560 U.S. 563


certiorari to the united states court of appeals for the fifth circuit

No. 0960.Argued March 31, 2010Decided June 14, 2010

Petitioner, a lawful permanent resident of the United States, faced deportation after committing two misdemeanor drug offenses in Texas. For the first, possession of a small amount of marijuana, he received 20 days in jail. For the second, possession without a prescription of one antianxiety tablet, he received 10 days. Texas law, like federal law, authorized a sentencing enhancement if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek such an enhancement here. After the second conviction, the Federal Government initiated removal proceedings. Petitioner conceded that he was removable, but claimed that he was eligible for discretionary cancellation of removal under the Immigration and Nationality Act (INA) because he had not been convicted of any aggravated felony, 8 U.S.C. 1229b(a)(3). Section 1101(a)(43)(B) defines that term to include, inter alia, illicit trafficking in a controlled substance including a drug trafficking crime as defined in 18 U.S.C. 924(c), which, in turn, defines a drug trafficking crime as a felony punishable under, inter alia , the Controlled Substances Act (21 U.S.C. 801 et seq . ). A felony is a crime for which the maximum term of imprisonment authorized is more than one year. 3559(a). Simple possession offenses are ordinarily misdemeanors punishable with shorter sentences, but a conviction after a prior conviction under this subchapter [or] the law of any State has become finala recidivist simple possession offenseis punishable as a felony under 924(c)(2) and subject to a 2-year sentence. Only this recidivist simple possession category might be an aggravated felony under 8 U.S.C. 1101(a)(43). A prosecutor must charge the existence of the prior conviction. See 21 U.S.C. 851(a)(1). Notice and an opportunity to challenge its validity, 851(b)(c), are mandatory prerequisites to obtaining a punishment based on the fact of the prior conviction and necessary prerequisites to authorize a felony punishment, 18 U.S.C. 3559(a), for the simple possession offense at issue.

Here, the Immigration Judge held that petitioners second simple possession conviction was an aggravated felony that made him ineligible for cancellation of removal. The Board of Immigration Appeals and Fifth Circuit affirmed. Relying on the holding in Lopez v. Gonzales , 549 U.S. 47that to be an aggravated felony for immigration law purposes, a state drug conviction must be punishable as a felony under federal lawthe court used a hypothetical approach, concluding that because petitioners conduct could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.

Held: Second or subsequent simple possession offenses are not aggravated felonies under 1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction. Pp.919.

(a)Considering the disputed provisions terms and their commonsense conception, Lopez , 549 U.S., at 53, it would be counterintuitive and unorthodox to apply an aggravated felony or illicit trafficking label to petitioners recidivist possession, see id., at 54. The same is true for his penalty. One does not usually think of a 10-day sentence for unauthorized possession of one prescription pill as an aggravated felony. This Court must be very wary in this case because the Government seeks a result that the English language tells [the Court] not to expect. Ibid . Pp.911.

(b)The Governments positionthat conduct punishable as a felony should be treated as the equivalent of a felony conviction when the underlying conduct could have been a felony under federal lawis unpersuasive. First, it ignores the INAs text, which limits the Attorney Generals cancellation power only when, inter alia , a noncitizen has been convicted of a[n] aggravated felony. 8 U.S.C. 1229b(a)(3). Thus, the conviction itself is the starting place, not what might have or could have been charged. Under the Controlled Substances Act, simple possession offenses carry only a 1-year sentence unless a prosecutor elects to charge the defendant as a recidivist and the defendant receives notice and an opportunity to defend against that charge. Here, petitioners record of conviction contains no finding of the fact of his prior drug offense. An immigration court cannot, expost , enhance the state offense of record just because facts known to it would have authorized a greater penalty. The Government contends that had petitioner been prosecuted in federal court under identical circumstances, he would have committed an aggravated felony for immigration law purposes. But his circumstances were not identical to the Governments hypothesis. And the Governments approach cannot be reconciled with 8 U.S.C. 1229b(a)(3), which requires an aggravated felony convictionnot that the noncitizen merely could have been convicted of a felony but was not. Second, the Governments position fails to effectuate 21 U.S.C. 851s mandatory notice and process requirements, which have great practical significance with respect to the conviction itself and are integral to the structure and design of federal drug laws. They authorize prosecutors to exercise discretion when electing whether to pursue a recidivist enhancement. So do many state criminal codes, including Texas. Permitting an immigration judge to apply his own recidivist enhancement after the fact would denigrate state prosecutors independent judgment to execute such laws. Third, the Fifth Circuit misread Lopez. This Court never used a hypothetical approach in its analysis. By focusing on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment, the Circuits approach introduces a level of conjecture that has no basis in Lopez. Fourth, the Governments argument is inconsistent with common practice in the federal courts, for it is quite unlikely that petitioners conduct would have been punished as a felony in federal court. Finally, as the Court noted in Leocal v. Ashcroft , 543 U.S. 1, n.8, ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizens favor. Notably, here, the question whether petitioner has committed an aggravated felony is relevant to the type of relief he may obtain from a removal order, but not to whether he is in fact removable. Thus, any relief he may obtain still depends on the Attorney Generals discretion. Pp.1118.

