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.

Second or Subsequent Simple Possession Conviction Not An Aggravated Felony If Committed Before First One Became Final

United States v. Andrade-Aguilar, No. 07-41132 (5th Cir. May 27, 2009) (Barksdale, Dennis, Elrod)

As you know, our circuit has held that a second or subsequent conviction for simple possession of a controlled substance can be an aggravated felony. (Other circuits disagree.) But the key word is "can." The second or subsequent possession conviction is only an aggravated felony if it was committed after the conviction for the first one became final. And—perhaps more importantly—not only does the Government have the burden of showing finality when it seeks application of an "aggravated felony" sentencing enhancement, but a record that is simply silent as to whether an appeal was taken will not carry that burden if the two priors are sufficiently close in time.

How do we get there? The term "aggravated felony" includes "drug trafficking crimes." In Lopez v. Gonzales, the Supreme Court held that the term "drug trafficking crime" means an offense punishable as a felony under the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). Under 21 U.S.C. § 844(a), simple possession is generally only a misdemeanor. But it can be punished as a felony if committed after a prior conviction [for a controlled substance offense] has become final[.]" A conviction is "final," for purposes of § 844(a), when it is no longer subject to direct review or to discretionary review by any court. And the Government, as the party seeking application of a sentencing enhancement, bears the burden of showing finality.

In this case, illegal reentrant Andrade had two prior Texas simple possession convictions. Andrade committed the second one 115 days after the sentence for the first one was imposed. The second judgment was stamped "appeal waived," but the first one was apparently silent on that point.

In claiming that the [first] conviction was final, the Government cites: (1) the judgment of conviction itself, (2) the district court’s mistaken initial conclusion that that appeal had been stamped “Appeal waived,” and (3) Texas Rule of Appellate Procedure 26.2(a). The Government also complains generally of the difficulty of proving a negative (a defendant’s failure to appeal). We find none of these arguments persuasive.

First, . . . the judgment of conviction is not clear enough on the controlling question to be probative (much less dispositive): indeed, it contains no suggestion of waiver or finality whatsoever. Second, as noted above and ultimately conceded by the Government at oral argument, the relevant conviction was not stamped “Appeal waived.” Third, Texas Rule of Appellate Procedure 26.2(a) provides merely that the defendant has 30 days from the date of sentencing to file a direct appeal. Unclear from the record, however, is whether the period for both direct and discretionary review had expired. . . . [T]o show finality, the Government was required to show by a preponderance of the evidence both that (1) Andrade’s [first] conviction was “no longer subject to examination on direct appeal” . . . , and (2) that it was not subject to discretionary review by any court. However, the Government failed to establish either of these two facts. Accordingly, the Government failed to prove by a “preponderance of the relevant and sufficiently reliable evidence” that Andrade’s [first] conviction was final and thus that his [second] conviction . . . qualified for the enhancement imposed.

The court notes that "[i]n some cases, the passage of a substantial period of time may itself satisfy these requirements." But it goes on to say that in this case,

the gap between the prior . . . conviction, at which sentence was imposed, and the subsequent . . . offense was 115 days. If Andrade timely filed a direct appeal of his [first] conviction, that conviction may not have been final at the time of his [second] offense. Even if any direct appeal was unsuccessful, a petition for discretionary review filed before the [second] offense with the state court—or with the U.S. Supreme Court, if denied by the state court—may have been timely.

What this boils down to, it seems, is that a record that is simply silent as to whether a defendant pursued a direct or discretionary appeal of the first conviction is not enough to show there was in fact no appeal taken.

Some more goodness from the opinion: the district court's erroneous treatment of Andrade's second simple possession conviction as an aggravated felony was not harmless. The wrong range was 33 to 41 months, the correct range (at least on the record developed below) was 24 to 30 months, and Andrade got 34 months. He "therefore received at least four months more than the longest sentence under the harshest Guidelines range for which he may have been eligible. The district court did not indicate any departure or basis for departure from a Guidelines sentence." Hence harm.

Circuit Split Over Whether Recidivist Possession Is Necessarily an Aggravated Felony Deepens; Second Circuit Says No

Okay, referring to it as "recidivist possession" begs the question somewhat, but the post title can only accommodate so many characters. The issue, more precisely, is whether a second or subsequent state conviction for simple possession of a controlled substance is an aggravated felony simply because it could have been prosecuted as a felony under the federal Controlled Substances Act.

As you know, the circuits are split on that issue. The Fifth and Seventh Circuits have said "yes." The First, Third, and Sixth Circuits, as well as the BIA (in cases where there is no contrary circuit precedent), have said no. The Second Circuit has now joined the "no" group with its decision in Alsol v. Mukasey, Nos. 07-2068-ag(L), 08-1942-ag(CON), 08-1112-ag (2d Cir. Nov. 14, 2008):

We hold that a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction does not proscribe conduct punishable as a felony as it does not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense.

