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9th Circuit In Cazarez-Gutierrez v Ashcroft Holds Felony Simple Possession Of A Controlled Substance Is Not An Aggravated Felony

by Kathy Brady

An offense that does not involve drug trafficking, such as simply possessing a controlled substance, can be an aggravated felony under the drug trafficking category, as long as it is analogous to a federal offense and a "felony" under some standard.[1] What the felony standard is has been the subject of much litigation and changing of rules. Does it depend on whether the state that imposes the conviction classifies it as a felony (the "law of the convicting jurisdiction")? Or should there be a uniform federal rule, so that the standard is whether the state offense would have been classed as a felony if the case had been brought in federal court (the "hypothetical federal prosecution")?

In January 2004 the Ninth Circuit overturned a BIA decision, which itself had overturned law existing up to 2002, to hold that the "hypothetical federal prosecution" standard will govern in immigration proceedings under its jurisdiction. It joined the Second and Third Circuits and disagreed with the Fifth Circuit on this issue. [2] Cazarez-Gutierrez v Ashcroft, __F.3d__ (9th Cir. 2004), overruling Matter of Yanez-Garcia 23 I&N 390 (BIA 2002). Whereas the BIA had held that a state felony conviction for simple possession is an aggravated felony, but one or more misdemeanor possession is not, the new Cazarez-Gutierrez opinion, read in combination with other Ninth Circuit precedent, holds that no simple possession conviction is an aggravated felony in immigration proceedings.

In contrast, for purposes of the federal sentence enhancement based on conviction of an aggravated felony prior to an illegal re-entry, the "convicting jurisdiction" rule applies and a state felony conviction for simple possession is an aggravated felony.

This article will first set out the basic rules and provide fact examples. Next it will discuss the cases and legal rationale.


Warning. At this writing petition deadlines have not run and it is still possible that Cazarez-Gutierrez could be re-heard en banc or appealed to the Supreme Court. Until that is resolved, criminal defense counsel should where possible act conservatively and avoid a felony conviction for simple possession, by postponing a plea or pleading to an alternate offense. Even with the Cazarez-Gutierrez ruling, a state felony simple possession conviction has serious legal liabilities. It is an aggravated felony for purposes of federal prosecution for illegal re-entry, and it will be held an aggravated felony in immigration proceedings outside the Second, Third and Ninth Circuits.


Current rules
The following is the standard regarding when a conviction for simple possession of a controlled substance is an aggravated felony in immigration and federal criminal proceedings in the Ninth Circuit under Cazarez-Gutierrez and other precedent.

  1. No state simple possession offense, whether first or second, felony or misdemeanor, is an aggravated felony in immigration proceedings under the jurisdiction of the Ninth Circuit. The only exception is if the substance possessed was more than five grams of cocaine base (crack) or any amount of flunitrazepam (a date-rape drug). In that case a state felony or misdemeanor conviction is an aggravated felony.
  2. Federal prosecutions for illegal re-entry carry a harsh sentence enhancement for a prior conviction of an aggravated felony under 8 USC 1326(b)(2). There a state felony conviction for simple possession is an aggravated felony, but one or more state misdemeanor convictions are not. Felony is defined as an offense carrying a potential sentence of more than a year. The exception is that even a state misdemeanor conviction for more than five grams of cocaine base or any amount of flunitrazepam is an aggravated felony.
  3. The very first state conviction for simple possession of a drug, whether felony or misdemeanor, and including cocaine base or flunitrazepam, can be eliminated for immigration purposes by "rehabilitative relief" such as, in California, withdrawal of plea under deferred entry of judgment, Proposition 36, or P.C. 1203.4.

Illustrative examples
These examples illustrate the rules under Cazarez-Gutierrez, and assumes that the immigration proceedings described take place within the Ninth Circuit.
  • Sam is convicted of simple possession of heroin in state court, a felony offense carrying a potential sentence of more than a year. This is not an aggravated felony under Cazarez-Gutierrez, so the conviction will not bar Sam from applying for cancellation of removal for permanent residents or for asylum. However this is an aggravated felony for purposes of a federal prosecution for illegal re-entry into the U.S. after removal and conviction of an aggravated felony. If it was a very first offense of simple possession, Sam could eliminate it by "rehabilitative relief" such as, for a California offense, withdrawing the plea under a deferred entry of judgment, Proposition 36 or P.C. 1203.4 expungement.
  • Sam receives a second California felony conviction for simple possession of heroin. Under Cazarez-Gutierrez combined with other Ninth Circuit precedent this conviction is not an aggravated felony for immigration purposes, but it is in a federal prosecution for illegal re-entry. And because it is the second conviction, it will not be eliminated by "rehabilitative relief."
  • Steve is convicted of a state misdemeanor offense simple possession of amphetamines. This is not an aggravated felony in a federal prosecution for illegal re-entry (because the offense is not a felony by analogy to federal law, or under the law of the actual convicting jurisdiction) or for immigration purposes. If it is his first-ever drug conviction it can be eliminated by "rehabilitative relief."
  • Lani is convicted of simple possession of more than 5 grams of crack cocaine in state court. Because this would be prosecuted as a felony in federal court, it is an aggravated felony for immigration purposes regardless of how the state characterizes it. It also is an aggravated felony in federal prosecution for illegal re-entry. If it was a very first conviction of simple possession, Lani can eliminate it for all purposes by "rehabilitative relief."

