9th Circuit In Cazarez-Gutierrez v Ashcroft Holds Felony Simple Possession Of A Controlled Substance Is Not An Aggravated Felony
by Kathy Brady
An offense that does not involve drug trafficking, such as simply possessing a controlled substance, can be an aggravated felony under the drug trafficking category, as long as it is analogous to a federal offense and a "felony" under some standard. What the felony standard is has been the subject of much litigation and changing of rules. Does it depend on whether the state that imposes the conviction classifies it as a felony (the "law of the convicting jurisdiction")? Or should there be a uniform federal rule, so that the standard is whether the state offense would have been classed as a felony if the case had been brought in federal court (the "hypothetical federal prosecution")?
Warning. At this writing petition deadlines have not run and it is still possible that Cazarez-Gutierrez could be re-heard en banc or appealed to the Supreme Court. Until that is resolved, criminal defense counsel should where possible act conservatively and avoid a felony conviction for simple possession, by postponing a plea or pleading to an alternate offense. Even with the Cazarez-Gutierrez ruling, a state felony simple possession conviction has serious legal liabilities. It is an aggravated felony for purposes of federal prosecution for illegal re-entry, and it will be held an aggravated felony in immigration proceedings outside the Second, Third and Ninth Circuits.
The following is the standard regarding when a conviction for simple possession of a controlled substance is an aggravated felony in immigration and federal criminal proceedings in the Ninth Circuit under Cazarez-Gutierrez and other precedent.
These examples illustrate the rules under Cazarez-Gutierrez, and assumes that the immigration proceedings described take place within the Ninth Circuit.
The current rule for immigration proceedings arising within the jurisdiction of the Ninth Circuit is set out in Cazarez-Gutierrez. There the Court overruled the BIA to hold that the hypothetical federal prosecution rule determines whether a state offense such as simple possession is a "felony" and therefore an aggravated felony in immigration proceedings. Because federal simple possession is a misdemeanor, a state conviction for simple possession is not an aggravated felony, regardless of whether the state designates the offense as felony or misdemeanor.  The exception is a state felony or misdemeanor conviction for simple possession of more than five grams of cocaine base (crack) or any amount of flunitrazepam (a date-rape drug). Because this offense is punishable as a felony under federal law, any state conviction also will be held an aggravated felony.
Cazarez-Gutierrez concerned a single conviction, but read in combination with other precedent it means that multiple convictions for simple possession should not be found to be aggravated felonies. Cazarez-Gutierrez holds that whether a state simple possession conviction is a "felony" and therefore an aggravated felony depends upon whether the analogous federal conviction would be. It is true that a second conviction for simple possession is punishable as a felony under federal law, because a sentence enhancement is imposed for recidivism. However the Ninth Circuit en banc in U.S. v Corona-Sanchez  ruled that a recidivist sentence enhancement will not be considered in calculating the maximum possible sentence for an offense in a categorical analysis. Rather, the unenhanced maximum potential sentence for the core offense - here simple possession, carrying a maximum possible sentence of a year - is the measure. The Ninth Circuit applied this rule to drug cases and specifically held that Corona-Sanchez overruled prior Ninth Circuit decisions holding that a second federal, and therefore state, possession conviction is an aggravated felony.  Thus a person convicted of two or more felony or misdemeanor simple possession offenses does not have a conviction of an aggravated felony, as long as the substance involved was not flunitrazepam or more than 5 grams of crack cocaine.
The previous immigration rule under Matter of Yanez. For some years the BIA had employed the hypothetical federal prosecution rule that the Ninth Circuit has just set out in Cazarez-Gutierrez, i.e. that a state conviction of simple possession is an aggravated felony only if the analogous federal offense is punishable as a felony. But after circuit courts of appeal repeatedly employed the "convicting jurisdiction" rule in federal criminal cases - that the felony/misdemeanor classification of the state can qualify an offense as an aggravated felony - the BIA finally reversed itself in order to conform with the federal decisions. Thus in Matter of Yanez-Garcia and a companion case, the BIA held that a first state felony conviction for simple possession was an aggravated felony, but even a second state misdemeanor conviction for simple possession was not aggravated felony. Now the Ninth Circuit has reversed the BIA, going back to the pre-Yanez rule of the federal hypothetical prosecution. The Ninth Circuit rule differs from the pre-BIA Yanez rule in one important way: as discussed above, the Ninth Circuit has abandoned the former rule that a second conviction of simple possession is an aggravated felony.
