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SCOTUS: Second Simple Drug Possession Offense Is Not Aggravated Felony Unless Prosecuted As Recidivist Offense

by César Cuauhtémoc García Hernández

In a decision of enormous significance to many thousands of non-citizens, the U.S. Supreme Court announced this week that a second or subsequent simple drug possession offense does not constitute illicit trafficking in a controlled substance unless the subsequent offense was prosecuted in the criminal proceeding on the basis of a prior conviction. Carachuri-Rosendo v. Holder, No. 09-60, slip op. (Jun 14, 2010) (Stevens, Roberts, Kennedy, Ginsburg, Breyer, Alito, and Sotomayor; Scalia and Thomas concurred in the judgment). Justice Stevens wrote the Court’s opinion.

José Ángel Carachuri-Rosendo has been a lawful permanent residence since 1983 when he entered the USA with his parents at the age of five. Many years later in his mid-twenties he pleaded guilty to possessing less than two ounces of marijuana for which he received a twenty-day jail term. One year later, in 2005, he pleaded nolo contendere to possession of one tablet of the prescription medication Xanax without a prescription. Carachuri-Rosendo, No. 09-60, slip op. at 5-6. For this he received a ten-day sentence. Carachuri-Rosendo, No. 09-60, slip op. at 10.

DHS initiated removal proceedings in 2006 based on his Xanax conviction. Carachuri-Rosendo conceded removability and applied for Cancellation of Removal for LPRs under INA § 240A(a), 8 U.S.C. § 1229b(a). Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 6. The IJ found Carachuri-Rosendo ineligible for cancellation because, the IJ concluded, Carachuri-Rosendo’s second simple possession conviction constituted an aggravated felony. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 6-7. A conviction for an aggravated felony is a statutory bar to eligibility for cancellation. INA § 240A(a)(3). Carachuri-Rosendo appealed to the BIA.

Simple drug possession is ordinarily classified as a misdemeanor under federal law. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 2. “[O]nly recidivist simple possession offenses are ‘punishable’ as a federal ‘felony’ under the Controlled Substances Act, 18 U.S.C. § 924(c)(2). And thus only a conviction within this particular category of simple possession offenses might, conceivably, be an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43) [INA § 101(a)(43)]. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 3. Though there are two-dozen categories of aggravated felonies, the relevant category in this case is the “illicit trafficking in a controlled substance…including a drug trafficking crime (as defined in section 924(c) of title 18).” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 2; INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B).

In a published decision issued three years ago, the BIA held that it would not consider Carachuri-Rosendo’s second conviction an aggravated felony because there was no evidence that this conviction was prosecuted as a recidivist offense. Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 391 (BIA 2007). The BIA recognized, however, that the Fifth Circuit, where Carachuri-Rosendo’s immigration case was located, had issued a contrary precedential decision, thus tying the BIA’s hands within that circuit. Matter of Carachuri-Rosendo, 24 I&N Dec. at 386.

Perhaps with an eye toward eventual Supreme Court review, Carachuri-Rosendo appealed the BIA’s decision to the Fifth Circuit. According to the Supreme Court, the Fifth Circuit “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.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 8.

Justice Stevens, writing for the Supreme Court, took issue with the Fifth Circuit’s position—repeated by the government at oral argument and in its brief—that, for purposes of cancellation, there is no difference between how Carachuri-Rosendo was actually prosecuted and how he could have been prosecuted had he been prosecuted in federal court. The statutory language concerning cancellation, Stevens wrote, “limits the Attorney General’s cancellation authority only when the noncitizen has actually been ‘convicted of a[n] aggravated felony’—not when he merely could have been convicted of a felony but was not.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 14.

It is not enough simply for DHS to produce evidence of two possession offenses, Stevens added. Rather, the criminal prosecutor must have followed the criminal procedure required for punishment as a recidivist offense. In federal courts, “the Controlled Substances Act requires that a prosecutor charge the existence of the prior simple possession conviction before trial, or before a guilty plea. See 21 U.S.C. § 851(a)(1). Notice, plus an opportunity to challenge the validity of the prior conviction used to enhance the current conviction, §§ 851(b)-(c), are mandatory prerequisites to obtaining a punishment based on the fact of a prior conviction.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 3-4.

In other words, the recidivist offender procedure allows prosecutors to raise a misdemeanor offense to a felony when a prior conviction exists. To enhance sentencing in this manner, however, the prosecutor must first prove that a prior conviction in fact exists. This is an intuitive requirement—the penalty for a second offense can only be raised if a first offense is shown to exist. A prior conviction may be found “only by a judge” in the criminal proceeding “by a preponderance of the evidence.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 3 n.3. A criminal defendant can challenge the prosecutor’s evidence—perhaps by showing that the prosecutor has the wrong person or that the two offenses are not sufficiently similar as to satisfy the recidivism requirement.