Discussion
The current rule for immigration proceedings arising within the jurisdiction of the Ninth Circuit is set out in Cazarez-Gutierrez. There the Court overruled the BIA to hold that the hypothetical federal prosecution rule determines whether a state offense such as simple possession is a "felony" and therefore an aggravated felony in immigration proceedings. Because federal simple possession is a misdemeanor,[3] a state conviction for simple possession is not an aggravated felony, regardless of whether the state designates the offense as felony or misdemeanor. [4] The exception is a state felony or misdemeanor conviction for simple possession of more than five grams of cocaine base (crack) or any amount of flunitrazepam (a date-rape drug). Because this offense is punishable as a felony under federal law, any state conviction also will be held an aggravated felony.[5]

Cazarez-Gutierrez concerned a single conviction, but read in combination with other precedent it means that multiple convictions for simple possession should not be found to be aggravated felonies. Cazarez-Gutierrez holds that whether a state simple possession conviction is a "felony" and therefore an aggravated felony depends upon whether the analogous federal conviction would be. It is true that a second conviction for simple possession is punishable as a felony under federal law, because a sentence enhancement is imposed for recidivism. However the Ninth Circuit en banc in U.S. v Corona-Sanchez [6] ruled that a recidivist sentence enhancement will not be considered in calculating the maximum possible sentence for an offense in a categorical analysis. Rather, the unenhanced maximum potential sentence for the core offense - here simple possession, carrying a maximum possible sentence of a year - is the measure. The Ninth Circuit applied this rule to drug cases and specifically held that Corona-Sanchez overruled prior Ninth Circuit decisions holding that a second federal, and therefore state, possession conviction is an aggravated felony. [7] Thus a person convicted of two or more felony or misdemeanor simple possession offenses does not have a conviction of an aggravated felony, as long as the substance involved was not flunitrazepam or more than 5 grams of crack cocaine.

The previous immigration rule under Matter of Yanez. For some years the BIA had employed the hypothetical federal prosecution rule that the Ninth Circuit has just set out in Cazarez-Gutierrez, i.e. that a state conviction of simple possession is an aggravated felony only if the analogous federal offense is punishable as a felony.[8] But after circuit courts of appeal repeatedly employed the "convicting jurisdiction" rule in federal criminal cases - that the felony/misdemeanor classification of the state can qualify an offense as an aggravated felony - the BIA finally reversed itself in order to conform with the federal decisions. Thus in Matter of Yanez-Garcia and a companion case, the BIA held that a first state felony conviction for simple possession was an aggravated felony, but even a second state misdemeanor conviction for simple possession was not aggravated felony.[9] Now the Ninth Circuit has reversed the BIA, going back to the pre-Yanez rule of the federal hypothetical prosecution. The Ninth Circuit rule differs from the pre-BIA Yanez rule in one important way: as discussed above, the Ninth Circuit has abandoned the former rule that a second conviction of simple possession is an aggravated felony.

If the Ninth Circuit en banc or the Supreme Court were to overturn Cazarez-Gutierrez, the rule might go back to Matter of Yanez: that an offense that is a felony under the law of the convicting jurisdiction is an aggravated felony.

Federal Sentence Enhancement
Federal prosecutions for illegal re-entry carry a harsh sentence enhancement for a prior conviction of an aggravated felony under 8 USC 1326(b)(2). Again the offense must be a "felony" under some test in order to be an aggravated felony.

In simple possession cases the result is straightforward, although the legal standard may be in flux. If a simple offense conviction is a felony under the law of the convicting jurisdiction, the offense is an aggravated felony for purposes of the federal sentence enhancement for illegal re-entry. A felony is defined as an offense potentially punishable by more than a year's imprisonment. [10] The confusion about the legal standard is whether both the federal analogue and the convicting jurisdiction rule apply at the same time in these cases, in essence giving the prosecution two bites at the apple. Recent authority suggested that it would be fairer to consider only the law of the convicting jurisdiction. [11] As long as the cases involve only simple possession, however, the court will not need to address this conflict directly. As discussed above, under Corona Sanchez almost no simple possession conviction is an aggravated felony, so the law of the convicting jurisdiction will be determinative.[12]

Rehabilitative relief
In Lujan-Armendariz v INS, the Ninth Circuit held that as a matter of equal protection, state "rehabilitative relief" to eliminate a conviction (which would include California deferred adjudication, Proposition 36 or P.C. 1203.4) also will eliminate the immigration effect of a first conviction for simple possession of a controlled substance. [13] This should apply to a felony or misdemeanor conviction of simple possession. [14] The court subsequently held that the Lujan-Armendariz benefit also applies to a first conviction of a controlled substance offense that is less serious than simple possession and that is not analogous to a federal drug offense. [15] Foreign rehabilitative relief eliminates the immigration consequences of a foreign conviction for simple possession or a less serious offense that has no federal analogue. [16] See discussion at 3.14.

