Aggravated Felonies

The Federal First Offender Act[209] provides that a first conviction in federal court of simple possession of any controlled substance can be treated under the FFOA if the defendant has never before received first offender treatment under this statute.[210]  The court may place the defendant on probation for up to one year without entry of a judgment of conviction, and upon successful completion, dismiss the proceedings against the person and discharge him or her from probation.  The statute provides:

A disposition under subsection (a), or a conviction that is the subject of an expungement order under subsection (c), shall not be considered a conviction for the purpose of a disqualification or a disability imposed by law upon conviction of a crime, or for any other purpose.[211]

Congress has thus provided that a disposition under the FFOA cannot trigger any disability or be used for any purpose whatsoever.  This must be construed to mean the conviction cannot trigger adverse immigration consequences, such as deportability for an aggravated felony, under the plain meaning of the statute.  The courts must construe statutes so as to harmonize with each other.  Therefore, the definition of conviction must be construed to exclude dispositions treated successfully under the FFOA.

One circuit has disagreed with this analysis.[212]

[209] 18 U.S.C. § 3607.

[210] The literal requirements of the Federal First Offender Act are: “If a person found guilty of an offense described in section 404 of the Controlled Substances Act (21 U.S.C. 844) (1) has not, prior to the commission of such offense, been convicted of violating a Federal or State law relating to controlled substances; and (2) has not previously been the subject of a disposition under this subsection.” 18 U.S.C. § 3607(a).

[211] 18 U.S.C. § 3607(b)(last sentence).

[212] Acosta v. Ashcroft, 341 F.3d 218 (3d Cir. Aug. 15, 2003) (Pennsylvania first offender rehabilitative scheme, deferring sentencing and dismissing guilty plea, constituted a conviction for immigration purposes; court rejected Equal Protection argument that the definition of conviction for immigration purposes, INA § 101(a)(48), implicitly incorporated the Federal First Offender’s Act (FFOA), or that the FFOA exception should also be applied to state rehabilitative statutes).