Carachuri-Rosendo v. Holder

• Decision Date: 14 June 2010
• Docket Number: No. 09–60.,09–60.
• Parties: Jose Angel CARACHURI–ROSENDO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General.
• Court: U.S. Supreme Court

560 U.S. 563

130 S.Ct. 2577

177 L.Ed.2d 68

Jose Angel CARACHURI–ROSENDO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General.

No. 09–60.

Supreme Court of the United States

Argued March 31, 2010.

Decided June 14, 2010.

Sri Srinivasan, Washington, DC, for petitioner.

Nicole A. Saharsky, Washington, DC, for respondent.

Geoffrey A. Hoffman, University of Houston, Law Center, Houston, TX, Sri Srinivasan, Counsel of Record, Irving L. Gornstein, Loren L. Alikhan, O'Melveny & Myers LLP, Washington, DImmigration and Nationality Act, Washington, DC, for petitioner.

Elena Kagan, Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Michael R. Dreeben, Deputy Solicitors General, Nicole A. Saharsky, Assistant to the Solicitor General, Donald E. Keener, W. Manning Evans, Saul Greenstein, Andrew MacLachlan, Holly M. Smith, Washington, DC, for respondent.

Opinion

Justice STEVENS delivered the opinion of the Court.

Petitioner Jose Angel Carachuri–Rosendo, a lawful permanent resident who has lived in the United States since he was five years old, faced deportation under federal law after he committed two misdemeanor drug possession offenses in Texas. For the first, possession of less than two ounces of marijuana, he received 20 days in jail. For the second, possession without a prescription of one tablet of a common antianxiety medication, he received 10 days in jail. After this second offense, the Federal Government initiated removal proceedings against him. He conceded that he was removable, but claimed he was eligible for discretionary relief from removal under 8 U.S.C. § 1229b(a).

To decide whether Carachuri–Rosendo is eligible to seek cancellation of removal or waiver of inadmissibility under § 1229b(a), we must decide whether he has been convicted of an “aggravated felony,” § 1229b(a)(3), a category of crimes singled out for the harshest deportation consequences. The Court of Appeals held that a simple drug possession offense, committed after the conviction for a first possession offense became final, is always an aggravated felony. We now reverse and hold that 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.

I

Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., a lawful permanent resident subject to removal from the United States may apply for discretionary cancellation of removal if, inter alia, he “has not been convicted of any aggravated felony,” § 1229b(a)(3). The statutory definition of the term “ aggravated felony” includes a list of numerous federal offenses,¹ one of which is “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of title 18).” § 1101 (a)(43)(B). Section 924(c)(2), in turn, defines a “drug trafficking crime” to mean “any 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.” 18 U.S.C. § 3559(a).²

The maze of statutory cross-references continues. Section 404 of the Controlled Substances Act criminalizes simple possession offenses, the type of offense at issue in this case. But it prescribes punishment for both misdemeanor and felony offenses. Except for simple possession of crack cocaine or flunitrazepam, a first-time simple possession offense is a federal misdemeanor; the maximum term authorized for such a conviction is less than one year. 21 U.S.C. § 844(a). However, a conviction for a simple possession offense “after a prior conviction under this subchapter [or] under the law of any State ... has become final”—what we will call recidivist simple possession³—may be punished as a felony, with a prison sentence of up to two years. Ibid.⁴ Thus, except for simple possession offenses involving isolated categories of drugs not presently at issue, only recidivist simple possession offenses are “punishable” as a federal “felony” under the Controlled Substances Act, 18 U.S.C. § 924(c) (2). And thus only a conviction within this particular category of simple possession offenses might, conceivably, be an “aggravated felony” under 8 U.S.C. § 1101(a)(43).

For a subsequent simple possession offense to be eligible for an enhanced punishment, i.e., to be punishable as a felony, the Controlled Substances Act requires that a prosecutor charge the existence of the prior simple possession conviction before trial, or before a guilty plea. See 21 U.S.C. § 851(a)(1).⁵ Notice, plus an opportunity to challenge the validity of the prior conviction used to enhance the current conviction, §§ 851(b)-(c), are mandatory prerequisites to obtaining a punishment based on the fact of a prior conviction.⁶ And they are also necessary prerequisites under federal law to “authorize” a felony punishment, 18 U.S.C. § 3559(a), for the type of simple possession offense at issue in this case.

