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Moncrieffe v. Holder: A Little Bit of Marijuana Is Not an Aggravated Felony for Immigration Purposes

Today, the U.S. Supreme Court ruled that a small amount of marijuana would not be considered an aggravated felony for the purposes of removal proceedings. The opinion of the Court was delivered by Justice Sotomayor. To read the full opinion, visit: https://www.supremecourt.gov/opinions/12pdf/11-702_9p6b.pdf.

Adrian Moncrieffe, a Jamaican citizen, came to the U.S. legally in 1984. In 2007, he was pulled over for a traffic stop when police found 1.3 grams of marijuana in his car, the equivalent of two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Georgia state law. Moncrieffe, who was a first time offender, receive a lenient sentence of five years of probation, after which his charge was expunged all together.

Not long after, the Federal Government alleged that Moncrieffe’s possession of marijuana with intent to distribute conviction were an aggravated felony and tried to deport him. The Government argued that Moncrieffe’s possession of marijuana with intent to distribute conviction was an offense under the CSA, 21 USC §841(a), punishable by up to five years’ imprisonment, and thus an aggravated felony. The Immigration Judge agreed and ordered Moncrieffe to be removed. The Board of Immigration Appeals (BIA) affirmed the conclusion on appeal. The Court of Appeals denied Moncrieffe’s petition for review stating that the federal criminal prosecution default sentencing range for marijuana distribution is the CSA’s felony provision, §841(b)(1)(D), rather than the misdemeanor provision.

The issue brought before the Supreme Court was whether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction of an offense that “proscribes conduction  punishable as a felony under” the CSA. Lopez, 549 U.S., at 60. On certiorari, the Supreme Court reversed.

A noncitizen may become removable and ineligible for discretionary forms of relief if he or she has been convicted of a narrow set of crimes classified as “an aggravated felonies”. §1227(a)(2)(A)(iii). The general term of “aggravated felony” is not defined by the INA; however it is generally understood to include drug trafficking crimes. §1101(a)(43)(B). A felony is generally defined as an offense for which the maximum term of imprisonment is authorized is more than one year. §3359(a)(5). However, a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify as an aggravated felony, but as “state offense constitutes a ‘felony punishable under the CSA’ only if it prescribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U.S. 47, 60 (2006).

To determine if a state conviction qualifies as an aggravated felony under the INA the Court must generally employ the “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U.S. 29, 33-38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-187 (2007). Under this approach, the Court does “not look to the fact of the particular case” but to the whether, “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 496 U.S. 575, 599-600 (1990)). By “generic” the Court means the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, the state offense is a categorical match with a generic federal offense only if a conviction of the state offense “’necessarily’ involved…facts equating to [the] generic [federal offense].” Shephard v. United States, 544 U.S. 13, 24 (2006) (plurality opinion.)

In the instant case, the Supreme Court held that a small amount of marijuana would not be considered an aggravated felony for the purpose of removal proceedings because Moncrieffe’s state conviction did not necessarily proscribe conduct that is an offense under the CSA, and the CSA did not necessarily prescribe felony punishment for that conduct.

The Court was able to definitively determine that Moncrieffe was convicted for an offense that would necessarily proscribe conduct that was an offense under the CSA. However, the Court had to also determine whether Moncrieffe’s state conviction was “necessarily” conduct punishable as a felony under the CSA. To make this determination the Court stated it had to look at more than just “any offense under the CSA”, it had to look at “any felony punishable under the CSA”. In performing this analysis, the Court looked to the punishments the CSA imposed for offenses.

In section 841 the CSA is divided into two subsections that include punishments imposed for particular offenses. The main provisions of the law are punishable as felonies, however section (4) includes an exception to the main provisions of the law, finding, “any person who violates subsection (a)…distributing a small amount of marijuana for remuneration shall be treated as” a simple drug possessor, 21 USC §844, a misdemeanor offense for this particular case. Because of the main provision’s exception, the Court needed to perform further analysis to determine if Moncrieffe’s conviction would qualify for the section (4) exception under the CSA.

To perform this analysis, the Court looked to Georgia state law to determine if remuneration would mean that paragraph (4) is not implicated and thus that the state felony conviction is necessarily conduct punishable as a felony under the CSA. The Court determined that, standing alone, a conviction for possession with intent to distribute marijuana, does not reveal whether either remuneration or more than a small amount of marijuana was involved. The Court reasoned that there was ambiguity as to whether Moncrieffe’s state felony conviction would correspond to a federal misdemeanor conviction or a federal felony conviction. Thus, the Court found that this ambiguity meant that Moncrieffe’s state felony conviction could not necessarily correspond to an offense punishable as a felony under the CSA.

Alternatively, the Government offered a different approach toward analyzing Moncrieffe’s convictions, which the Court ultimately rejected. The Government’s alternative approach stated that a misdemeanor provision is irrelevant to the categorical analysis because paragraph (4) was merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the offense.

To support its assertion, the Government argued that the categorical approach was only concerned with the elements of an offense, so §841(b)(4) “is not relevant” to the categorical analysis. The Government argued that possession of marijuana with the intent to distribute was presumptively a felony under the CSA, thus any state offense with the same elements is presumptively an aggravated felony. The Court rejected this argument citing Carachuri-Rosendo, in which the Court determined that, “when Congress chooses to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too”. See 560 U.S. at ___ (slip op. at 3). The Court stated that here the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending on the presence or absence of certain factors that are not themselves elements of the crime. Thus, to qualify as an aggravated felony, the predicate offense must necessarily establish those factors not included as elements of a crime as well.

Additionally, the Government attempted to distinguish Carachuri-Rosendo by arguing that the sentencing factor in that case there was a “narrow” aggravating exception that turned a misdemeanor into a felony, whereas under §841(b)(4) and in this case there is a narrow mitigation exception that turns a felony into a misdemeanor. The Court rejected this argument stating that a marijuana distribution conviction is not presumptively a felony and is neither a felony nor a misdemeanor until it is determined if the conditions in paragraph (4) attach. The Court stated that unlike the default felony provision routine in federal criminal prosecutions for marijuana distribution cases, the CSA’s text makes neither the felony nor misdemeanors provision the default for marijuana distribution cases. Thus, the Court must look to a categorical approach to determine whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, make punishable as a felony.

Finally, the Court rejected the Government’s argument for an alternative approach by stating that it would render even an undisputed misdemeanor an aggravated felony. According to the Government’s alternative approach any conviction under the Georgia state statute for possession of marijuana with intent to distribute would be categorically deemed an aggravated felony because the statute contains the corresponding “elements” of the offense. This would have detrimental effects for noncitizens convicted of misdemeanors in federal court under §§841(a) and (b)(4) directly because their misdemeanor convictions would need to be treated as aggravated felonies because their convictions establish elements of an offense that presumptively a felony. The Court stated that, “[It] cannot imagine Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have the courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U.S., at 58.

Thus, the Court held that a small amount of marijuana would not qualify as an aggravated felony for the purpose of removal proceedings under federal law. Additionally the Court found that noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defense could do at sentencing.

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