Question Presented (from Supreme Court docket):
The Immigration and Nationality Act provides that an alien “who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. §1227(a)(2)(A)(iii). A state law offense may constitute an “aggravated felony” if it is the equivalent of a “felony punishable under the Controlled Substances Act.” 8 U.S.C.§ 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Under the Controlled Substances Act, a person commits a felony if he possesses with intent to distribute “less than 50 kilograms of marihuana,” 21 U.S.C. § 841, except that a person whose offense involves “distributing a small amount of marihuana for no remuneration” commits only a misdemeanor, id. §§ 841(b)(4), 844.
The Question Presented, which is also pending before the Court in No. 11-79, Garcia v. Holder, is:
Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration 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.
Lower court decision (662 F.3d 387 (5th Cir. 2011))
Takeaway from the lower court decision: “Under BIA precedent, a state conviction for possessing an indeterminate amount of marijuana with intent to distribute is considered an aggravated felony under the CSA.” Didn’t matter, in other words, that “(t)he [state court] charging document and Georgia judgment did not indicate how much marijuana Moncrieffe possessed,” or that neither remuneration nor more than a small amount of marijuana had been proven. The lower court thus applied “a categorical approach to determine whether a state conviction qualifies as a felony under the CSA. Omari v. Gonzales, 419 F.3d 303, 307 (5th Cir.2005). Under the categorical approach, the court considers whether the elements of the state statute are analogous to a federal felony instead of looking at the underlying facts of the crime. Id.” There is a split of circuit court authority on the point, one the Court seemingly will resolve with this grant. You’ll want to keep a close eye on the case, for the obvious reason that it will impact your plea advice for non-citizens clients. (Detailed analysis, at crimmigration.com)