Re: Possessed

United States v. Ayon-Robles, No. 07-0785-cr (2d Cir. February 24, 2009) (Jacobs, Wesley, CJJ, Arcara, DJ) (per curiam)

Recently, in an immigration case, Alsol v. Mukasey, 548 N.Y.S.2d 207 (2d Cir. 2009), the court held that a second state-court conviction for simple drug possession was not an “aggravated felony” under the relevant immigration statute, 8 U.S.C. § 1101(a)(43), because it did not satisfy the statutory definition of “drug trafficking crime[].” See Simply Possession, posted 11/29/08.

The court’s decisions in this area have been confusing, however. The illegal reentry guideline, U.S.S.G. § 2L1.2, incorporates the same statutory definition, but the court has in some cases suggested that it might interpret that provision differently in the sentencing context. This case appears to have put that confusion to rest. Here, the court held that since the guideline specifies that the term “aggravated felony” has the “meaning given that term in [8 U.S.C. 1101(a)(43)],” Alsol’s interpretation of the term “aggravated felony” under the immigration statute controls the interpretation of that term under the guidelines.

Simply Possession

Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)

This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases.

Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance. The immigration courts, relying on the circuit’s decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), held that the second simple possession misdemeanor was a “drug trafficking crime,” and hence an aggravated felony, because such an offense could have been prosecuted as a felony under federal law. The immigration consequences were profound, as each defendant was denied “cancellation of removal,” the only available relief from deportation.

The circuit disagreed, however, and granted the two petitioners relief. The relevant immigration statute, 8 U.S.C. § 1101(a)(43), includes as an aggravated felony any “drug trafficking crime,” a phrase that includes any “felony punishable under” the Controlled Substances Act, 21 U.S.C. § 801 et seq. (the “CSA”). Under the CSA, simple possession of controlled substance, generally, is a misdemeanor. However, if a person commits simple possession of a controlled substance after a prior conviction for any drug offense, he can be exposed to a felony under the CSA if the government invokes, and the court complies with, the notice procedures set out in 21 U.S.C. § 851.

But that a second state controlled substance misdemeanor could be prosecuted as a felony in federal court under the CSA is not enough. The question is not whether the state conduct could have been charged and punished as a federal felony; rather, only a “state offense of conviction that is [itself] punishable as federal felony is an aggravated felony.” Under the “categorical approach,” the inquiry is limited to the elements and nature of the state offense, and not the particular facts underlying it. Accordingly, the “fact of recidivism must be reflected in the conviction the government seeks to classify as an aggravated felony, not merely in petitioner’s underlying conduct.” Where an alien has been convicted of simple possession of a controlled substance and did not either admit his status as a recidivist or have it determined by a court or jury within the prosecution for the second offense, there is no conviction for an aggravated felony.

The court went on to make clear that the contrary language in Simpson was dictum; it was “not necessary to the analysis” or holding of that case.