If the Ninth Circuit en banc or the Supreme Court were to overturn Cazarez-Gutierrez, the rule might go back to Matter of Yanez: that an offense that is a felony under the law of the convicting jurisdiction is an aggravated felony.
Federal Sentence Enhancement
Federal prosecutions for illegal re-entry carry a harsh sentence enhancement for a prior conviction of an aggravated felony under 8 USC §1326(b)(2). Again the offense must be a "felony" under some test in order to be an aggravated felony.
In simple possession cases the result is straightforward, although the legal standard may be in flux. If a simple offense conviction is a felony under the law of the convicting jurisdiction, the offense is an aggravated felony for purposes of the federal sentence enhancement for illegal re-entry. A felony is defined as an offense potentially punishable by more than a year's imprisonment.  The confusion about the legal standard is whether both the federal analogue and the convicting jurisdiction rule apply at the same time in these cases, in essence giving the prosecution two bites at the apple. Recent authority suggested that it would be fairer to consider only the law of the convicting jurisdiction.  As long as the cases involve only simple possession, however, the court will not need to address this conflict directly. As discussed above, under Corona Sanchez almost no simple possession conviction is an aggravated felony, so the law of the convicting jurisdiction will be determinative.
In Lujan-Armendariz v INS, the Ninth Circuit held that as a matter of equal protection, state "rehabilitative relief" to eliminate a conviction (which would include California deferred adjudication, Proposition 36 or P.C. §1203.4) also will eliminate the immigration effect of a first conviction for simple possession of a controlled substance.  This should apply to a felony or misdemeanor conviction of simple possession.  The court subsequently held that the Lujan-Armendariz benefit also applies to a first conviction of a controlled substance offense that is less serious than simple possession and that is not analogous to a federal drug offense.  Foreign rehabilitative relief eliminates the immigration consequences of a foreign conviction for simple possession or a less serious offense that has no federal analogue.  See discussion at §3.14.
Excerpted from Brady et al, California Criminal Law and Immigration (2004 edition forthcoming at www.ilrc.org), reprinted with permission.
 8 USC §1101(a)(43)(B), INA 101(a)(43)(B), includes in the definition of aggravated felony "any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code)". Section 924(c)(2) reads, "For purposes of this subsection, the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act, 21 USC 801, et seq., the Controlled Substances Import and Export Act, 21 USC 951, et seq., and the Maritime Drug Law Enforcement Act, 46 USC App. 1901, et seq."
Katherine Brady is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. She has practiced immigration law since 1983. She is the author or co-author of several manuals and books on various aspects of immigration law, and specializes in particular in the intersection between immigration and criminal law. Since 1990 she has been the principal author of California Criminal Law and Immigration, a comprehensive manual published by the Immigrant Legal Resource Center (ILRC). (For information contact firstname.lastname@example.org) For several years she has served as co-author of the chapter on defending non-citizens in the basic CEB manual, California Criminal Law - Procedure and Practice. She has authored articles in CACJ Forum and other publications on the criminal defense of immigrants, and spoken extensively on the subject at national and local conferences and meetings. With longtime criminal defense practitioner Norton Tooby, Ms. Brady and the ILRC present four full-day seminars annually in California on criminal defense of non-citizens. (For information on these seminars, contact email@example.com) She is the author of the "Quick Reference Chart of Immigration Consequences of California Convictions" and accompanying "Notes" that can be found at www.ilrc.org/Cal_DIP_Chart_by_section.pdf.
Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email: firstname.lastname@example.org
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