(E)  State Felony Simple Possession.  A state court conviction of simple possession of a controlled substance is generally considered an aggravated felony for immigration purposes,[182] and for illegal re-entry sentencing purposes,[183] if it is a state felony.  See § 7.22(E)(1), infra.  This rule does not apply, however, in the Second, Third, Sixth, and Ninth Circuits, where a state felony conviction of a controlled substances offense will not constitute an aggravated felony conviction for immigration purposes, unless the offense would have been a felony if prosecuted in federal court.  See § 7.22(E)(2), infra.

            (1)  Majority Rule.  A state court conviction of simple possession of a controlled substance is generally considered an aggravated felony for immigration purposes,[184] and for illegal re-entry sentencing purposes,[185] if it is a felony under state law.  See § 7.22(E)(3), infra.

 

The federal Controlled Substances Act (CSA) defines the term “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony.”[186]  The majority of circuits have held that under this definition, a state conviction of simple possession of a controlled substance that is defined as a felony under state law would constitute a “felony” under the CSA for purposes of bringing the conviction within the definition of aggravated felony, even though a first-offense conviction of the same offense would only constitute a misdemeanor if it had been prosecuted under federal law. [187]

 

Counsel should assume that if a state conviction is considered a felony by the state, that it will be considered an aggravated felony, but may argue to the contrary where the offense would be a misdemeanor if prosecuted in federal court or where the maximum is one year or less, which makes the offense a  misdemeanor under the federal definition of felony.

 

            (2)  Minority Rule that State Felony Conviction Does Not Constitute Aggravated Felony for Removal Purposes Unless It Would Have Been a Felony if Prosecuted in Federal Court.  In the Second, Third, Sixth, and Ninth Circuits, a state felony conviction of simple possession of a controlled substance cannot constitute a drug trafficking aggravated felony, for immigration purposes, since it would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court.[188]  See § 7.22(E)(3), infra.  This is an open question in the Seventh Circuit.[189] 

Remember, however, that a conviction for possession of more than five grams of cocaine base, or any amount of the date-rape drug flunitrazepam, will  constitute a felony under federal law, even for a first offense.[190]  Therefore a felony or misdemeanor state conviction for possession of these two drugs will constitute an aggravated felony for immigration purposes, even in the minority circuits.

 

Also remember that the circuit may follow a different rule in the sentencing context.  See § 7.22(E)(3), infra.

 

            (3)  Circuit by Circuit Breakdown.  The following lists will show which circuits have issued decisions on whether a state felony simple possession offense is an aggravated felony offense for sentencing and/or immigration purposes.

 

            In the illegal re-entry sentencing context, the following circuits have held that a state felony simple possession conviction is therefore an aggravated felony: First, Second, Fourth, Fifth, Eighth, Ninth, Tenth and Eleventh.[191]  No circuit has specifically held that the conviction would be a misdemeanor for sentencing purposes.

            In the immigration context, the following circuits have held that a state felony simple possession offense is not an aggravated felony: Second, Third, Sixth and Ninth.[192]  No circuit has specifically held that the conviction would be a felony, and therefore an aggravated felony in the immigration context.  However, this is the rule currently applied by the Board of Immigration Appeals.[193]

 

[182] Matter of Yanez, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[183] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).

[184] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[185] United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. 2000).

[186] This definition also applies to the Controlled Substances Import and Export Act and the Maritime Drug Law Enforcement Act.  See 21 U.S.C. § 951(b) (2000); 46 U.S.C. App. § 1903(i) (2000).

[187] See, e.g., United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir. 1996) (concluding that Congress and the Sentencing Commission in relying on the CSA for this aggravated felony definition used the definition of “felony” contained in the CSA); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir. 2000).

[188] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004) (Arizona felony conviction of possession of methamphetamine, in violation of Ariz. Rev. Stat. § 13-3407 (West 1997), which would have been a misdemeanor under 21 U.S.C. § 844(a) if prosecuted in federal court, did not constitute a drug trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for deportation purposes, under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), in order to enforce “the presumption that Congress intends immigration law to be nationally uniform and uniformly applied,” so as to avoid different results depending on the vagaries of state law).

[189] Garcia v. Ashcroft, 394 F.3d 487 (7th Cir. Jan. 6, 2005) (petition for review is transferred to the district court and must be construed as a petition for a writ of habeas corpus to determine whether noncitizen’s state felony conviction for possession of a controlled substance, which is punishable only as a misdemeanor under federal law, qualifies as an aggravated felony).

[190] 21 U.S.C. § 844(a).

[191] United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. Jan. 30, 1996); United States v. Ramirez, 344 F.3d 247 (2d Cir. 2003); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir. March 26, 1999); United States v. Wilson, 316 F.3d 506 (4th Cir. Jan. 16, 2003); United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. May 11, 2001); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. Dec. 4, 1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir. May 12, 1997); United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir. Mar. 27, 2000); United States v. Castro-Rocha, 323 F.3d 846 (10th Cir. March 25, 2003); United States v. Valenzuela-Escalante, 130 F.3d 944 (10th Cir. Dec. 5, 1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir. April 16, 1996); United States v. Simon, 168 F.3d 1271 (11th Cir. March 4, 1999).

