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US Supreme Court rules that not every state marijuana trafficking conviction subjects a noncitizen to automatic deportation

Adrian Moncrieffe v. Eric Holder, Attorney General, USSC 11-702, 4/23/13

United States Supreme Court decision, reversing Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. 2011)

In an important case for noncitizens charged with marijuana delivery or distribution offenses, the Supreme Court holds that a conviction for marijuana distribution under state law is not an “aggravated felony” that requires deportation if the conviction fails to establish the offense involved either remuneration or more than a “small amount” of marijuana.

Federal immigration law requires deportation of any noncitizen convicted of an “aggravated felony,” which is defined to include a felony drug trafficking conviction under the federal Controlled Substances Act or a conviction under a state law that prohibits conduct punishable as a felony under the CSA. (Slip op. at 1-3). Determining whether a state conviction is an “aggravated felony” involves a “categorical approach” that looks not to the facts of the particular conviction, but to whether the state statute defining the crime of conviction categorically fits within the “generic” federal definition of a corresponding aggravated felony. (Slip op. at 4-5). “… [T]o satisfy the categorical approach, a state drug offense must meet two conditions: It must ‘necessarily’ proscribe conduct that is an offense under the CSA, and the CSA must ‘necessarily’ prescribe felony punishment for that conduct.” (Slip op. at 6).

Moncrieffe was convicted in Georgia of possession of 1.3 grams with intent to distribute. There is no question that it is a federal crime to possess marijuana with intent to distribute, thus satisfying the first condition. But that is not enough, “because the generically defined federal crime is ‘any felony punishable under the Controlled Substances Act,’ 18 U. S. C. §924(c)(2), not just any ‘offense under the CSA.’ Thus we must look to what punishment the CSA imposes for this offense.” (Slip op. at 7).

Ordinarily, a conviction involving less than 50 kilograms of marijuana is a felony under the CSA. But there’s an exception: Distribution of a “small amount” of marijuana for “no remuneration” is a misdemeanor. (Slip op. at 8). “These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, and one not.” (Slip op. at 8-9). The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA is to know whether the conditions that make the offense a misdemeanor are present or absent. (Slip op. at 9). Applying that test to Moncreieffe:

A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that [the misdemeanor exception] is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA …. In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, … and that “distribution” does not require remuneration, … So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony. (Slip op. at 9  (citations omitted)).

….

In other words, not only must the state offense of conviction meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well. (Slip op. at 10).

The focus, then, is on whether “the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony.” (Slip op. at 12). This should aid some noncitizens convicted under Wisconsin law–namely, those convicted under Wis. Stat. § 961.41(1)(h)1. or (1m)(h)1., which cover distribution or delivery (or possession with intent to distribute or deliver) of less than 200 grams. Surprisingly, the CSA doesn’t define the “small amount” that makes an offense a misdemeanor; the Bureau of Immigration Appeals uses 30 grams as a “guidepost,” but the Court does not decide the cutoff itself. (Slip op. at 8 n.7).  Presumably, a conviction for anything less than 200 grams doesn’t necessarily mean that more than 30 grams was involved. Nor does it establish remuneration, as distribution or delivery do not require the exchange of money. Wis. Stat. § 961.01(6) and (9).

But note well the limits of this opinion:

Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. … Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. (Slip op. at 19 (emphasis added)).

So read this opinion carefully if you are representing a noncitizen marijuana offender, and be aware of its narrow application.

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