Criminal Defense of Immigrants

 

(A)  Drug Trafficking.  A “drug trafficking” offense triggers a 16-level increase in the base offense level, regardless of whether it is an aggravated felony.  Some offenses that qualify as aggravated felony drug offenses might not independently be considered “drug trafficking” offenses in the illegal re-entry sentencing context,[258] and vice versa.[259]  A drug trafficking offense involving a counterfeit controlled substance, for example, will be considered a drug trafficking offense in the illegal re-entry sentencing context, even if it is not considered an aggravated felony.[260]

 

The BIA held for a number of years that a single state conviction for simple possession of a controlled substance would not be considered an aggravated felony for immigration purposes, although it recognized that a number of circuits held that the same offense was an aggravated felony for sentencing purposes. [261]  At that time the BIA was applying a “hypothetical federal felony” test that required a state conviction to be punishable as a felony under federal law before it could be considered an a “aggravated felony” drug trafficking offense.[262]  With the goal of creating a rule of national uniformity, the BIA applied 18 U.S.C. § 3559, which designates the various classes of felony and misdemeanor for federal purposes, and rejected the government’s suggestion to use the felony definition in 21 U.S.C. § 802(13) (defining felony as any offense designated as a felony by federal or state law), which is applied in the sentencing context.  Thus, the BIA effectively chose to ignore the individual state’s felony or misdemeanor designation of the offense.

 

A problem emerged in the search for a uniform national rule when some federal circuit courts began rejecting the hypothetical federal felony analysis in the criminal sentencing context,[263] looking instead to the treatment of the crime by the rendering jurisdiction (i.e., by applying the definition of felony in 18 U.S.C. § 802(13)), and rejecting the idea that an offense could be considered an aggravated felony for sentencing purposes, but not immigration purposes.[264]

 

Finding that uniformity was unattainable since the circuits split, the BIA held, in Matter of Yanez-Garcia[265] and Matter of Santos-Lopez,[266] that because the meaning of the phrase “drug trafficking crime” is a matter of federal criminal law, the BIA would defer to the interpretation given that statute by the federal circuit courts of appeals that have spoken on the issue.  Where the circuits had not spoken on the issue, the BIA would apply the majority circuit rule applied in the sentencing context.  However, the immigration/sentencing split continued to be recognized in the Second, Third, Sixth, and Ninth Circuits.[267]

Finally, however, the United States Supreme Court decided, in the immigration context, that the hypothetical federal felony test was correct.[268]  While the court had originally consolidated two cases, one in the immigration context and the other in the sentencing context, the court decided to dismiss certiorari in the sentencing case as improvidently granted.[269]  The logical inference is that the decision in Lopez settled the question in both contexts, and it was therefore unnecessary to decide Torres-Flores.[270]  The Court in fact specifically mentioned the illegal re-entry sentencing guidelines at least three times in its decision.[271]  This is also consistent with the Supreme Court’s statement in Leocal, indicating it was obligated to interpret a criminal statute consistently whether the issue arose in a criminal or noncriminal context.[272]  Since Lopez involved the interpretation of 18 U.S.C. § 924(c), which is clearly a criminal statute, the Supreme Court would be compelled to reach exactly the same decision in the criminal context as it did in the immigration context, and there was no need to decide Torres-Flores.  At least one circuit has explicitly found that Lopez applies in the sentencing context.[273]

[258] For illegal re-eentry sentencing purposes, a “drug trafficking offense” is defined as “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2(b)(1)(C), appl. note 1(B)(iv) (2005).  See, e.g., United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006) (California conviction for possession or purchase of cocaine base for purposes of sale, in violation of California Health & Safety Code § 11351.5, is not categorically a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) for purposes of illegal re-entry sentencing, because the California offense includes purchase for sale, which is not drug trafficking under the guidelines).