[192] Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002); Liao v. Rabbitt, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code § 2925.11, a “fifth degree felony” under Ohio law, which is punishable by a maximum term of 12 months’ imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)) (alternative holding); Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. Sep 09, 2004); Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905 (9th Cir. Aug. 24, 2004).

[193] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 394 (BIA 2002) (en banc).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION SENTENCE - MISDEMEANOR LABEL OVERCOMES MAXIMUM POSSIBLE SENTENCE
United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. Sept. 6, 2005) (Maryland conviction of misdemeanor simple possession of cocaine, in violation of Md.Code, Art. 27, 287(e), was not an aggravated felony for sentencing purposes, as the state offense is not a felony, even though the offense was punishable by up to four years imprisonment).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - STATE FELONY CONVICTION OF SIMPLE POSSESSION OF A CONTROLLED SUBSTANCE CONSTITUTED AN AGGRAVATED FELONY TRIGGERING REMOVAL, EVEN THOUGH IT DID NOT DO SO UNDER BIA PRECEDENT IN FORCE AT THE TIME THE PLEA OF GUILTY WAS ENTERED
Salazar-Regino v. Trominski, ___ F.3d ___ (5th Cir. June 30, 2005) (Texas deferred adjudication following guilty plea to felony possession of marijuana constituted a conviction for removal purposes under INA 101(a)(48)(A), 8 U.S.C. 1101(a)(48)(A), even though it did not constitute grounds for removal under the hypothetical federal felony test dictated by the BIA at the time the plea of guilty was entered, because it would only have constituted a misdemeanor if prosecuted in federal court).
http://caselaw.lp.findlaw.com/data2/circs/5th/0341492p.pdf

Lower Courts of Seventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION -- HYPOTHETICAL FEDERAL FELONY RULE
Masok v. Achim, ___ F.3d ___, 2005 WL 1017891 (N.D. Ill. 2005) (Illinois conviction of possession of less than 15 grams of cocaine, in violation of 720 ILCS 570/402(c), which constituted a Class 4 felony under Illinois law, held not convicted of an aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), because the conviction would not have constituted a felony, but only a misdemeanor, if prosecuted under federal law).

Other

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION
There is an argument that regardless of any latent ambiguity in the phrase "any felony" in 924(c)(2), under Jerome v. U.S., 318 U.S. 101 (1943), 1101(a)(43)(B) covers only convictions, whether obtained under federal or state law, which would be felonies under 18 U.S.C. 924(c)(2). In Jerome v. U.S., the issue was the meaning of the phrase "any felony" in a federal criminal statute. As the Court held therein, 318 U.S. at 101-2 (internal citations omitted): Sec. 2 (a) of the Bank Robbery Act ... provides in part that "whoever shall enter or attempt to enter any bank, n1 or any building used in whole or in part as a bank, with intent to commit in such bank or building, or part thereof, so used, any felony or larceny, shall be fined not more than $ 5,000 or imprisoned not more than twenty years, or both." Petitioner was indicted under that section for entering a national bank in Vermont with intent to utter a forged promissory note and thereby to defraud the bank. He was convicted after trial before a jury and was sentenced to imprisonment for one year and a day. The utterance of a forged promissory note is a felony under the laws of Vermont ... but not under any federal statute. The Circuit Court of Appeals affirmed the conviction by a divided vote, holding that "felony" as used in 2(a) includes offenses which are felonies under state law. 130 F.2d 514. We granted the petition for a writ of certiorari because of the importance of the problem in the administration of justice and because of the diversity of views which have developed as respects the meaning of "felony" in 2(a). In concluding that the phrase "any felony" presumptively excluded crimes which were felonies under state, but not federal, law, the Court reasoned, id. at 104 (emphasis added): At times it has been inferred from the nature of the problem with which Congress was dealing that the application of a federal statute should be dependent on state law. Examples under federal revenue acts are common. Douglas v. Willcuts, 296 U.S. 1; Helvering v. Stuart, 317 U.S. 154, and cases cited. But we must generally assume, in the absence of a plain indication to the contrary, that Congress when it enacts a statute is not making the application of the federal act dependent on state law. That assumption is based on the fact that the application of federal legislation is nationwide (United States v. Pelzer, 312 U.S. 399, 402) and at times on the fact that the federal program would be impaired if state law were to control. See also, Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989) (some internal citations omitted) (emphasis added): [T]he general assumption [is] that "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U.S. 101, 104 (1943)... One reason for this rule of construction is that federal statutes are generally intended to have uniform nationwide application. ... Accordingly, the cases in which we have found that Congress intended a state-law definition of a statutory term have often been those where uniformity clearly was not intended... A second reason for the presumption against the application of state law is the danger that "the federal program would be impaired if state law were to control." ... For this reason, "we look to the purpose of the statute to ascertain what is intended." The term "aggravated felony" includes state crimes as a result of the overarching language of 8 U.S.C. 1101(a)(43), not from 18 U.S.C. 924(c)(2). The meaning of 924(c)(2) is thus unaffected by the fact that 1101(a)(43) covers both federal and state crimes. Thanks to Lisa S. Brodyaga