Tooby's California Post-Conviction Relief for Immigrants

The defendant is disqualified from FFOA treatment if s/he suffered a prior state or federal drug conviction before committing the current offense.[21]  If the prior conviction has not become final, before the second offense is committed, it arguably does not disqualify the defendant from eligibility under the FFOA.[22]

[21] Aguiluz-Arellano v. Gonzales, 446 F.3d 980 (9th Cir. May 1, 2006) (petitioner’s conviction for being under the influence of a controlled substance did not fall within the scope of the Federal First Offender Act (FFOA), as he had a prior drug conviction).

[22] See Smith v. Gonzales, 468 F.3d 272 (5th Cir. Oct. 24, 2006) (for purposes of the Controlled Substances Act, a conviction does not become final until time for direct appeal and time for discretionary review have elapsed).