Neither the definition of an “illicit trafficking” offense under 8 U.S.C. § 1101(a)(43)(B) nor that of a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) describes or references any state offenses. The “aggravated felony” definition does explain that the term applies “to an offense described in this paragraph whether in violation of Federal or State law.” § 1101(a)(43). But in Lopez v. Gonzales, 549 U.S. 47, 56, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), we determined that, in order to be an “aggravated felony” for immigration law purposes, a state drug conviction must be punishable as a felony under federal law. We held that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Id. at 60, 127 S.Ct. 625. Despite the fact that the Lopez petitioner had been punished as a felon under state law—and, indeed, received a 5–year sentence—the conduct of his offense was not punishable as a felony under federal law, and this prevented the state conviction from qualifying as an aggravated felony for immigration law purposes. Id. at 55, 127 S.Ct. 625 (“Unless a state offense is punishable as a federal felony it does not count”).

In the case before us, the Government argues that Carachuri–Rosendo, despite having received only a 10–day sentence for his Texas misdemeanor simple possession offense, nevertheless has been “convicted” of an “aggravated felony” within the meaning of the INA. This is so, the Government contends, because had Carachuri–Rosendo been prosecuted in federal court instead of state court, he could have been prosecuted as a felon and received a 2–year sentence based on the fact of his prior simple possession offense. Our holding in Lopez teaches that, for a state conviction to qualify as an “aggravated felony” under the INA, it is necessary for the underlying conduct to be punishable as a federal felony. Id. at 60, 127 S.Ct. 625. We now must determine whether the mere possibility, no matter how remote, that a 2–year sentence might have been imposed in a federal trial is a sufficient basis for concluding that a state misdemeanant who was not charged as a recidivist has been “convicted” of an “aggravated felony” within the meaning of § 1229b(a)(3).

II

Carachuri–Rosendo was born in Mexico in 1978. He came to the United States with his parents in 1983 and has been a lawful permanent resident of Texas ever since. His common-law wife and four children are American citizens, as are his mother and two sisters.

Like so many in this country, Carachuri–Rosendo has gotten into some trouble with our drug laws. In 2004, he pleaded guilty to possessing less than two ounces of marijuana, a Class B misdemeanor, and was sentenced to confinement for 20 days by a Texas court. See App. 19a–22a; Tex. Health & Safety Code Ann. §§ 481.121(a) and (b)(1) (West Supp. 2009). In 2005, he pleaded nolo contendere to possessing less than 28 grams—one tablet—of alprazolam (known commercially as Xanax) without a prescription, a Class A misdemeanor. See App. 31a–34a; Tex. Health & Safety Code Ann. §§ 481.117(a) and (b). Although Texas law, like federal law, authorized a sentencing enhancement if the prosecutor proved that Carachuri–Rosendo had been previously convicted of an offense of a similar class, the State did not elect to seek an enhancement based on his criminal history. App. 32a.

In 2006, on the basis of Carachuri–Rosendo's second possession offense, the Federal Government initiated removal proceedings against him. Appearing pro se before the Immigration Judge, Carachuri–Rosendo did not dispute that his conviction for possessing one tablet of Xanax without a prescription made him removable,⁷ but he applied for a discretionary cancellation of removal pursuant to 8 U.S.C. § 1229b(a). Under that statutory provision, the Attorney General may cancel an order of removal or an order of inadmissibility so long as, inter alia, the noncitizen “has not been convicted of a[n] aggravated felony.” § 1229b(a)(3). The Immigration Judge held that petitioner's second simple possession conviction was an “aggravated felony” that made him ineligible for cancellation of removal.

The Board of Immigration Appeals (BIA) followed Circuit precedent and affirmed that decision, but it disagreed with the Immigration Judge's legal analysis. In its en banc opinion, the BIA ruled that in cases arising in Circuits in which the question had not yet been decided, the BIA would not treat a second or successive misdemeanor conviction as an aggravated felony unless the conviction contained a finding that the offender was a recidivist. In re Carachuri–Rosendo, 24 I. & N. Dec. 382, 387, 391 (2007).

The BIA explained that the statutory question is complicated by the fact that “ ‘recidivist possession’ ” is not a “discrete offense under Federal law.” Id. at 388. While most federal offenses are...