Monday, November 17, 2008

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.

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Anonymous Anonymous said...

On November 6, a panel denied my appeal from the granting, then denial of a coram nobis, alleging ineffective assistance of counsel for affirmatively misrepresenting and alternatively, failing to warn of immigration consequences, and lastly, of the court's failure to warn at all of immigration consequences. While a civil case, it squarely addresses a lawyer's obligation regarding their client's immigration status, vis a vis the Strickland test. I noted in note 4 of the opinion that the court may be hinting at a request for en banc consideration. In any event, I believe it is important to comment on what I believe to be an outdated, and flat out senseless lack of standards for attorneys representing non-citizen clients. The case is Santos-Sanchez v. US, No. 07-40145. Your commentary is welcome, and may prompt someone in the court to take a second look at this decision, particularly as it concerns a lawyer's obligation to warn, or at least, not affirmatively misrepresent a client about their immigration consequences.



11/18/2008 09:49:00 AM  

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