Fair Sentencing Act Alters Immigration Treatment of Crack Convictions
On August, 3, 2010, President Obama signed into law the Fair Sentencing Act,
Pub. L. 111-220, which reduces the discriminatory treatment of crack and
powder cocaine under federal sentencing laws. Before the Fair Sentencing
Act became law, 21 USC 844(a) provided that a conviction for possession of
more than five grams of crack cocaine was a felony. As a felony under the
Controlled Substances Act, a conviction for more than five grams of crack
cocaine met the definition of aggravated felony under 8 USC 1101(a)(43).
See Lopez v. Gonzales, 549 U.S. 47, 59 (2006).
Section 3 of the Fair Sentencing Act amended 21 USC 844(a) by deleting the
language that made a conviction for simple possession of more than five
grams of crack cocaine a felony. Under 21 USC 844(a), as amended by the
Fair Sentencing Act, possession of any quantity of crack cocaine is now a
misdemeanor. This means that a conviction for possession of crack
cocaine can no longer be a conviction for an aggravated felony.
Arguably, a conviction for more than five grams of cocaine can no longer be
an aggravated felony regardless of the date of conviction because such a
conviction no longer fits the definition in 8 USC 1101(a)(43). See Squires
v. INS, 689 F.2d 1276 (6th Cir. 1982) (applying amended sentence maximum to
petty offense exception).
Thanks to Dan Kesselbrenner