Supreme Court to revisit “aggravated felony” provision: Is a crime that might be a federal misdemeanor a drug trafficking offense?
Having just decided in February that two tax crimes constitute aggravated felonies under the Immigration and Nationality Act, the U.S. Supreme Court will again jump into the messy nuances of the aggravated felony provision in Moncrieffe v. Holder, in which the court granted certiorari today. Moncrieffe v. Holder, No. 11-702 (see order granting cert). This time the Court will decide whether possession of marijuana with intent to distribute comes within this broad category of offenses that significantly decreases a non-citizen’s ability to remain in the United States.
Last November, the U.S. Court of Appeals for the Fifth Circuit held that a Georgia conviction for possessing marijuana with intent to distribute constitutes a drug trafficking type of aggravated felony. Moncrieffe v. Holder, 662 F.3d 387, No. 10-60826, slip op. (5th Cir. Nov. 8, 2011) (Jones, Haynes, and Crone, JJ.). Chief Judge Jones wrote the panel’s opinion.
This case involved a lawful permanent resident who pleaded guilty to possessing marijuana with intent to distribute, Ga. Code § 16-13-30(j). Originally, the Department of Homeland Security alleged that this was both a controlled substances offense (CSO), INA § 237(a)(2)(B), and a drug trafficking aggravated felony, INA § 101(a)(43)(B). Because the Board of Immigration Appeals (BIA) only decided the aggravated felony issue, however, the Fifth Circuit had no need to address the CSO charge. Moncrieffe, No. 10-60826, slip op. at 2.
Thus, the Fifth Circuit began its analysis by explaining that “[d]rug trafficking crimes’ include any [crime that would constitute a] felony punishable under the CSA [Controlled Substances Act], see 18 U.S.C. § 924(c)(2), even if the offense is a misdemeanor under state law.” Moncrieffe, No. 10-60826, slip op. at 4 (citing Lopez v. Gonzales, 549 U.S. 47, 60 (2006)). In Lopez, the Supreme Court determined that while “[m]ere possession is not…a felony under the federal CSA,” possession with intent to distribute is. Lopez, 549 U.S. at 53. The only exception to this rule is for possession with intent to distribute “small amount[s]” of marijuana, which is classified as a misdemeanor. 21 U.S.C. § 841(b)(4).
The Fifth Circuit was then left with the challenge of determining whether Moncrieffe’s conviction under Georgia law was for conduct that fell within the misdemeanor or felony provision of the federal CSA. To do this, the court stated that it applied “a categorical approach to determine whether a state conviction qualifies as a felony under the CSA.” Moncrieffe, No. 10-60826, slip op. at 4.
Despite the court’s reference to a “categorical” analysis, it actually applied a modified categorical approach. The categorical approach allows a court to consider only the state statute of conviction in comparison with the relevant federal provisions, while the modified categorical approach allows consideration of the record of conviction in state court as well. Indeed, it is appropriate that the Fifth Circuit applied a modified categorical approach because the Georgia statute is divisible—that is “some conduct would be punished as a felony,” thus coming within the drug trafficking definition of aggravated felony, “but other conduct only punished as a misdemeanor under the CSA,” thus not constituting a drug trafficking type of aggravated felony. Moncrieffe, No. 10-60826, slip op. at 4.
Here, Moncrieffe’s record of conviction did not specify the quantity of marijuana involved in his conviction. This fact is critical because “[o]rdinarily, convictions for possession with intent to distribute are felonies under the CSA,” but the federal statute “provides for misdemeanor treatment for distribution of small amounts of marijuana without remuneration.” Moncrieffe, No. 10-60826, slip op. at 5 (citing 21 U.S.C. § 841(b)(4)).
If Moncrieffe were convicted for possession of a quantity of marijuana that would constitute a federal misdemeanor, then his conviction would not be an aggravated felony. If, however, he were convicted for an amount punishable as a federal felony, then his conviction would be an aggravated felony. Even if, on remand, he is found to have been convicted of a CSO, which the Georgia offense almost certainly is, not falling within an aggravated felony provision has real consequences for his chance to remain in the country. An aggravated felony conviction would render him removable and ineligible for the most charitable form of relief from removal that currently exists in immigration law, cancellation of removal, relief that would still be available if his conviction is only for a CSO. INA § 240A(a).
Because the record of conviction did not indicate the amount of marijuana involved, the Fifth Circuit had to determine whether not knowing the amount means that the conviction should be treated as a misdemeanor or felony. After recognizing a circuit split on this issue (with the “First and Sixth Circuits hold[ing] that the default punishment under § 841 is a felony, while the Second and Third Circuits hold that the default punishment is a misdemeanor.”), the Fifth Circuit chose to treat the conviction as a felony. Moncrieffe, No. 10-60826, slip op. at 5.
Relying on the Sixth Circuit’s approach, the Fifth Circuit determined that “the misdemeanor provision [of the federal possession with intent to distribute offense] ‘is best understood as a mitigating sentencing provision’ and not a stand alone misdemeanor offense.’” Moncrieffe, No. 10-60826, slip op. at 6 (quoting United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002)).
Borrowing from the comparable criminal sentencing context involving the same federal statute, the Fifth Circuit explained that it previously held “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, § 841(b)(1)(D), rather than the misdemeanor provision.” Moncrieffe, No. 10-60826, slip op. at 6 (discussing United States v. Walker, 302 F.3d 322, 324 (5th Cir. 2002)).
Following this logic, the Fifth Circuit went on to hold that the burden is on the LPR to show that his conviction involved an amount of marijuana that would fall within the misdemeanor provision rather than require the government to show that the conviction involved a felony amount. In the court’s words, “Even if that section of the Georgia code could cover conduct that would be considered a misdemeanor under § 841(b)(4), Moncrieffe bore the burden to prove that he was convicted of only misdemeanor conduct.” Moncrieffe, No. 10-60826, slip op. at 7. The court placed the burden on Moncrieffe despite the INA’s explicit provision that the government bears the “burden of establishing by clear and convincing evidence that, in the case of an alien who has been admitted to the United States, the alien is deportable.” INA § 240(c)(3).
Thus, the Supreme Court will decide whether a state possession with intent to distribute conviction that includes distribution of small amounts of marijuana constitutes an aggravated felony “notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal law felony.” Petition for Writ of Certiorari, Moncrieffe v. Holder, No. 11-702 (Dec. 7, 2011).
Attesting to the nebulous state of many crime-based immigration law provisions, today’s grant follows two decisions already issued this Term about other aspects of the intersection of criminal law and immigration law: Vartelas v. Holder, 566 U.S. –, No. 10-1211, slip op. (March 28 2012), and Kawashimi v. Holder, 565 U.S. --, No. 10-577, slip op. (Feb. 21, 2012). Hovering above all of these cases, of course, is the Court’s much anticipated consideration of Arizona v. United States, Arizona’s attempt to revive its controversial immigration law (Senate Bill 1070), scheduled for oral argument on April 25.
Arizona is likely to be a blockbuster decision, no matter what the Court decides. Moncrieffe won’t get the media attention of Arizona, but it will ensure that the Court’s efforts to make sense of crImmigration law will continue.