570 F.3d 263, reversed.

Stevens, J., delivered the opinion of the Court, in which Roberts, C.J., and Kennedy, Ginsburg, Breyer, Alito, and Sotomayor, JJ., joined. Scalia, J., and Thomas, J., filed opinions concurring in the judgment.


on writ of certiorari to the united states court of appeals for the fifth circuit

[June 14, 2010]

Justice Scalia , concurring in the judgment.

I agree with the Court that Carachuri-Rosendos 2005 conviction for simple possession of a tablet of Xanax in violation of Texas law is not a conviction for an aggravated felony under 8 U.S.C. 1101(a)(43)(B). But my reasoning is more straightforward than the Courts, and so I concur only in the judgment.

Under the Immigration and Nationality Act, the Attorney General may cancel the removal of an alien from the United States provided the alien has not been convicted of any aggravated felony. 1229b(a)(3). There is no statutory definition of convicted, but a conviction is defined to mean a formal judgment of guilt of the alien entered by a court. 1101(a)(48)(A). The term aggravated felony includes, among many other offenses, a drug trafficking crime (as defined in [ 18 U.S.C. 924(c)]). 1101(a)(43)(B). A drug trafficking crime is in turn defined as any felony punishable under the Controlled Substances Act. 18 U.S.C. 924(c)(2).

It could be concluded from the provisions discussed above that only a federal conviction for a felony offense under the Controlled Substances Act would qualify under 8 U.S.C. 1101(a)(43)(B). But the penultimate sentence in 1101(a)(43) provides that the statutory definition of aggravated felony applies to an offense described in this paragraph whether in violation of Federal or State law. This language, we have said, confirms that a state offense whose elements include the elements of a felony punishable under the [Controlled Substances Act] is an aggravated felony. Lopez v. Gonzales , 549 U.S. 47, 57 (2006) .

The conceptual problem in the present case is that the only crime defined by 21 U.S.C. 844(a) of the Controlled Substances Act, simple possession of prohibited drugs, is a misdemeanor. That misdemeanor becomes a felony punishable under the Controlled Substances Act only because the sentencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony. We held in Almendarez-Torres v. United States , 523 U.S. 224 (1998) , that recidivism can constitutionally be made a sentencing factor rather than an element of the crime, despite the fact that it is used to increase the allowable sentence. And we said in Lopez that a state possession crim[e] that correspond[s] to the felony violatio[n] of recidivist possession in 844(a) clearly fall[s] within the definitions used by Congress in 1101(a)(43)(B) and 924(c)(2). 549 U.S., at 55, n.6.

But to say all that is not to say that an alien has been convicted of an aggravated felony (which is what 1229b(a)(3) requires) when he has been convicted of nothing more than a second state misdemeanor violation, the punishment for which could, because of recidivism, be extended beyond one year. Just because, by reason of Almendarez-Torres , the federal misdemeanor offense has been raised to a felony offense without changing its elements, solely by increasing its penalty pursuant to a recidivist sentencing factor; it does not follow that when the question is asked whether someone has been convicted of a state offense that corresponds to the federal misdemeanor-become-felony, the answer can be sought in sentencing factors. A defendant is not convicted of sentencing factors, but only of the elements of the crime charged in the indictment. In other words, a misdemeanor offense with a sentencing factor that raises its punishment to the felony level qualifies for purposes of establishing the elements of a felony punishable under the Controlled Substances Act; but does not qualify for purposes of determining what elements the alien has been convicted of. Here, Carachuri-Rosendo was only convicted of the crime of knowing possession of a controlled substance without a valid prescription, a Class A misdemeanor under Texas law. Tex. Health & Safety Code Ann. 481.117(a) and (b) (West Supp. 2009). Since the elements of that crime did not include recidivism, the crime of his conviction did not correspond to the Controlled Substances Act felony of possession-plus-recidivism under 21 U.S.C. 844(a).

For these reasons, I concur in the judgment.