Gerbier v. Holmes

• Decision Date: 08 February 2002
• Docket Number: No. 00-2335.,00-2335.
• Citation: 280 F.3d 297
• Parties: David GERBIER, Appellant v. M. Francis HOLMES, Acting District Director, U.S. Immigration and Naturalization Service; John Ashcroft, U.S. Attorney General.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Third Circuit

280 F.3d 297

David GERBIER, Appellant v. M. Francis HOLMES, Acting District Director, U.S. Immigration and Naturalization Service; John Ashcroft, U.S. Attorney General.^*

No. 00-2335.

United States Court of Appeals, Third Circuit.

Argued: June 28, 2001.

Filed: February 8, 2002.

Sandra L. Green (Argued), York, PA, Counsel for Appellant.

Patrick L. Meehan, United States Attorney, James G. Sheehan, Assistant United States Attorney Chief, Civil Division, Stephen J. Britt (Argued), Assistant United States Attorney, Philadelphia, PA, Counsel for Appellees.

Before: BECKER, Chief Judge, NYGAARD and REAVLEY,^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This deportation case is before us on the appeal of David Gerbier from an order of the District Court for the Eastern District of Pennsylvania, which denied his petition for a writ of habeas corpus. Gerbier is a citizen of Haiti who was a lawful permanent resident of the United States from 1984 until 1999 when he was removed to Haiti in the wake of proceedings triggered by a Delaware felony drug possession conviction that came to the attention of the Immigration and Naturalization Service ("INS").

The appeal turns on the meaning of "aggravated felony" under the Immigration and Naturalization Act ("INA"). See 8 U.S.C. § 1 et seq. (1999). Whether an alien has been convicted of an "aggravated felony" determines whether he is eligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3) (1999). The primary question, one of first impression for us, is whether a state felony drug conviction constitutes a "drug trafficking crime" and, therefore, an "aggravated felony" under the INA when that crime would only be punishable as a misdemeanor under federal law. This issue turns on the proper interpretation of 18 U.S.C. § 924(c)(2), which is the criminal penalties section of the federal criminal code and is incorporated by reference into the INA. See 8 U.S.C. § 1101(a)(43)(B) (1999).

Gerbier's conviction was for "trafficking in cocaine" even though the factual basis for the plea was mere possession, which the Delaware statute subsumes under "trafficking." While there is no dispute that a state felony drug conviction constitutes an "aggravated felony" when there is a trafficking component to the state conviction, we note that there is a conflict between the Board of Immigration Appeals ("BIA") and several Courts of Appeals with respect to the proper interpretation of § 924(c)(2) as it applies to state convictions when there is no trafficking element. This conflict arose because the "aggravated felony" definition set forth in § 1101(a)(43), incorporating § 924(c)(2), is referenced not only in the deportation section of the INA, but also in the United States Sentencing Guidelines.

The BIA has interpreted § 924(c)(2) to require that, for deportation purposes, a state drug conviction, whether it be a felony or a misdemeanor, must either contain a "trafficking" component or be punishable as a felony under federal law in order for it to constitute an "aggravated felony." In contrast, several Courts of Appeals have interpreted the same language in § 924(c)(2), albeit in the Sentencing Guidelines context, to require that the state drug conviction need only be a felony under state law and that the state crime be punishable under the federal Controlled Substances Act, either as a felony or a misdemeanor. We are faced here with the task of determining which interpretation of § 924(c)(2) is correct.

While we acknowledge that the majority of Courts of Appeals have taken the contrary approach, we conclude that the BIA's interpretation for deportation purposes is the correct one. We recognize that the interpretation of § 924(c)(2) in the Sentencing Guidelines context serves different purposes, particularly with respect to criminal recidivism, and we reserve for another day the proper interpretation of § 924(c)(2) in the Sentencing Guidelines context. For deportation purposes, however, we are persuaded by precepts of statutory construction and by the legislative history of § 924 that a state felony drug conviction constitutes a "drug trafficking crime" only if it would be punishable as a felony under the federal Controlled Substances Act. We believe that this conclusion properly reflects the policy favoring uniformity in construction of the INA because it subjects aliens to the same treatment regardless of how different states might categorize similar drug crimes. However, we reject the approach advanced by Gerbier that all state drug convictions must have a trading or dealing element in order to constitute "aggravated felonies" under the INA. Gerbier's argument stems from his belief that the 1990 amendments to the INA altered the definition of which drug crimes were "aggravated felonies." While we find strong intuitive appeal in Gerbier's argument, we believe that the legislative history accompanying the 1990 amendments to the INA makes clear that his interpretation is not correct.

