In a Case Comment appearing in the latest issue of the Suffolk University Law Review, Lauren P. Gearty argues that the Supreme Court should disagree with the Fifth Circuit’s holding in Carachuri-Rosendo v. Holder, 570 F.3d 263, 267-68 (5th Cir. 2009) (discussing United States v. Cepeda-Rios, 530 F.3d 333, 335 (5th Cir. 2008)), “that a second possession offense may constitute an aggravated felony regardless of whether an alien is charged or convicted as a recidivist offender.” Lauren P. Gearty, Immigration Law-Second Drug Offense Not Aggravated Felony Merely Because of Possible Felony Recidivist Prosecution, 43 Suff. L. Rev. 277, 280-81 (2010).
Gearty’s eight-page article provides a succinct overview of the circuit split that currently exists regarding subsequent possession convictions. The Fifth and Seventh Circuits consider a subsequent conviction to constitute an illicit trafficking form of aggravated felony. INA § 101(a)(43)(B). In contrast, “[t]he First, Third, and Sixth Circuits agree with the BIA that a second possession offense is not automatically a recidivist offense and therefore not an aggravated felony for immigration purposes.” Gearty at 280.
The disagreement, as Gearty explains, stems from the Supreme Court’s announcement in Lopez v. Gonzales, 549 U.S. 47, 60 (2006), that “[a] state misdemeanor drug offense is an aggravated felony if that offense would constitute a felony had it been charged under the Federal Controlled Substance Act (CSA).” Gearty at 277. The Lopez Court undeniably held that a single simple possession offense cannot be considered an aggravated felony. 549 U.S. at 60. In a footnote, however, the Court explained that recidivist possession convictions can be considered aggravated felonies. Lopez, 549 U.S. at 60 n.6.
The critical question then becomes how to determine whether a possession offense is a recidivist offense. The First, Third, and Sixth Circuits, as well as the BIA, as Gearty explains, “determined that this increased sentence [based on recidivist offenses] is only applicable if an alien admits or a judge or jury determines that the alien is a recidivist offender.” Gearty at 280. That is, these courts will only consider a second or subsequent possession to be an aggravated felony if the judge or jury at the criminal trial explicitly found that the non-citizen was a recidivist offender. In contrast, the Fifth and Seventh Circuits will consider a subsequent possession offense even where the prosecution never attempted to have the judge or jury find that the non-citizen is a recidivist offender. In these circuits, DHS counsel seems need to show that the non-citizen has been convicted of two or more simple possession convictions to render the non-citizen an aggravated felon.
This is a pressing issue that affects many individuals in removal proceedings. Gearty’s article provides helpful background in anticipation of the Supreme Court’s decision this summer. The Supreme Court granted certiorari on December 14, 2009. Oral arguments are scheduled for March 31, 2010. Briefs are available on ScotusWiki.