Tuesday, July 24, 2007

Figueroa-Ocampo: the death knell for Ibarra-Galindo

For years, Federal Defenders have been railing against Ibarra-Galindo, the split Ninth Circuit decision that treated simple drug possession as an aggravated felony. We celebrated when, in the context of civil immigration proceedings, the Supreme Court in Lopez held that simple possession did not constitute an aggravated felony. As blogged here, the reasoning of Lopez resolved the question of statutory interpretation in the criminal as well as the administrative context.

In Figueroa-Ocampo, Judge Pregerson authored the opinion finally laying Ibarra-Galindo to rest. The court revisits Judge Canby’s impassioned dissent in the earlier case – “common sense rebels at the thought of classifying bare possession of a tiny amount of narcotics as a drug trafficking crime” – and the adherence to Ibarra-Galindo in the criminal context, even after the Ninth Circuit rejected that interpretation in civil immigration proceedings. Then, based on Lopez, the court holds that “it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters,” overruling Ibarra-Galindo.

The court then addressed the issue of mootness, given that the defendant had already served the unlawful term of imprisonment and begun supervised release. Because the term of supervised release can be modified based on the sentencing error, the court held that the case was not moot.

Congratulations to Jodi Denise Thorp and the San Diego FPD for bringing an era of bad law to an end.

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


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