Second or Subsequent Simple Possession Not Aggravated Felony Unless Record of Conviction Shows It Was Based on Fact of Prior Drug Conviction

Carachuri-Rosendo v. Holder, No. 09-60 (U.S. June 14, 2010)

As with so many other common issues in our neck of the woods, you're no doubt familiar with this one if you regularly handle illegal reentry cases. Today the Supreme Court held, reversing a decision from the Fifth Circuit, "that second or subsequent simple possession offenses are not aggravated felonies under [8 U.S.C.] § 1101(a)(43) when . . . the state conviction is not based on the fact of a prior conviction."

How did we get here? You'll recall that the Supreme Court held a few years ago, in Lopez v. Gonzalez, that a state drug offense is not an aggravated felony unless it proscribes conduct that is punishable as a felony under the federal Controlled Substances Act. Simple possession is generally only a misdemeanor under 21 U.S.C. § 844(a), so it's not an aggravated felony. But § 844(a) also provides that a second or subsequent conviction is punishable as a felony, provided that the procedural requirements of § 851 are satisfied. So is a second or subsequent state simple possession conviction an aggravated felony? Some dicta in a Lopez footnote seemed to say so, and a circuit split propagated.

The Fifth Circuit below answered "yes," applying what it understood to be the "hypothetical" approach of Lopez.

Under this approach, as the Court of Appeals understood it,courts "g[o] beyond the state statute’s elements to look at the hypothetical conduct a state statute proscribes." Accordingly, any "conduct" that "hypothetically" "could have been punished as a felony" "had [it] been prosecuted in federal court" is an "aggravated felony" for federal immigration law purposes. In applying this hypothetical approach, the Court of Appeals did not discuss the §851 procedural requirements. Instead, it concluded that because Carachuri-Rosendo’s "conduct" could have been prosecuted as simple possession with a recidivist enhancement under state law—even though it was not—it could have also been punished as a felony under federal law. Thus, in the Court of Appeals’ view, his conviction for simple possession under state law, without a recidivist enhancement, was an "aggravated felony" for immigration law purposes.

So why was that wrong? It "ignores the text of the INA, which limits the Attorney General’s cancellation power only when, inter alia, a noncitizen 'has . . . been convicted of a[n] aggravated felony.' 8 U. S. C. §1229b(a)(3) (emphasis added). The text thus indicates that we are to look to the conviction itself as our starting place, not to what might have or could have been charged." And that means the inquiry is limited to the record of conviction; a court "cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law."

But what about that "hypothetical" approach?

We never used the term "hypothetical" to describe our analysis in [Lopez]. We did look to the "proscribe[d] conduct" of a state offense to determine whether it is "punishable as a felony under that federal law." But the "hypothetical approach" employed by the Court of Appeals introduces a level of conjecture at the outset of this inquiry that has no basis in Lopez. It ignores both the conviction (the relevant statutory hook), and the conduct actually punished by the state offense. Instead, it focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment. As the Sixth Circuit has explained, this approach is really a "‘hypothetical to a hypothetical.’" Not only does the Government wish us to consider a fictional federal felony—whether the crime for which Carachuri-Rosendo was actually convicted would be a felony under the Controlled Substances Act—but the Government also wants us to consider facts not at issue in the crime of conviction (i.e., the existence of a prior conviction) to determine whether Carachuri-Rosendo could have been charged with a federal felony. This methodology is far removed from the more focused, categorical inquiry employed in Lopez.

There's other reasons for the Court's holding, as well:

• The "procedural requirements [of § 851] have great practical significance with respect to the conviction itself and are integral to the structure and design of our drug laws." They allow prosecutors a measure of discretion, and many states have similar enhancement provisions that can only be invoked at the prosecutor's insistence. "Were we to permit a federal immigration judge to apply his own recidivist enhancement after the fact so as to make the noncitizen's offense 'punishable' as a felony for immigration law purposes, we would denigrate the independent judgment of state prosecutors to execute the laws of those sovereigns."
• "[I]t seems clear that the Government's argument is inconsistent with common practice in the federal courts. It is quite unlikely that the 'conduct' that gave rise to Carachuri-Rosendo's conviction would have been punished as a felony in federal court."
• Lenity: "[A]mbiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen's favor. And here the critical language appears in a criminal statute."

But what about that Lopez footnote?

Our decision today is not in conflict with this footnote; it is still true that recidivist simple possession offenses charged and prosecuted as such "clearly fall" within the definition of an aggravated felony. What we had no occasion to decide in Lopez, and what we now address, is what it means to be convicted of an aggravated felony. Lopez teaches us that it is necessary that the conduct punished under state law correspond to a felony punishable under the Controlled Substances Act to be an aggravated felony under §1101(a)(43)(B). But it does not instruct as to whether the mere possibility that conduct could be—but is not—charged as an offense punishable as a felony under federal law is sufficient.

While the opinion is pretty clear—to be an aggravated felony, the alien must have been convicted of recidivist possession, as shown by the record of conviction—it did leave open a significant question:

Indisputably, Carachuri-Rosendo’s record of conviction contains no finding of the fact of his prior drug offense. Carachuri-Rosendo argues that even such a finding would be insufficient, and that a prosecutorial charge of recidivism and an opportunity to defend against that charge also would be required before he could be deemed "convicted" of a felony punishable under the Controlled Substances Act. In the absence of any finding of recidivism, we need not, and do not, decide whether these additional procedures would be necessary.

So that's still out there.

One last point: you may have noticed that Carachuri-Rosendo was an immigration case. But it should apply equally to criminal cases. The Supreme Court has noted that terms that apply in both immigration and criminal cases should be interpreted the same way in both contexts. And the Fifth Circuit readily agreed that Lopez—also an immigration case—applied to the illegal reentry statute and sentencing guideline. Carachuri-Rosendo should be no different.