[259] See, e.g., United States v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. Jan. 12, 2006) (federal conviction for conspiracy to possess a listed chemical (ephedrine) with intent to manufacture methamphetamine, under 21 U.S.C. § 841(d)(1), held not to qualify as a “drug-trafficking offense” under U.S.S.G. § 2L1.2, for purposes of imposing a sentence enhancement to an illegal re-entry sentence, because the U.S. Sentencing Commission specifically included this offense under U.S.S.G. § 4B1.2 cmt. n.1, but declined to do so under § 2L1.2); United States v. Herrera-Roldan, 414 F.3d 1238 (10th Cir. July 13, 2005) (Texas conviction for possession of more than 50, but no more than 2000, pounds of marijuana constituted an aggravated felony “drug trafficking crime,” as defined by 18 U.S.C. § 924(c), and thus merited an 8-level adjustment under U.S.S.G. § 2L1.2(b)(1); however, the offense of simple possession (no matter what the amount) is not a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(B) (which would merit a 12-level adjustment), as there is no trafficking element to the offense).

[260] United States v. Crittenden, 372 F.3d 706, (5th Cir. 2004) (Texas U.S.S.G. case holds a simulated CS is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) (“[Th]e district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.”).

[261]  See Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999).

[262] See Matter of LG, 20 I. & N. Dec. 905 (BIA 1994).

[263] See, e.g., United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir. 1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir. 1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir. 1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir. 1994).

[264] The Fifth Circuit additionally rejected the KVD decision in the immigration context, United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S.Ct. 305 (2001), to which the BIA acquiesced.  Matter of Salazar, 23 I. & N. Dec. 223 (BIA 2002).

[265] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002) (en banc).

[266] Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (en banc).

[267] Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb 7, 2005); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (Arizona felony conviction of possession of a controlled substance, which would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court, did not constitute a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because it would not be punishable as a felony under federal drug laws and does not contain an element of commercial trafficking); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996).

[268] Lopez v. Gonzales, 549 U.S. __, 127 S.Ct. 625 (Dec. 5, 2006) (state felony simple possession is not an aggravated felony drug trafficking offense because simple possession is punished as a misdemeanor under Federal law).

[269] Toledo-Flores v. United States, 549 U.S. ___, 127 S.Ct. 638 (Dec. 5, 2006) (writ of certiorari is dismissed as improvidently granted in companion case to Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006), holding in an immigration context that a state felony conviction of possession of a controlled substance did not constitute an aggravated felony drug trafficking conviction because it would have been a misdemeanor conviction if prosecuted in federal court).

[270] It is also true that the Court had recently held in another case, Salinas v. United States, 549 U.S. 188, 126 S.Ct. 1675 (Apr. 24, 2006) (per curiam), that a conviction for simple possession of a controlled substance could not constitute a “controlled substance offense” for purposes of U.S.S.G. § 4B1.1(a) (2003), since that term requires additional elements of possession with intent to manufacture, import, export, distribute, or dispense, and therefore simple possession without these elements is insufficient under U.S.S.G. § 4B1.2(b) (career offender).  See also United States v. Villa-Lara, 451 F.3d 963 (9th Cir. May 9, 2006) (applying Salinas to U.S.S.G. § 2L1.2 cmt. n.1 (B)(iv) (illegal re-entry), which uses same definition as that at issue in Salinas).

[271] Lopez v. Gonzales, 127 S.Ct. at 628, 629 n.3, 633 (Dec. 5, 2006).

[272] Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (Nov. 9, 2004) (applying criminal rule of lenity in interpreting 18 U.S.C. 16, even though question arose in an immigration context, because “we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context . . . .”), citing United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications).

[273] Gonzalez-Gonzalez v. Weber, 472 F.3d 1198 (10th Cir. Dec. 27, 2006) (“The Court in Lopez made it clear that its holding was not limited to the immigration context, we conclude. In addressing and rejecting an argument made by the government in Lopez, the Court said that the reading of the statute the government was proposing would make federal law in ‘alien removal,’ and ‘the law of sentencing for illegal entry into the country, [under] U.S.S.G. § 2L1.2, dependent on varying state criminal classifications’ in contravention of Congressional intent. Lopez, 2006 WL 3487031 at *6.”).