Palacios-Suarez: Breakthrough on “Aggravated Felony” and Drug Possession

The Sixth Circuit has broken ranks with the other Circuits and held that a prior conviction for simple drug possession is not an "aggravated felony" and, therefore, cannot be used to enhance illegal reentry sentences based on that label. This is a major breakthrough on an issue that federal defenders have been litigating for years. The Palacios-Suarez opinion, in conjunction with this Term's decision in Leocal, is an important step toward bringing to an end a line of cases that have approved unjust over-incarceration of drug users who are not traffickers.

Illegal reentry has become one of the most frequently prosecuted federal crimes. The sentences in these cases – whether based on trial conviction, standard guilty plea, or "fast track" plea offer – often depend on the enhancements in U.S.S.G. §2L1.2(b). The "aggravated felony" enhancement incorporates the immigration definition in 8 U.S.C. § 1101(a)(43), which in turn incorporates the definition of "drug trafficking" from 18 U.S.C. § 924(c): "any felony punishable under the Controlled Substances Act." Because simple drug possession is a misdemeanor under the Act (21 U.S.C. § 844(a)), the Board of Immigration Appeals sensibly concluded that simple possession was not an aggravated felony.

But then initial Circuit cases botched the rules of statutory construction. They construed "any felony punishable" under the CSA to include a phantom "and": a felony under state law and punishable under the CSA, allowing mere possession to be a predicate "aggravated felony" if the state defined the offense as a felony. From there, the courts solidified the view that, for criminal sentencing purposes, simple possession could be an "aggravated felony" depending on state law. The BIA backed off on its position, deferring to the Circuits, which are now split with the Second and Ninth Circuits holding that simple possession can be an aggravated felony for criminal but not for immigration purposes. The Third Circuit also holds that simple possession is not an aggravated felony for immigration purposes, but has not spoken on criminal sentencing. Then came Leocal. As blogged here, the Leocal opinion, which held that driving while intoxicated is not an "aggravated felony," included a footnote stating that the definition had to be the same for criminal and non-criminal purposes.

Which finally sets the stage for German Palacios-Suarez and his intrepid advocate, Assistant Federal Public Defender Richard W. Smith-Monohan. Mr. Palacios-Suarez appealed from his illegal reentry sentence because it had been enhanced for cocaine possession, with no element of trafficking, as an "aggravated felony." In the Sixth Circuit’s opinion, which is available here, the Court directly confronted the statutory construction mess created by "a rather confusing maze of statutory cross-references."

The court began its analysis by turning to the statutory language and adopting Judge Canby’s dissent in the seminal Ninth Circuit case of Ibarra-Galindo, finding that the language did not dictate either the "hypothetical federal felony" interpretation or the "guideline approach." The court then rejected the approach of courts, including Ibarra-Galindo, that used the guideline commentary definition of "felony" because the commentary did not "have any bearing on the term ‘aggravated felony’ in subsection (b)(1)(C) of §2L1.2." The CSA definition of "felony" also, by its own terms, did not apply. The court then traced a chain of legislative history, as had the Third and Ninth Circuit cases finding that possession was not an aggravated felony for immigration purposes (Gerbier, 280 F.3d 297, and Cazarez-Gutierrez), to find that Congress did not intend that mere possessory offenses be included in the term "aggravated felony."

Judge Nelson filed a concurring opinion. While noting his caution "about rocking a boat as stable as this one seems to be," he provided a springboard for challenges in other Circuits, noting that the Circuits treating mere possession as an "aggravated felony" are inconsistent with Congress’s intent in § 924(c) and that the same statute cannot have different meanings for sentencing law and immigration purposes. As did the concurring Justices in R.L.C., Judge Nelson would place more reliance on the rule of lenity than legislative history. But as set out on pages 7-17 of the brief attached here, the plain meaning of the statute supports construction of "aggravated felony" to require an element of trafficking without resort to either legislative history or the rule of lenity.

The Palacios-Suarez opinion should spur defenders around the country to continue litigating this issue. As Bailey, Apprendi, and Blakely taught, legal precedent built on sand will crumble before persistent and principled advocacy. Congratulations to the Office of the Federal Public Defender for the Southern District of Ohio on an important win!

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon