Lopez v. Gonzales, 549 U.S. ___ , 127 S.Ct. 625 (Dec. 5, 2006) (South Dakota felony conviction of aiding and abetting another to possess cocaine, in violation of S.D. Codified Laws 22-42-5, 22-6-1, 22-3-3, did not constitute a "felony punishable under the Controlled Substances Act," under 18 U.S.C. 924(c)(2), and therefore did not constitute an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of removal and disqualification from eligibility for cancellation of removal, since it was not punishable as a felony under federal law).
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The impact of this decision will be felt primarily in those states in which possessory offenses are punishable as felonies under state law. See, e. g., S. D. Codified Laws 22.42.5 (2004), 22.6.1 (2005 Supp.); Tex. Health & Safety Code Ann. 481.115 (West 2003); Tex. Penal Code Ann. 12.32.12.35 (West 2003). "Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. 893.13(6)(a).(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. 453.336(1), (2) (2004), 453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. 19.03.1.23(6) (Lexis Supp. 2005), 12.1.32.01(4) (Lexis 1997) (same); Ore. Rev. Stat. 161.605(3) (2003), Act Relating to Controlled Substances, 33, 2005 Ore. Laws p. 2006 (same)." Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006).



While this decision will benefit noncitizens with state felony simple possession convictions in those circuits previously holding them to be aggravated felony convictions, including the vast majority of circuits in the illegal-reentry sentence enhancement context, it is not without its drawbacks for some noncitizen respondents. The Lopez decision will subject a noncitizen defendant to deportation if his or her conduct was punishable as a felony under the federal Controlled Substances Act. "Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an 'aggravated felony.'" Lopez v. Gonzales, 549 U.S. ___, ___ (Dec. 5, 2006) (Thomas, J. dissenting). While the argument is not precluded that in order to constitute an aggravated felony drug trafficking conviction, the state possession conviction must constitute both a felony under federal law, and be treated as a felony under state law, it appears inconsistent with the majority analysis in Lopez, and thus quite unlikely to be adopted.