(H)  Offenses for Which No Incarceration May Be Imposed Do Not Constitute Felonies.  In recent years, voters in some states have enacted ballot measures requiring courts to sentence nonviolent persons convicted of drug possession offenses to probation and drug treatment programs, rather than incarceration.  Because incarceration is not permitted under these schemes, the question arises whether these offenses can be considered felonies, and therefore aggravated felonies, if no imprisonment is allowed under state law.

The Ninth Circuit considered the question in United States v. Robles-Rodriguez,[196] when it asked whether a first or second conviction for drug possession under Arizona Proposition 200 constitutes an aggravated felony in the criminal context of illegal re-entry sentencing where incarceration was not authorized.  Holding that it did not, the court focused on the federal definition of “felony.”  The government asserted that an offense is a felony under the Controlled Substances Act, which defines “felony” as “any Federal or State offense classified by applicable Federal or State law as a felony,”[197] whenever the convicting jurisdiction labels it as such.  On the other hand, the court noted that the federal law also defined a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.”[198] 

 

Reading both definitions together, and noting the long history of interpretation by the federal courts, the court held that the word “felony” describes offenses punishable by more than one year’s imprisonment under either state or federal law.  Offenses punishable only by probation — rather than incarceration — under these state sentencing schemes thus do not qualify as “felonies” under federal law, even if technically labeled as felonies by the state court, because they may not be punished by a sentence in excess of one year in custody.[199] 

 

Consequently, offenses that lack a “trafficking” element and fall within a state sentencing scheme authorizing only probation, or incarceration of one year or less in the sentencing guideline context, will not be aggravated felonies, at least in the Ninth Circuit. 

 

The law at issue in Robles-Rodriguez was Arizona Proposition 200, which does not allow for incarceration of more than one year for crimes of drug possession, whether the first or second offense.  California’s Proposition 36 requires that a first or second conviction for simple possession, use or under the influence, and transportation for personal use of a drug must under certain circumstances be treated with drug counseling and rehabilitation, rather than jail.[200]  The California statute excludes convictions for possession for sale, production, or manufacturing of any controlled substance.  Criminal defense counsel should not assume that the California proposition merits the same treatment as the Arizona law, since it is possible under some circumstances for a California defendant falling within this law to be sentenced to state prison.  Immigration counsel may argue the California statute is sufficiently similar to the Arizona statute to merit the same treatment.

Other state statutes must be closely examined to determine whether the offense falls within the bounds of Robles-Rodriguez and whether the defendant is otherwise eligible for treatment under the state provisions.  If so, and only probation is authorized, the conviction will not be an aggravated felony, at least in the Ninth Circuit.

[196] United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[197] 21 U.S.C. § 802(13)

[198] 21 U.S.C. § 802(44).

[199] Central to this conclusion was the court’s view that deference should be accorded to the state’s decision to punish drug offenders less severely than would the federal government, and that the punishment authorized for the offense is a more accurate indicator of the seriousness of the crime, than is the label of the offense.  United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002).

[200] Cal. Penal Code § 1210.1(a) (“A court may not impose incarceration as an additional condition of probation.”).

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