drug trafficking conviction is not an aggravated felony.

The court observed that "the implicit nature of aiding and abetting liability in every criminal charge is well-settled."  Further, federal law requires a mens rea of specific intent for conviction for aiding and abetting, whereas Washington requires merely knowledge.  "Therefore, the Washington drug trafficking law on its face appears to have a more inclusive mens rea requirement for accomplice liability than its federal analogue."  Because a jury need not distinguish between principals and accomplices, the drug trafficking statute is not divisible so far as the distinction between those roles is concerned, so the modified categorical approach may not be applied.

The court noted that "the government makes a pragmatic argument that, under Valdivia-Flores’s proposed application of the categorical approach, 'no Washington state conviction can serve as an aggravated felony at all because of [the] accomplice liability statute' and that such a result 'cannot have been Congress’s intent.' The government here merely joins a chorus of those who have raised concerns about [the] line of decisions' applying the categorical approach, '[b]ut whether for good or for ill, the elements-based approach remains the law.'”  Thus, it would seem that the Ninth Circuit may have implicitly conceded that no Washington state convictions can qualify as an aggravated felonies.  

The full text of US v. Valdivia-Flores can be found here: