Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (suggesting conviction for possession of paraphernalia with intent to smoke less than 30 grams of marijuana should fall within INA 237(a)(2)(B) exception to deportability).



"We find it strange that under the Luu-Le interpretation of the statute a noncitizen caught with a small article of paraphernalia used to consume a tiny quantity of marijuana could be removable, while a noncitizen actually caught with the drug, so long as it was less than 30 grams, would be in no such danger because of the express exception 1227(a)(2)(B)(i) provides for small-quantity marijuana offenses. This is not merely some abstract possibility-it may well describe this case. The IJ asked Gutnik about his conviction for possession of drug paraphernalia:



Q. And where were you arrested at that time? How was it that you were charged with possession of drug paraphernalia?



A. I was in a car with-and smoking a joint, and a police officer pulled up.



This description of the events, if true, suggests that whatever "paraphernalia" Gutnik was caught with was clearly for his personal use of less than 30 grams of marijuana. Unfortunately, the record provides no further details about the conduct behind Gutnik's paraphernalia conviction, and the Illinois statute in question, 720 ILCS 600/3.5, does not limit its application to offenders holding paraphernalia that will be used with more than 30 grams of marijuana.



What we do know is that Gutnik pled guilty to the possession of drug paraphernalia charge. Knowing this, and based on his testimony regarding his conduct, we might deduce that he agreed to plead to the lesser paraphernalia charge rather than face conviction for marijuana possession. Yet, under the Luu-Le approach to 1227(a)(2)(B)(i) urged by the government, Gutnik became deportable by pleading to the lesser crime. Had he instead taken his chances with the more serious conviction for marijuana possession, he would have faced no immigration consequences. Talk about absurd results."