Criminal Defense of Immigrants

(A)  State Misdemeanor First Offense Possession.  A state conviction of simple possession will generally not be considered an aggravated felony if the state designates it as a misdemeanor, especially in a state in which the maximum punishment for a misdemeanor is one year or less in custody. 

                (1)  Analysis.  First, such a plea is labeled by the state as a misdemeanor, therefore resulting in a favorable first factor in determining whether the offense should be considered a “felony” for immigration purposes.[560]  In the illegal re-entry sentencing context, the Fourth Circuit has held a state “misdemeanor” possession conviction cannot constitute an aggravated felony, even though the state misdemeanor was punishable by up to four years in custody.[561]

Second, in states in which the maximum for a misdemeanor is one year, this plea also results in a favorable second factor, since the offense would then be a misdemeanor as defined for purposes of federal,[562] as well as state law.

The third factor — the level of the offense if prosecuted in federal court — will also be favorable where the offense of conviction is first offense simple possession of any quantity of almost any drug, since possession offenses are only misdemeanors if prosecuted in federal court. 

(2)  Exceptions.  The only exceptions are possession of over five grams of cocaine base, or any amount of flunitrazepam (a date-rape drug), since those possession offenses are felonies under federal law even if they are first offenses.[563] 

[560] See § 19.57, supra.

[561] United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the misdemeanor offense was punishable by up to four years imprisonment).

[562] See 18 U.S.C. § 3559.

[563] 21 U.S.C. § 844.