Criminal Defense of Immigrants

 

(C)  Second Offense Simple Possession.  The courts to address this issue early, generally found that a second state simple possession offense was an aggravated felony drug trafficking offense, [595] since federal law can treat a second simple-possession as a felony. [596]  However, after the circuit courts and the BIA retreated from the “hypothetical federal felony” approach,[597] it was generally found that a second state simple possession misdemeanor offenses would not be an aggravated felony, because the state did not designate the offense to be a felony.[598]  The Second Circuit, which continued to follow the hypothetical federal felony approach, continued to consider a second possession offense to be an aggravated felony.[599]

                In light of the Supreme Court’s decision in Lopez,[600] which in essence endorsed the hypothetical federal felony approach, the courts may again choose to consider certain second simple possession offenses to be an aggravated felony “drug trafficking” crime, even if the offense is only a misdemeanor under state law.  Counsel can argue, however, that Lopez is not dispositive of this issue, since: (1) this issue was not before the court;[601] (2) while Lopez involved the question of whether a certain disposition constituted a conviction, the effect of a prior conviction concerns the question of whether a sentence had been imposed for an offense or for a sentence enhancement;[602] and (3) a sentence enhancement does not constitute part of the criminal offense of which the defendant was convicted, and so cannot alter the essential elements of the offense of conviction for the purpose of determining whether a conviction constitutes a deportable offense.[603] 

 

The Supreme Court in Lopez v. Gonzales mentioned, in a footnote, that in federal court, a second conviction of simple possession might be prosecuted as a felony, and thereby be considered an aggravated felony. [604]  There are a number of arguments, however, why a second conviction of possession of a controlled substance ought not be considered an aggravated felony drug trafficking conviction.[605]  These include (1) the second or later conviction of possession of a controlled substance does not constitute a felony, under federal law, unless the prior conviction was final at the time the second offense was committed;[606] (2) the second or later conviction of possession of a controlled substance cannot constitute a felony, under federal law, unless the fact, finality, and validity of the prior conviction was pleaded and proven in the later case;[607] (3) under federal law, a second possession conviction is not automatically a felony; the prosecutor has discretion to charge, or not to charge, it as such.  It would be improper to assume that merely because the second conviction could be charged as a felony, that the federal prosecutor would in fact do so, especially since this is very rarely done.

 

                The Ninth Circuit had previously held that a recidivist sentence enhancement should never be used to determine whether an offense triggers removal.[608]  In the simple possession context, the Ninth Circuit therefore held that a state second possession conviction would not be considered an aggravated felony, since the offense would only be a misdemeanor but for the recidivist sentence enhancement.[609]  Thus far, this rule has only been applied in the Ninth Circuit.  However, there is favorable Board of Immigration Appeals authority on the general question of the irrelevance of sentence enhancements in determining whether a conviction falls within a ground of deportation.[610]  This argument can therefore be made in immigration court and in other circuits as well. 

 

                Additionally, for a subsequent simple possession offense to become a felony under federal law, the existence of the prior conviction must be proven beyond a reasonable doubt in a prosecution for the subsequent offense, and the defendant must be allowed to challenge the fact, finality, and validity of the prior conviction.[611]  Therefore, a number of courts have held that a subsequent state conviction for simple possession cannot be considered to be a “hypothetical federal felony” unless the state court of conviction likewise found beyond a reasonable doubt the existence of the prior conviction, and allowed the defendant to challenge the validity of the prior conviction.[612]  Other courts have not required such a finding, at least in the sentencing context.[613]    

                Finally, the text of 18 U.S.C. § 844(a) requires that a prior conviction for simple possession must be final[614] in order to be used in charging a subsequent offense as a felony.  Therefore, court have found that prior simple possession convictions could not be used to make a subsequent offense in to an aggravated felony if the subsequent offense was committed while the first offense was pending in criminal court[615] or on appeal.[616]  The same argument should apply where the defendant was convicted of two possessory offenses in a single criminal proceeding.[617]

[595] See e.g., Amaral v. INS, 977 F.2d 33 (1st Cir. Oct. 13, 1992); United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. Jan. 13, 1998).

[596] 21 U.S.C. § 844(a).

[597] See Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).

[598] Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) (en banc) (New York second misdemeanor conviction of possession of marijuana in the fifth degree, in violation of New York Penal Law § 221.10, did not constitute a drug trafficking crime, under 18 U.S.C. § 924(c)(2) (2000), under the Second Circuit test of United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), since state law held these convictions were misdemeanors with a maximum of three months in custody, and conviction was therefore not a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes); Matter of Santos-Lopez, 23 I. & N. Dec. 419 (BIA 2002) (Texas first and second conviction for possession of marijuana, both classified as misdemeanors under Texas law, are not considered felonies within the meaning of 18 U.S.C. § 924(c)(2) or an “aggravated felony” within the meaning of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (2000)), following United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.), cert. denied, 122 S.Ct. 305 (2001), and United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997).

[599] Durant v. ICE, 393 F.3d 113 (2d Cir. Dec. 16, 2004) (second conviction for possession of cocaine is an aggravated felony drug offense, since a second possession conviction is a felony under federal law); United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (second misdemeanor simple possession conviction under New York law is an aggravated felony since the offense would be a felony under federal law).  See also Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York misdemeanor conviction of Criminal Sale of Marijuana in the Fourth Degree, in violation of New York Penal Law § 221.40, constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), under the common-sense definition of illicit trafficking, since the defendant was convicted of acting as a businessman or merchant in connection with the trading, selling or dealing in controlled substances).