Excerpted from Brady et al, California Criminal Law and Immigration (2004 edition forthcoming at www.ilrc.org), reprinted with permission.


[1] 8 USC 1101(a)(43)(B), INA 101(a)(43)(B), includes in the definition of aggravated felony "any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code)". Section 924(c)(2) reads, "For purposes of this subsection, the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act, 21 USC 801, et seq., the Controlled Substances Import and Export Act, 21 USC 951, et seq., and the Maritime Drug Law Enforcement Act, 46 USC App. 1901, et seq."
[2]See Gerbier v Holmes, 280 F.3d 297 (3rd Cir. 2002), Aguirre v INS, 79 F.3d 315 (2d Cir. 1996), Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001).
[3]See 21 USC 844(a).
[4] Cazarez-Gutierrez, supra, overruling in part Matter of Yanez-Garcia 23 I&N 390 (BIA 2002), Matter of Santos-Lopez, 23 I&N 419 (BIA 2002)
[5] See 21 USC 844(a), discussion in US v Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir. 2002).
[6]US v Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002)(en banc) (in analyzing whether an offense (in that case theft) is an aggravated felony, a recidivist sentence enhancement is not counted in determining the potential maximum sentence for the offense).
[7]Arellano-Torres, 303 F.3d 1173 (9th Cir. 2002); U.S. Ballesteros-Ruiz, 319 F.3 1101, 1103 (9th Cir. 2003)(U.S. v Corona-Sanchez implicitly overruled holdings in U.S. v Garcia-Olmedo, 112 F.3d 399 (9th Cir. 1997) and U.S. v Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1998) that a second federal simple possession conviction is a felony for this purpose based on the federal recidivist sentence enhancement.)
[8]Matter of K-V-D-, Int. Dec. 3422 (BIA 1999); Matter of L-G-, Int. Dec. 3254 (BIA 1995).
[9]Matter of Yanez-Garcia, Matter of Santos-Lopez, supra.
[10] See U.S. v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002). U.S. v. Arrellano-Torres, 303 F.3d 1173 (9th Cir. 2002) (applying the convicting jurisdiction rule).; discussion in Ballestreros-Ruiz, supra.
[11]"[A] state's judgment about the appropriate punishment for an offense is entitled to deference in the federal sentencing scheme. Since deference is due to a state's decision to punish an offense more severely than would the federal government, similar deference should apply when the state's punishment is less severe." Robles-Rodriguez, 281 F.3d at 905 (emphasis in original), discussed in Ballestreros-Ruiz, xxx (noting the con noting the conflict between the two rules and finding that, in the case of simple possession, it is not necessary to resolve it).
[12]Ballestreros-Ruiz, id.
[13] Lujan-Armendariz v. INS (with Roldan-Santoyo v. INS joined) 222 F.3d 728 (9th Cir. 2000), partially overruling Matter of Roldan, 22 I&N 547 (BIA 1999).
[14] State rehabilitative relief will eliminate a state conviction so long as the conviction could have been treated under the Federal First Offender Act (FFOA), had the case been heard in federal court. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), upholding Garberding v INS, 30 F.3d 1187 (9th Cir. 1994); Matter of Manrique, Int. Dec. 3250 (BIA 1995) The FFOA allows expungement of any offense in 21 USC 844. 18 USC 3607(a). Section 844(a) includes first-offense felony simple possession convictions, such as possession of more than five grams of cocaine base or any amount of the "date rape" drug. These felonies carry a minimum sentence of five and three years, respectively.
[15] Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000).
[16] Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001).


About The Author


Katherine Brady is a senior staff attorney at the Immigrant Legal Resource Center in San Francisco. She has practiced immigration law since 1983. She is the author or co-author of several manuals and books on various aspects of immigration law, and specializes in particular in the intersection between immigration and criminal law. Since 1990 she has been the principal author of California Criminal Law and Immigration, a comprehensive manual published by the Immigrant Legal Resource Center (ILRC). (For information contact publications@ilrc.org) For several years she has served as co-author of the chapter on defending non-citizens in the basic CEB manual, California Criminal Law - Procedure and Practice. She has authored articles in CACJ Forum and other publications on the criminal defense of immigrants, and spoken extensively on the subject at national and local conferences and meetings. With longtime criminal defense practitioner Norton Tooby, Ms. Brady and the ILRC present four full-day seminars annually in California on criminal defense of non-citizens. (For information on these seminars, contact seminars@ilrc.org) She is the author of the "Quick Reference Chart of Immigration Consequences of California Convictions" and accompanying "Notes" that can be found at www.ilrc.org/Cal_DIP_Chart_by_section.pdf.

Katherine Brady can be reached at the Immigrant Legal Resource Center by phone: 415/255-9499, ext 272, fax: 415/255-9792, or email: kbrady@ilrc.org


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.



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