The Court suggests that a state criminal procedure equivalent would suffice in state criminal prosecutions. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 4. Texas, like most states, has a process that is analogous to the federal recidivist offender sentencing enhancement process. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 6. (At oral argument, Justice Kennedy pointed out that all but five states have a recidivist offender provision.) Interestingly, the state prosecutor chose not to seek a recidivist offender enhancement. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 6.

To follow the Fifth Circuit’s approach, the Supreme Court suggests, would be to subvert the discretion granted to prosecutors to determine what offenses they prosecute and what sentences they seek. “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.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 15. The Court seems to think that it is the prosecutor rather than the Immigration Judge who should decide whether a person is charged with a misdemeanor or felony.

The bottom line as a result of Carachuri-Rosendo, therefore, is that a second or subsequent simple possession conviction may only be considered an aggravated felony if the prosecutor followed the recidivist offender procedure during the criminal proceeding. In the Court’s crystal clear language: “We hold that when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been ‘convicted’ under § 1229b(a)(3) [INA § 240A(b)(3)] of a ‘felony punishable’ as such ‘under the Controlled Substances Act,’ 18 U.S.C. § 924(c)(2).” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 18.

The Court, however, was not satisfied with resolving whether the recidivist offense procedure must have been followed during the criminal proceeding. The Court also seemed interested in sending a message that the aggravated felony provisions have become nonsensical. Justice Stevens devoted several paragraphs to pointing out that it makes no sense to categorize simple possession as an aggravated felony. Using the usual canon of statutory construction that requires that the terms of a statute be read in their ordinary meaning, the Court explained that “simple possession is not typically thought of as an ‘aggravated felony’ or as ‘illicit trafficking.’” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 9. Relying on its definition of illicit trafficking in Lopez v. Gonzales, 549 U.S. 47, 53-54 (2006), as involving “some sort of commercial dealing,” the Court noted that there was no commerce involved in Carachuri-Rosendo’s possession of one Xanax tablet. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 10. Indeed, “a reading of this statutory scheme that would apply an ‘aggravated’ or ‘trafficking’ label to any simple possession offense is, to say the least, counterintuitive and ‘unorthodox.’” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 10.

Nor does the Court think that Carachuri-Rosendo’s ten-day sentence can be considered the basis of an aggravated felony finding. For one, a felony is understood as a serious crime that requires imprisonment by at least one year. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 10. Moreover, “An ‘aggravated’ offense is one ‘made worse or more serious by circumstances such as violence, the presence of a deadly weapon, or the intent to commit another crime.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 10 (quoting Black’s Law Dictionary 75 (9th ed. 2009)). It belies the rules of English—and, though the Court does not say so, perhaps arithmetic—to interpret a ten-day sentence as a more serious form of an offense that requires at least a year imprisonment. In the Court’s words, “the Government argues for a result that ‘the English language tells us not to expect.’” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 10 (quoting Lopez, 549 U.S. at 54).

In an odd paragraph toward the end of its opinion, the Court seems to try to assuage the fears of anti-immigrant voices that this decision will endanger the nation. This decision, the Court notes, simply grants Carachuri-Rosendo the ability to apply for relief from removal; it does not affect the fact that he has already been found removable. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 17. In other words, if he is allowed to remain in the USA it is because the Attorney General—more realistically, an Immigration Judge acting on the Attorney General’s behalf—decides that his life equities outweigh his shortcomings, including his two possession convictions. Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 17. This is complicated by the fact that “[s]ince the Court of Appeals issued its decision in this case, Carachuri-Rosendo has been removed.” Carachuri-Rosendo v. Holder, No. 09-60, slip op. at 8 n.8.

The Court then minimizes the impact that this decision will have. “[T]o the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.” I agree that this decision will have little—most likely, no—impact on the policing the country’s borders.

However, I’m skeptical that this decision will have a limited impact. Given the country’s zeal for prosecuting low-level drug users, the pool of non-citizens with simple drug possession convictions is vast. This decision, I think, will quickly become a major presence in Immigration Courts across the country.

About The Author

César Cuauhtémoc García Hernández is a professor at Capital University Law School in Columbus, Ohio and of counsel at the Law Offices of Raúl García & Associates. He also writes, a blog about the convergence of criminal law and immigration law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.