Toledo-Flores v. United States, 549 U.S. ___, 127 S.Ct. 638 (Dec. 5, 2006) (writ of certiorari is dismissed as improvidently granted in companion case to Lopez v. Gonzales, 549 U.S. ___ (Dec. 5, 2006), holding in an immigration context that a state felony conviction of possession of a controlled substance did not constitute an aggravated felony drug trafficking conviction because it would have been a misdemeanor conviction if prosecuted in federal court).
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The Supreme Court granted certiorari in Torres-Flores as a companion case, presenting the same question in the illegal-reentry sentence enhancement context. The same day it decided Lopez, the court dismissed the writ of certiorari in Torres-Flores as improvidently granted. The logical inference is that the decision in Lopez settled the question in both contexts, and it was therefore unnecessary to decide Torres-Flores. This is consistent with the Supreme Court's statements in Leocal, indicating it was obligated to interpret a criminal statute consistently whether the issue arose in a criminal or noncriminal context. Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (November 9, 2004)(applying criminal rule of lenity in interpreting 18 U.S.C. 16, even though question arose in an immigration context, because "we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context . . . ."), citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications). Since Lopez involved the interpretation of 18 U.S.C. 924(c), which is clearly a criminal statute, the Supreme Court would be compelled to reach exactly the same decision in the criminal context as it did in the immigration context, and there was no need to decide Torres-Flores.