(C)  Offenses for Which No Incarceration May Be Imposed Do Not Constitute Felonies.  In recent years, voters in some states have enacted ballot measures requiring courts to sentence nonviolent persons convicted of drug possession offenses to probation and drug treatment programs, rather than incarceration.  Because incarceration is not permitted under these schemes, the question arises whether these offenses can be considered felonies, and therefore aggravated felonies, since no imprisonment is allowed under state law.

           

The Ninth Circuit considered the question in United States v. Robles-Rodriguez,[303] when it asked whether a first or second conviction for drug possession under Arizona Proposition 200 constitutes an aggravated felony in the criminal context of illegal re-entry sentencing where incarceration was not authorized.  Holding that it did not, the court focused on the federal definition of “felony.”  The government asserted that an offense is a felony under the Controlled Substances Act, which defines “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony,”[304] whenever the convicting jurisdiction labels it as such.  On the other hand, the court noted that the federal law also defined a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[305] 

Reading both definitions together, and noting the long history of interpretation by the federal courts, the court held that the word “felony” describes offenses punishable by more than one year’s imprisonment under either state or federal law.  Offenses punishable only by probation — rather than incarceration — under these state sentencing schemes thus do not qualify as “felonies” under federal law, even if technically labeled as felonies by the state court, because they may not be punished by a sentence in excess of one year in custody.[306] 

 

Consequently, offenses that lack a “trafficking” element and fall within a state sentencing scheme authorizing only probation, or incarceration of one year or less, will not be aggravated felonies, at least in the Ninth Circuit. 

 

The law at issue in Robles-Rodriguez was Arizona Proposition 200, which does not allow for incarceration of more than one year for crimes of drug possession, whether the first or second offense.  California’s Proposition 36 requires that a first or second conviction for simple possession, use or under the influence, and transportation for personal use of a drug must under certain circumstances be treated with drug counseling and rehabilitation, rather than jail.[307]  The California statute excludes convictions for possession for sale, production, or manufacturing of any controlled substance.  Criminal defense counsel should not assume that the California proposition merits the same treatment as the Arizona law, since it is possible under some circumstances for a California defendant falling within this law to be sentenced to state prison.  Immigration counsel may argue the California statute is sufficiently similar to the Arizona statute to merit the same treatment.

 

Other state statutes must be closely examined to determine whether the offense falls within the bounds of Robles-Rodriguez and whether the defendant is otherwise eligible for treatment under the state provisions.  If so, and only probation is authorized, the conviction will not be an aggravated felony, at least in the Ninth Circuit.

 

[303] United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[304] 21 U.S.C. § 802(13).

[305] 21 U.S.C. § 802(44).

[306] Central to this conclusion was the court’s view that deference should be accorded to the state’s decision to punish drug offenders less severely than would the federal government, and that the punishment authorized for the offense is a more accurate indicator of the seriousness of the crime than is the label of the offense.  United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[307] Cal. Penal Code § 1210.1(a) (“A court may not impose incarceration as an additional condition of probation.”).

BIA

AGGRAVATED FELONY"CONTROLLED SUBSTANCES"DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA WITHOUT REMUNERATION
Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (noncitizen bears burden to establish state conviction of intent to distribute involved a "small amount of marihuana for no remuneration within the meaning of 21 U.S.C. 841(b)(4), which the noncitizen may establish by presenting evidence outside of the record of conviction), Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun. 20, 2008) (Massachusetts conviction of possession with intent to distribute a Class D substance (marijuana), in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of the aggravated felony disqualification from eligibility for cancellation of removal for LPRs, rejecting the argument that the offense would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun.20, 2008) (burden is on the noncitizen/defendant to show that a state conviction for distribution of marijuana would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law; court leaves open the question of whether the noncitizen must meet burden only through criminal documents or can introduce additional evidence before the IJ), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003)

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted an aggravated felony drug trafficking conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

Second Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING- GRATUITOUS DISTRIBUTION OF A SMALL AMOUNT OF MARIHUANA
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " DISTRIBUTION OF MARIJUANA
Catwell v. Attorney General, 623 F.3d 199 (3d Cir. Oct. 13, 2010) (Pennsylvania conviction of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), involved 120.5 grams, which was more than a small amount, so the BIA correctly concluded that the conviction constituted a drug trafficking aggravated felony, disqualifying petitioner from eligibility for cancellation of removal).