Under the BIA's approach, a state drug conviction constitutes an "aggravated felony" under either of two routes. Under the first route, a felony state drug conviction is an "aggravated felony" under § 924(c)(2) if it contains a trafficking element. Under the second route, a state drug conviction, either a felony or a misdemeanor, is an "aggravated felony" if it would be punishable as a felony under the Controlled Substances Act. Applying the BIA's interpretation of § 1101(a)(43)(B) to Gerbier's state felony drug conviction, we conclude that he has not been convicted of an "aggravated felony." Gerbier's conviction does not fall within the first route; although his conviction was a felony under state law (thereby satisfying the INS's interpretation), his conviction did not involve a trafficking element. We reject the INS's argument that Gerbier's conviction under a statute entitled "Trafficking ... in illegal drugs" means that he is guilty of a trafficking offense. As the Delaware Supreme Court has made clear, the statute under which Gerbier was convicted does not contain an element or presumption of trafficking — it is merely the title of the act. See Traylor v. State, 458 A.2d 1170 (Del. 1983). In this case, Gerbier pleaded guilty to the lesser-included offense of possession, and hence there is no trafficking element.

Gerbier's conviction also does not qualify as an "aggravated felony" under the second route because his offense would not be punishable as a felony under federal law. We reject the INS's contention that 21 U.S.C. §§ 802(13) and (44) are the proper federal analogs. Those sections do not define substantive offenses under Chapter 13 of Title 21; rather, they merely define "felony" and "felony drug offense" for purposes of prior criminal history sentencing enhancements for Chapter 13's substantive drug offenses. Instead, we conclude that the proper federal analog is 21 U.S.C. § 844(a), the federal simple possession statute. Under this statute, the maximum sentence that Gerbier would have received had he been prosecuted in federal court would have been one year. Thus, his state felony drug conviction is only punishable as a misdemeanor under federal law.

While we acknowledge that there is a sentence enhancement under § 844(a) if there is a prior drug conviction under either state or federal law, we conclude that our decision in Steele v. Blackman, 236 F.3d 130 (3d Cir.2001), forecloses the INS's argument that Gerbier would have faced a minimum two year sentence under § 844(a) because of his prior misdemeanor drug conviction for marijuana. We held in Steele that a prior conviction cannot be used to enhance a sentence for purposes of determining whether the alien has been convicted of an "aggravated felony" when his prior conviction was never litigated as part of the criminal proceeding in the crime for which the alien is being deported. It was not so litigated here.

Having concluded that a state felony drug conviction without a trafficking element constitutes an "aggravated felony" under the INA only when that same crime would be punished as a felony were the alien prosecuted in federal court, and that Gerbier's conviction would have only been punishable as a misdemeanor under federal law, we will reverse the District Court's order denying habeas corpus relief, and remand with instructions that it grant the writ and return this matter to the agency so that Gerbier may submit an application for cancellation of removal in accordance with 8 U.S.C. § 1229b(a).

I. Facts and Procedural History

Gerbier, as noted, is a Haitian national who has been a lawful U.S. permanent resident since 1984, resided in Philadelphia, and has worked in a factory, a restaurant, and a car wash. Gerbier's mother, two brothers, and two children reside in the United States. His children are United States citizens. On May 1, 1996, Gerbier was arrested in Wilmington, Delaware for possession of marijuana and, on February 6, 1997, pleaded guilty to the charge of possession of marijuana, in violation of Del.Code Ann. tit. 16, § 4754. He was placed on probation for three years, his driver's license was revoked, and he was ordered to pay $25.00 in court costs.

A year later, on June 21, 1997, Gerbier was arrested, again in Wilmington, and charged with trafficking in 160.22 grams of cocaine base, also known as "crack." The grand jury in New Castle County returned a two-count indictment against Gerbier in July 1997. The first count alleged knowing possession of cocaine in excess of 100 grams, in violation of Del.Code Ann. tit. 16, § 4716(b)(4). The second count alleged possession with intent to deliver cocaine, in violation of Del.Code Ann. tit. 16, § 4751. In August 1997, Gerbier pleaded guilty to the lesser included offense of "trafficking in cocaine," in violation of Del.Code Ann. tit. 16, § 4753A(2)(a). Section 4753A(2)(a), labeled "Trafficking in marijuana, cocaine, illegal drugs, methamphetamines, L.S.D., or...