Lopez v. Gonzales: Not Just For Immigration Cases

There's been some discussion at a couple of our sister blogs about the applicability of Lopez v. Gonzales to criminal cases. "Why is this even a question," you ask? Well, remember that the Supreme Court granted cert in two cases presenting the felony-simple-possession-as-aggravated-felolny issue: Lopez v. Gonzales was an immigration case, and Toledo-Flores v. United States was a criminal case involving an appeal from the sentenced imposed for an illegal reentry conviction. As you know by now, the Court only decided the issue in Lopez; it dismissed the writ of certiorari as improvidently granted in Toledo-Flores.

So what effect, if any, does the DIG in Toledo-Flores have on the applicability of Lopez to the aggravated felony sentence enhancements found in 8 U.S.C. § 1326(b)(2) and U.S.S.G. §2L1.2(b)(1)(C)? None at all. Flores applies with just as much force in criminal cases as it does in immigration cases. Here's why:

First, there's nothing in the Lopez decision that suggests that its holding is limited to the immigration context. In fact, the opposite is true. Lopez twice refers to §2L1.2 when discussing the significance and effect of the aggravated felony determination. First here:

An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. [There are immigration consequences.] And under the sentencing law, the Federal Guidelines attach special significance to the “aggravated felony” designation: a conviction of unlawfully entering or remaining in theUnited States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for “any other felony.” United States Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition ofaggravated felony).

Maj. op. at 2. And then here,

Finally, the Government's reading would render the law of alien removal . . ., and the law of sentencing for illegal reentry into the country, see USSG §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose.

Maj. op. at 10 (emphasis added). Moreover, when the Court explained that it "granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA," the Court cited both criminal and immigration cases. Id. at 3 & n.2. These passages clearly show that the Court understands that its decision will apply to both criminal and immigration cases.

Second, the Court has recently noted the rule of construction that statutes which have "both criminal and noncriminal applications" must be interpreted consistently in both contexts. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8. (2004) (The famous footnote eight?) Leocal, like Flores, was an immigration case and also involved the interpretation of a paragraph in the INA's aggravated felony definition that cross-references a criminal statute.

Third, a DIG, like a cert denial, is not a decision on the merits (at least absent any explanation of the reasons for the dismissal). Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 411 (Burger, J., dissenting). It would therefore be a mistake to read the DIG in Toledo-Flores, for which the Court gave no explanation, as an implicit repudiation of the Lopez holding in the context of criminal cases.

Fourth, Lopez's interpretation of § 1101(a)(43)(B) applies to illegal reentry cases simply as a matter of stautory construction. Guideline §2L1.2(b)(1)(C) calls for an 8-level enhancement if a defendant was deported after having been convicted of an aggravated felony. Application Note 3 to §2L1.2 explains that "aggravated felony," for purposes of (b)(1)(C), "has the meaning given that term in [8 U.S.C. § 1101(a)(43)] . . . ." Just as (b)(1)(C) incoporates § 1101(a)(43) without qualification, it also incorporates Lopez's interpretation of § 1101(a)(43) (and Leocal's, as well).

Fifth, unlike the Second and Ninth Circuits, the Fifth Circuit has held that § 1101(a)(43)(B) must be interpreted the same in both the immigration and criminal contexts. United States v. Hernandez-Avalos, 251 F.3d 505, 510 (5th Cir. 2001); see also Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000) (same with regard to § 1101(a)(43)(N)). Although Hernandez-Avalos is no longer good law with regard to the meaning of § 1101(a)(43)(B), it's recognition of the requirement that the statute must be interpreted the same in criminal and immigration cases still stands (especially in light of Leocal).

So there you have it. These are the arguments you need to make in the unlikely situation that a court expresses skepticism about the applicability of Lopez outside of the immigration context.