Tuesday, December 05, 2006

Lopez: the Supreme Court reverses Ninth Circuit law on possession as an aggravated felony

The Supreme Court issued an 8-1 decision today authored by Justice Souter holding that state convictions for simple drug possession, whether felony or misdemeanor, do not constitute an "aggravated felony" under the immigration statutes and, therefore, the federal sentencing guidelines. In Lopez, the Court found that the statutory incorporation of section 924(c)'s definition of drug trafficking crime foreclosed application to simple drug possession, which is a misdemeanor under federal law. The Court's reasoning depended on the plain meaning of the statute.

The Ninth Circuit law stems from a split decision in Ibarra-Galindo in which, with Judge Canby dissenting, the court found that felony state convictions for simple possession were included as drug trafficking crimes for the purposes of determining whether an illegal reentry sentence should be enhanced for conviction of an "aggravated felony" under immigration law. The Ninth Circuit then found that, in the immigration context, simple possession is not an "aggravated felony" in Cazarez-Gutierrez. Then, in Leocal in footnote 8, the Supreme Court said that the definition of "crime of violence" under the immigration statute on "aggravated felony" had to have the same meaning in both sentencing and immigration contexts (as blogged here).

Lopez is an immigration case but the case resolves the sentencing construction, both in the text of the opinion and by its mode of analysis. Although the Court dismissed as improvidently granted the companion criminal case, the Court stated that the purpose of granting certiorari was to resolve Circuit conflicts "about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the [Controlled Substances Act]." Then, in footnote 3, the Court included Ibarra-Galinda as well as a recent Sixth Circuit criminal case (blogged here) rejecting the Ibarra-Galindo position.

Under the Ninth Circuit opinion in Miller v. Gammie, intevening Supreme Court authority that undermines the reasoning or mode of analysis of prior cases renders them devoid of precedential value. The Lopez Court's plain meaning analysis supersedes the construction in Ibarra-Galindo. The Court expressly refers to the sentencing consequences of the statutory interpretation on page 2 of the opinion. And on page 10, the Court finds support for the plain meaning analysis in the interests in uniformity in both immigration and sentencing contexts: "Finally, the Government's reading would render the law of alien removal, . . . and the law of sentencing for illegal entry into the country, . . . dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose."

We need to be sure to immediately review our cases for clients who are being disadvantaged based on simple possession convictions. We also need to review files for clients who are actually innocent of sentence enhancements and bring collateral actions for relief. Remember that, under Bousley and other Supreme Court precedent, the statute has always meant what the Supreme Court construed, so there should not be retroactivity issues.

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


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