Aggravated Felonies

(A)  State Misdemeanor First Offense Possession.  A state conviction of simple possession will generally be a safe haven if the state designates it as a misdemeanor, especially in a state in which the maximum punishment for a misdemeanor is one year or less in custody. 

            Counsel can construct a safe haven by obtaining a state court designation of the level of the offense as a misdemeanor.  This gives a favorable first factor, the state label of the offense as a misdemeanor.  In states in which the maximum for a misdemeanor is one year, it also gives a favorable second factor, since the offense would then be a misdemeanor according to the sentence under the federal definition of misdemeanor as an offense with a maximum of one year or less.  This means two out of the three factors are favorable. 

The third factor — the level of the offense if prosecuted in federal court — will also be favorable where the offense of conviction is first offense simple possession of any quantity of almost any drug, since possession offenses are only misdemeanors if prosecuted in federal court.  The only exceptions are possession of over five grams of cocaine base, or any amount of flunitrazepam (a date-rape drug), since those possession offenses are felonies under federal law even if they are first offenses.[260]  All other first-offense possession offenses, however, would be safe havens if the state court designated them as misdemeanors in jurisdictions in which the maximum sentence for a misdemeanor was one year in custody, since then all three factors would point to misdemeanor.

            The Fourth Circuit has held a state misdemeanor possession conviction cannot constitute an aggravated felony, for illegal re-entry sentencing purposes, even though the state misdemeanor was punishable by up to four years in custody.[261]

[260] 21 U.S.C. § 844.

[261] United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the misdemeanor offense was punishable by up to four years imprisonment).