So there's another cite to add to your cert petitions.

Circuit Split on Whether Recidivist Possession Is Necessarily An Aggravated Felony; Fives Hold "Yes"

United States v. Cepeda-Rios, No. 07-50731 (5th Cir. June 4, 2008; revised July 22, 2008) (per curiam) (Jones, Wiener, Clement)

As you can see, this opinion originally issued last month, but the panel just revised it and we didn't mention it the first time around, so here goes. Plus, in the interim, there been more development in the circuit split on the question presented.

The issue: Thanks to the Supreme Court's decision in Lopez v. Gonzales, we know that a state drug offense is not an "aggravated felony" unless the conduct prohibited by the offense would have been punishable as a felony under the federal Controlled Substances Act. Thus, since a first conviction for simple possession is only a misdemeanor under 21 U.S.C. § 844(a), it isn't an aggravated felony. But § 844(a) also authorizes felony punishment for simple possession committed after a previous drug conviction has become final, provided that the procedures for proving the prior conviction under § 851 are followed. Hence the question: is a subsequent state conviction for simple possession an aggravated felony?

Prior to Lopez, the Fifth Circuit held, in United States v. Sanchez-Villalobos, that a subsequent simple possession conviction was an aggravated felony because § 844(a) authorizes felony punishment for that offense. But Sanchez-Villalobos also held that the conviction at issue was an aggravated felony under United States v. Hinojosa-Lopez, which treated all state felony simple possession convictions---first or subsequent---as aggravated felonies. Thus, as a subsequent panel of the Fifth Circuit observed in Smith v. Gonzales, the effect of Sanchez-Villalobos’s alternative holding with respect to the § 844(a) issue is "uncertain" because the decision’s ultimate holding "is fully explainable by the conclusion reached in [the part] of the decision [relying on Hinojosa-Lopez] that the conviction qualified as a felony because under state law the punishment for the offense exceeded one year."

Which brings us to Cepeda-Rios, which concluded that Lopez does not require reversal of the recidivist-possession holding in Sanchez-Villalobos. In so holding, Cepeda-Rios relied on some dicta in a Lopez footnote, in which the Court said that

Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech.

Having quoted this passage, Cepeda-Rios concluded that the hypothetical approach used in Sanchez-Villalobos is consistent with Lopez's analysis. It then relegates the real meat of the issue to a footnote of its own:

Cepeda-Rios argues that the government’s failure to comply with the procedural requirements of § 851(a) prohibit the court from enhancing his sentence under § 844(a) based on his first state possession conviction. Although Cepeda-Rios’s argument would have merit if the government was actually seeking to prosecute him under § 844(a), he was not prosecuted under that section. Thus, the relevant inquiry under the sentencing guidelines is whether the crime is punishable under § 844(a). The United States was not a party to Cepeda-Rios’s state law convictions; it had no opportunity and was not required to comply with the procedural requirements of § 851(a). Cepeda-Rios had the opportunity to object to the finality of his first state possession conviction at his federal sentencing hearing, but he did not do so.

Although the revised opinion in Cepeda-Rios doesn't mention it, there's a developing split on this issue. Prior to Lopez, the First and Third Circuits held that recidivist possession isn't automatically an aggravated felony, with the Third concluding that it won't so qualify unless the state had procedures like those found in § 851 for charging and proving a prior drug conviction, and actually employed them to establish the prior conviction in the subsequent case. See Berhe v. Gonzales, 464 F.3d 74, 85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). The Seventh Circuit, on the other hand, has reached the same conclusion as Cepeda-Rios, relying on the same footnote from Lopez. See United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007). The BIA has even gotten in on the fun, concluding that Sanchez-Villalobos remains good law in the Fifth Circuit post-Lopez, but refusing to follow it in cases arising in circuits lacking controlling precedent on the issue. See In re Carachuri-Rosendo, 24 I & N Dec. 382, 391 (BIA 2007); In re Thomas, 24 I & N Dec. 416, 421 (BIA 2007). Plus, after those BIA decisions, the Seventh Circuit issued another opinion in Pacheco-Diaz denying a petition for panel rehearing, with the author of the original panel decision dissenting from that denial (and pointing out that the issue wasn't even fully briefed, as the case was originally argued pre-Lopez)! 513 F.3d 776 (7th Cir. 2008) (per curiam). Most recently, the Sixth Circuit has weighed in on the side of of the First and Third Circuits, holding that, under the "hypothetical federal felony" approach of Lopez, a simple possession conviction occurring after a prior drug conviction is not an aggravated felony "unless [the subsequent] conviction required a finding of a prior conviction." Rashid v. Mukasey, No. 06-4270 (6th Cir. June 26, 2008).

Of course, as usual, all of this activity means that you should consider preserving the issue should it arise in any of your cases.