Tuesday, December 05, 2006

SCOTUS: State Drug Conviction Is Not Aggravated Felony Unless It Would Be Punishable as Felony Under CSA

Today the Supreme Court handed down its decision in Lopez v. Gonzales, which presented the question whether "conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a 'felony punishable under the Controlled Substances Act[,]" and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). The Court held that it is not, overruling such cases as United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

So the new rule is that a state drug conviction does not count as an aggravated felony unless the conduct prohibited by the state offense would be a felony under the federal Controlled Substances Act (21 U.S.C. § 801 et seq.). (Otherwise known as the "hypothetical federal felony" approach.) So, for example, a state felony conviction for simple possession of cocaine is not an aggravated felony because that conduct is only a misdemeanor under 21 U.S.C. § 844(a).

The decision was 8-1, with Justice Souter writing for the majority and Justice Thomas dissenting.

Professor Berman "doubt[s] this ruling will have a dramatic effect on criminal law or immigration law[,]" but I beg to differ. Illegal reentry cases account for a substantial percentage of prosecutions in federal court, and the aggravated felony determination has a significant impact on both the statutory and guideline sentencing ranges in those cases. And it's pretty common to see someone prosecuted for illegal reentry whose criminal history consists of nothing more than a felony conviction for simple possession of a small quantity of a controlled substance. Up until now, in this circuit, such a defendant would be facing a 20-year statutory maximum under 8 U.S.C. § 1326(b)(2) and an 8-level enhancement under U.S.S.G. §2L1.2(b)(1)(C). Now that defendant will be looking at "only" a 10-year statutory maximum under § 1326(b)(1) and a 4-level enhancement under §2L1.2(b)(1)(D). And as long as courts continue to sentence most defendants within the guideline range, the decision in Lopez will collectively save defendants decades if not centuries of time in prison.

By the way, you'll notice that I haven't mentioned Toledo-Flores yet (the companion case to Lopez). That's because for some reason the Court decided to dismiss the writ of certiorari in Toledo-Flores as improvidently granted.

A final aspect of Lopez that I'll mention is its emphasis on the importance of construing a definition in light of the term being defined. (For example, "ordinarily 'trafficking' means some sort of commercial dealing[,]" so Congress probably didn't intend for "drug trafficking" to include simple possession. Maj. op. at 5.) That rule of construction could also be brought to bear on the entire aggravated felony definition, not just § 1101(a)(43)(B). So perhaps the Supreme Court will bite on a cert. petition presenting this question: "Some 'aggravated felonies' are neither 'aggravated' nor 'felonies.' Discuss."

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Anonymous Anonymous said...

After reading the Fifth Circuit's opinion in Toledo-Flores, I wonder if the DIG resulted from the fact that Toledo-Flores didn't have anything to do with construction of the immigration statute, only the sentencing enhancement in a criminal conviction.


12/06/2006 11:16:00 AM  
Blogger Brad Bogan said...

Actually, Toledo-Flores involved the exact same statutory provision at issue in Lopez, albeit in the context of a criminal case. The sentencing guideline for illegal reentry (2L1.2) includes an 8-level enhancement if an alien was convicted of an aggravated felony prior to having been deported. That enhancement cross-references the aggravated felony definition found in 8 U.S.C. 1101(a)(43).

As for why the Court DIG'ed Toledo-Flores . . . who knows. It may be that the Court didn't want to deal with the mootness issue, and still had a vehicle for resolving the statutory issue in Lopez.

12/06/2006 01:31:00 PM  
Anonymous Anonymous said...

Yeah, I just thought perhaps the Court didn't want to get into the business of error correcting in the context of a criminal sentence versus a removability issue.


12/06/2006 01:35:00 PM  
Anonymous Anonymous said...

Or maybe it was the fact that the sentence given was within the correctly calculated guideline range.


12/06/2006 01:48:00 PM  

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