Safe Havens

(H)  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, if no imprisonment is allowed under state law.

The Ninth Circuit considered the question in United States v. Robles-Rodriguez,[196] 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,”[197] 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.”[198] 

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.[199] 

Consequently, offenses that lack a “trafficking” element and fall within a state sentencing scheme authorizing only probation, or incarceration of one year or less in the sentencing guideline context, 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.[200]  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.

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

[197] 21 U.S.C. § 802(13)

[198] 21 U.S.C. § 802(44).

[199] 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).

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