Georgia Possession With Intent to Distribute Is § 2L1.2 DTO Even Though Not an Aggravated Felony Per Moncrieffe; No Remuneration Required

United States v. Martinez-Lugo, No. 13-40924 (5th Cir. Mar. 27, 2015) (Davis, Dennis, Costa) (per curiam)

The Fifth Circuit giveth and then taketh away.  For 3 months, giving away drugs was not a § 2L1.2 drug trafficking offense (DTO) thanks to the now superseded United States v. Martinez-Lugo, 773 F.3d 678 (5th Cir. Dec. 11, 2014) (Davis, Dennis, Costa).  Last week, the panel sua sponte withdrew its prior opinion and substituted an opinion that finds a conviction for Georgia conviction for possession with intent to distribute (PWID) marijuana is a § 2L1.2 DTO even though the Supreme Court held it was not an aggravated felony in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Lack of remuneration does not prevent Georgia PWID from being a § 2L1.2 DTO. 

In the withdrawn opinion, the majority focused on the common sense definition of “drug trafficking offense.”  The Moncrieffe court reiterated the Supreme Court’s previous recognition that “the everyday understanding of ‘trafficking’ . . . ordinarily means some sort of commercial dealing.”  Since the Georgia PWID statute does not require remuneration, the Martinez-Lugo majority in the withdrawn opinion found that it was not categorically a DTO.

In the new opinion, the majority focuses on the elements of a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,” to the Georgia PWID statute.  Moncrieffe recognized that the elements of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the same.  The only reason Georgia PWID is not an aggravated felony is that the distribution of a small amount of marijuana for no remuneration is a misdemeanor under the CSA, and only CSA felonies would be an aggravated felony.  In contrast, § 2L1.2 does not require that an offense be a CSA felony in order to be a DTO. 

The new Martinez-Lugo majority opinion claims Martinez-Lugo never argued that the elements of Georgia PWID differ from the elements of the generic, contemporary PWID offense but instead argued that Moncrieffe controls.  The majority “decline[s] to extend Moncrieffe to the different scheme embodied in the Guidelines absent clear direction to do so. . . . Under a straightforward application of the categorical approach, the Georgia offense under which Martinez-Lugo was convicted has the same elements as the generic possession with intent to distribute offense.” 

Judge Dennis dissents.  He interprets Moncrieffe as making clear that the generic definition of a “trafficking” does not include sharing a small amount of marijuana for no remuneration.  The CSA recognizes this by treating such an offense as a misdemeanor simple possession.  Since the categorical approach requires a court to examine the least culpable act punishable under a statute, which would include sharing a small amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.  Judge Dennis also criticizes the “ironic and illogical inconsistency” that, under the majority’s decision, Martinez-Lugo receives a 16-level enhancement for a DTO but would not be subject to the 8-level enhancement for an aggravated felony.

Note:  This is the second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the defendant and then withdrew the opinion and entered an opinion affirming the enhancement.  See United States v. Rodriguez-Escareno, 700 F.3d 751, 753 (5th Cir. 2012) (superseding prior opinion that held conspiracy to distribute meth was not a DTO).

180+ Day Incarceration, Regardless of Nature of Offense, Negates “Good Moral Character” for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision

Rodriguez-Avalos v. Holder, No. 13-60736 (5th Cir. Mar. 4, 2015) (Davis, Dennis, Costa) (per curiam)

This case involves the statutory interpretation of the good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR cancellation of removal, 8 U.S.C. § 1229b(b)(1).  Rodriguez-Avalos is a Mexican citizen who entered the United States without being admitted or paroled in April 1999.  He was living in Nebraska when he was interviewed by a Department of Homeland Security (DHS) agent in connection with an identity theft investigation of the grocery store where Rodriguez-Avalos worked.  He admitted to having no documentation enter or work in the United States, and he was arrested that day and served with a Notice to Appear (NTA)—May 3, 2011.   

Criminal Case: Following the arrest, Rodriguez-Avalos was indicted with falsely and willfully representing himself to be a U.S. citizen in violation of 18 U.S.C. § 911.  He pled guilty and, on January 18, 2012, he was sentenced to 14 months of imprisonment and served approximately 7 months before being released.

Immigration Case: Rodriguez-Avalos was “formally” served with the NTA on November 28, 2012.  He subsequently appeared in immigration court and conceded his removability but applied for cancellation of removal.  Section 1229b(b)(1), or non-LPR cancellation require 10 years of physical presence “immediately preceding the date of such application”; “good moral character during such period”; no convictions for a crime involving moral turpitude (CIMT), controlled substance offense, or aggravated felony; and a showing that removal would result in exceptional and extremely unusual hardship to U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent, or child.  See § 1229b(b)(1).  Section 1101(f)(7) defines “good moral character” in part as requiring no confinement, as a result of conviction, to a penal institution for an aggregate period of 180 days or more during the GMC period. 

Is Rodriguez-Avalos still eligible for non-LPR cancellation if he was confined for 7 months due to a § 911 conviction within the 10 years prior to applying for cancellation?  Not according to the immigration judge, the Board of Immigration Appeals, or the Fifth Circuit panel.

Rodriguez-Avalos presented two arguments:

1)      His § 911 conviction is not a CIMT and, thus, his incarceration should not preclude him from establishing GMC.

2)      His prison term fell outside of the relevant time period because of the stop-time rule, 8 U.S.C § 1229b(d)(1), which ends the 10-year period when an NTA is served upon the petitioner

The panel rejected both arguments:

“[A]pplying the Skidmore standard, the BIA did not err in concluding that a petitioner cannot establish good moral character if he has been incarcerated for 180 days or more, regardless of the nature of the underlying crime of conviction.”  The BIA’s conclusion was a plain reading of the text, and such a reading is consistent with Fifth Circuit precedent. 

“[T]he BIA’s interpretation of Section 1229b(b)(1) as requiring a petitioner to establish good moral character during the ten-years immediately preceding the final administrative decision regarding the petitioner’s application for cancellation of removal is entitled to deference under Chevron.”  See Inre Ortega-Cabrera, 23 I & N Dec. 793, 798 (BIA 2005).  The panel rejects Rodriguez-Avalos’ argument that the 10-year GMC period must mirror the 10-year physical presence period which stops upon the service of the NTA.  The BIA determined that extending the GMC period to the final administrative decision best comported with congressional intent because it would allow for consideration of any false testimony during the proceeding, see § 1101(f)(6), and allow the immigration judge to determine the petitioner’s most recent behavior.

How does this affect criminal defense attorneys?  It’s one more immigration consequence to add to your checklist. If your client is otherwise eligible for non-LPR cancellation of removal (10-year physical presence in US, GMC, no disqualifying convictions, and has USC/LPR qualifying relatives for whom your client’s removal could arguably result in extreme and unusual hardship), be aware that confinement of 180 days or more after a conviction—regardless the nature of the offense—will make him or her ineligible.  Fight for pretrial release, a sentence less than 180 days, and definitely advise your client of the consequences of the conviction and a 180+ day sentence.

Other consequences?  The panel’s interpretation of § 1101(f)(7) is in the context of § 1229b(b)(1).  Nevertheless, this opinion could impact the analysis of the 180-day incarceration analysis in any other GMC context, such as naturalization and VAWA relief.  Also, note the panel did not decide the issue by finding § 911 to be a CIMT.