AGGRAVATED FELONY - DRUG TRAFFICKING - DRUG POSSESSION AND LESSER OFFENSES - DISTRIBUTION OF A SMALL AMOUNT OF MARIJUANA
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

NOTE: the BIA, in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), disagreed, finding that the "gratuitous distribution of a small amount of marijuana" statute was an affirmative defense, which the defendant must prove. Counsel can argue that, in the case of a state conviction, there is no such statutory exception and defense counsel in state court would have had no reason to submit proof that only a small amount was involved. Therefore, to require that this extra showing have been made before the state court is unreasonable. Thanks to Jonathan Moore.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Jeune v. Attorney Gen. of the U.S., 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction for violation of 35 Pa. Cons. Stat. Ann. 780-113(a)(30), manufacture, delivery, or possession with intent to manufacture or deliver, of a controlled substance, is not categorically an "aggravated felony" drug trafficking crime because the offense may be committed for personal use, and is not necessarily an offense punishable as a felony under federal law, since the offense may be violated by distribution of a small amount of marijuana without remuneration, which is treated a misdemeanor under 21 U.S.C. 841(a)(1)), following Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006) (conviction of violating 35 Pa. Cons.Stat.Ann. 780-113(a)(30) is not categorically an aggravated felony, since not every violation of the manufacturing provision involves trading or dealing, as there may be circumstances in which a defendant simply manufactured drugs for his own personal use).

Fifth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING " CERT GRANTED
Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. Nov. 8, 2011), cert. granted, No. 11-702 (Apr. 2, 2012). Note: The Supreme Court will decide whether a state conviction under a state statute that includes distribution of a small amount of marijuana without remuneration is a drug trafficking aggravated felony, even where the record of conviction does not establish that the noncitizen was convicted of an offense that would constitute a federal felony.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. Jun. 4, 2008) (California conviction of sale of tar heroin, in violation of Health & Safety Code 11352, constituted a drug trafficking aggravated felony for illegal re-entry sentencing purposes; although misdemeanor possessory offense is not an aggravated felony by itself, because the conviction was a misdemeanor, defendants prior drug conviction made the conviction a felony under the hypothetical federal prosecution analysis; court did not address argument that prior must be proven in subsequent conviction), following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005) (second state conviction of possession of a controlled substance constituted an aggravated felony, triggering an eight-level enhancement of an illegal reentry sentence, because it "could have been punished under [21 U.S.C.] 844(a) as a felony with a penalty of up to two years imprisonment).

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO DELIVER
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (Michigan conviction attempted possession of marijuana with the intent to deliver [actual, constructive, or attempted transfer from 1 person to another] less than five kilograms, in violation of Mich. Comp. Laws 333.7401(2)(d)(iii), constituted a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though no commercial element was required to constitute the offense, because the federal Controlled Substances Act similarly prohibits a person from possess[ing] with intent to ... distribute ... a controlled substance, 21 U.S.C. 841(a)(1), as a felony, rejecting the argument that government must negate the misdemeanor exception under which gratuitous distribution of a small amount of marijuana constitutes only a misdemeanor under 21 U.S.C. 841(b)(4) since the small amount exception is not an element of the offense); see United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (the amount of marijuana involved need not be proven to the jury in order to convict under 841(a) or punish under 841(b)(1)(D)); United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that 841(b)(1)(D) is the default provision for possessing an undetermined amount of marijuana with the intent to distribute the drug); following Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); contra, Martinez v. Mukasey, 551 F.3d 113, 120 (2d Cir. 2008) ([W]e look no further than to the fact that Martinez's conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. 841(b)(4).); Jeune v. Attorney Gen., 476 F.3d 199, 205 (3d Cir. 2007) (the least culpable conduct involved a small amount of marijuana and no remunerative exchange, Jeune's state offense was deemed punishable under the misdemeanor provision of 21 U.S.C. 841(b)(4) and therefore not an aggravated felony).

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SECOND FELONY
Rashid v. Mukasey, 531 F.3d 438 (6th Cir. Jun. 26, 2008) (Michigan conviction of possession of a controlled substance, where the defendant has a prior conviction for the same offense, is not an aggravated felon under INA 101(a)(43)(B) for immigration purposes; "The first and only hypothetical that should be considered under the hypothetical federal felony approach is whether the crime that an individual was actually convicted of would be a felony under federal law. See Steele, 236 F.3d at 138 (explaining that the aggravated felony disability under the [INA] applies only if there has been a conviction of a felony). But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical. We conclude that inclusion of the word hypothetical in the hypothetical federal felony approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.").

Other

ARGUMENT " AGGRAVATED FELONY " GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Counsel can argue that the Board of Immigration Appeals holding in Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008), that where a noncitizen was convicted under state law of distribution of marijuana, the offense would be considered an aggravated felony unless the respondent could prove to the Immigration Court that the offense did fall within 21 U.S.C. 841(b)(4) (gratuitous distribution of small amount of marijuana constituted no more than a misdemeanor under federal controlled substances acts), is in error, since the reasoning of Matter of Aruna has been overruled by the United States Supreme Court in Carachuri-Rosendo v. Holder, __ U.S. __, 130 S.Ct. 2577 (2010), which rejected the hypothetical federal felony reasoning on which Matter of Aruna was based.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION WITH SOLICITATION PRIOR
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.