[600] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 630 n.6 (Dec. 5, 2006) (“Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession . . . clearly fall within the definitions used by Congress . . . regardless of whether these federal possession felonies or their state counterparts constitute ‘illicit trafficking in a controlled substance’ or ‘drug trafficking’ as those terms are used in ordinary speech.”).

[601] The law is well-settled that an issue not raised, briefed, or argued has not been decided by the court.  R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2545 (1992) [“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”]; United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 113 S.Ct. 1611; United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[602] These are different questions, interpreting different statutes.  “Conviction” is defined in INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A), whereas “sentence” is defined in INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B).

[603] Montiel-Barraza v. INS, 275 F. 3d 1178 (9th Cir. 2002).  See also Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998) (concluding that a penalty provision that simply authorizes a court to increase the sentence for recidivism does not define a separate crime); United States v. Portillo-Mendoza, 273 F.3d 1224 (9th Cir. 2001); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (New York enhancement statute applied to defendant due to previous drunk driving convictions did not convert drunk driving offense into a crime of violence); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (same); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); Matter of Rodriguez-Cortez, 20 I. & N. Dec. 587 (BIA 1992) (firearms enhancement did not convert non-firearms offense into a firearms offense); but see Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001).

[604] Lopez v. Gonzales, 549 U.S. __, 127 S.Ct. 625, 630 n.6 (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).

[605] See generally New York State Defenders Association, Practice Advisory: Removal Defense of Immigrants in Drug Possession Cases – the Impact of Lopez v. Gonzales, http://www.nysda.org/idp/docs/07_PostLopezAdvisoryforRemovalDefense41207.pdf.  This practice advisory offers many arguments useful in any circuit, not merely the Ninth Circuit.

[606] See 21 U.S.C. § 844(a).  For example, the second offense cannot be prosecuted as a felony in federal court if the second offense is committed while the prior drug case is still pending in criminal court.  United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. 2005).  The same holds true if the second offense is committed while the prior conviction is on appeal, or if a timely appeal could still be filed from that conviction.  See Smith v. Gonzales, 468 F.3d 272 (5th Cir. 2006).  The same would hold true if the pleas to both earlier and later offenses were entered at the same time.

[607] See 21 U.S.C. § 851; see also Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001).  But see United States v. Simpson, 319 F.3d 81 (2d Cir. 2002) (pre-Lopez decision finding second state possession convictions to be aggravated felonies, for criminal sentencing purposes, without consideration of the notice and proof requirements for 21 U.S.C. § 844(a) recidivism convictions); United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005) (same).

[608] United States v. Corona-Sanchez, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (petty theft with a prior, in violation of California Penal Code § 666 must be treated as a petty theft conviction, punishable by a maximum of six months, for immigration purposes).  See also United States v. Sanchez-Sanchez, 333 F.3d 1065 (9th Cir. June 26, 2003) (Arizona conviction for shoplifting, in violation of Ariz. Rev. Stat. § 13-805(I), is not an aggravated felony since the felony sentence is possible only because of a prior-conviction-based sentence enhancement, as opposed to a sentence for the offense itself); United States v. Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).

[609] United States v. Ballesteros-Ruiz, 319 F.3d 1101 (9th Cir. Feb. 10, 2003); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sept. 9, 2004) (under federal law, a second possession conviction is not made a “felony” for this purpose by virtue of a recidivist sentence enhancement; court noted that contrary case, United States v. Garcia-Olmedo, had been overruled by en banc decision United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)).

[610] Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA Oct. 19, 1992) (conviction of five counts of attempted murder in the second degree, where sentence under one count was enhanced pursuant to California Penal Code § 12022(a) because a codefendant was armed with a firearm in the attempted commission of the felony, is not a conviction of a firearm offense under California law and does not trigger deportation under INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C), as a noncitizen convicted at any time after entry of a firearm violation).

[611] 21 U.S.C. § 851.

[612] Berhe v. Gonzales, 464 F.3d 74 (1st Cir. Sept. 26, 2006) (Massachusetts 1996 conviction of misdemeanor simple possession of crack cocaine under Mass. Gen. Laws ch. 94C, § 34, and Massachusetts 2003 misdemeanor conviction of simple possession of crack cocaine, were not aggravated felony drug trafficking convictions under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because the prosecution, in the second case, did not plead and prove the prior possession conviction, and the record of conviction in the second case does not contain facts that would convert it from a misdemeanor to a felony conviction if it had been prosecuted in federal court); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (“While the status of being a ‘one time loser’ is not technically an element of the offense proscribed by § 844, we agree . . . that it should be treated as such.”).

[613] United States v. Simpson, 319 F.3d 81 (2d Cir. 2002); United States v. Sanchez-Villalobos, 412 F.3d 572 (5th Cir. 2005).

[614] See § 7.37, supra.

[615] United States v. Palacios-Suarez, 418 F.3d 692 (6th Cir. Jul. 22, 2005) (second state misdemeanor drug possession conviction was not a “hypothetical federal felony” for aggravated felony purposes, based upon recidivist provision of Controlled Substance Act, because the second offense occurred before the first drug possession conviction became final).

[616] Smith v. Gonzales, 468 F.3d 272 (5th Cir. Oct. 24, 2006) (second state misdemeanor conviction for possession of marijuana did not qualify as an “aggravated felony” for immigration purposes because second possession only becomes a felony under federal law upon conviction of a second offense after conviction of a prior simple possession; in this case, there was no effective prior conviction under 21 U.S.C. § 844(a) because the first conviction was not yet final).

[617] See § 21.19, infra.