Safe Havens

(C)  Different Rules for Criminal vs. Immigration Cases.  To complicate matters further, some circuits use one definition for illegal re-entry criminal sentencing cases, and another definition for immigration law decisions such as whether a conviction triggers a ground of deportation.

            The Ninth Circuit has recently addressed the definition of “felony” in the federal drug trafficking context with respect to convictions under state schemes sentencing nonviolent persons convicted of drug possession offenses to probation and participation in drug treatment programs, rather than incarceration.  In United States v. Robles-Rodriguez,[119] 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 consequently do not qualify as “felonies” under federal law, even if technically labeled as felonies by the state court, because they are no longer felonies “in substance” under the federal definition.[120]

On the other hand, if the conviction can be described as a felony, and a sentence greater than one year can be imposed in the event of a probation violation, the conviction will be considered a “felony” and therefore an aggravated felony, even though state law may prohibit imposition of any custody in the first instance.[121]

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

[120] 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, rather than the label of the offense. United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[121] United States v. Arellano-Torres, 303 F.3d 1173 (9th Cir. Sept. 18, 2002) (prior state conviction for simple drug possession qualified as “aggravated felony” for enhancement purposes, even though same offense would be misdemeanor under federal law and even though state law mandated probation for first-time offenders such as defendant); United States v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. Nov. 14, 2002) (Texas conviction of possession of marijuana, in violation of Health & Safety Code § 481.121(b)(3) (1995), which was a “state jail felony” with a maximum of two years, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing a sentence for illegal re-entry under U.S.S.G. § 2L1.2(b)(1)(C), even though state law precluded a custodial sentence for the defendant as a first-time offender, since he could be sentenced to two years on a violation of community supervision).