The following is an explanation of the one of the latest ruling by the US Supreme Court regarding the ability to avoid automatic deportation for minor drug offense by a Virginia Criminal/Immigration lawyer.
Second or subsequent simple drug possession offenses are not “aggravated felonies,” so as to preclude cancellation of removal, when the state conviction is not based on the fact of a prior conviction. Immigration and Nationality Act, §§ 101(a)(43), 240A(a)(3), 8 U.S.C.A. §§ 1101(a)(43), 1229b(a)(3).Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S. Ct. 2577, 177 L. Ed. 2d 68 (2010)
Carachuri-Rosendo v. Holder,
560 U.S. 563, 130 S. Ct. 2577, 177 L. Ed. 2d 68 (2010)
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.
Whether Petitioner by his second drug offense was convicted of aggravated felony?
Whether Petitioner was eligible for discretionary cancellation of removal under the Immigration and Nationality Act (INA)?
- 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 final,” 21 U.S.C. § 844(a)—a “recidivist” simple possession offense—is “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).
Conditions to be satisfied by prosecutor to charge a second misdemeanor offense as an aggravated felony:
- 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.
The court held that a 10–day sentence for unauthorized possession of one prescription pill cannot be treated as an “aggravated felony.” Ambiguities in criminal statutes referenced in immigration laws should be construed in the noncitizen’s favor.
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, petitioner’s record of conviction contains no finding of the fact of his prior drug offense. An immigration court cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty.
The court held that when a defendant has been convicted of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been “convicted” under § 1229b(a)(3) of a “felony punishable” as such “under the Controlled Substances Act,” 18 U.S.C. § 924(c)(2).The prosecutor in Carachuri–Rosendo‘s case declined to charge him as arecidivist. He has, therefore, not been convicted of a felony punishable under the Controlled Substances Act.
“[for] a state offense to qualify as an “aggravated felony,” so as to preclude cancellation of removal, the defendant must have been actually convicted of a crime that is itself punishable as a felony under federal law.” It is not enough that the defendant’s conduct coupled with facts outside of the record (such as his first conviction) could have authorized a federal felony conviction. The defendant must have actually been convicted of a crime that is punishable as a felony under federal law.
Second or subsequent simple drug possession offenses are not “aggravated felonies,” so as to preclude cancellation of removal, when the state conviction is not based on the fact of a prior conviction.
We can defend a client who convicted,any of the following drug offenses,for second or subsequent simple drug possession offensesin Virginia:
Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance prohibited; penalties under
- Sub clause E of Section 18.2-248 – If the violation of the provisions of this article consists of the filling by a pharmacist of the prescription of a person authorizedunder this article to issue the same, which prescription has not been received in writing by the pharmacist prior to the filling thereof, and such written prescription is in fact received by the pharmacist within one week of the time of filling the same, or if such violation consists of a request by such authorized person for the filling by a pharmacist of a prescription which has not been received in writing by the pharmacist and such prescription is, in fact, written at the time of such request and delivered to the pharmacist within one week thereof, either such offense shall constitute a Class 4 misdemeanor
- Sub clause E3 of Section 18.2-248- Any person who proves that he gave, distributed, …only as an accommodation to another individual who is not an inmate in a community correctional facility…
- Sub clause F of Section 18.2-248 – Any person who violates this section with respect to a controlled substance classified in Schedule V or Schedule VI or an imitation controlled substance which imitates a controlled substance classified in Schedule V or Schedule VI, shall be guilty of a Class 1 misdemeanor.
Sale, gift, distribution or possession with intent to sell, give or distribute marijuana.
- Not more than one-half ounce of marijuana sub-clause (a)(1) of 18.2-248.1
- If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana.
- 18.2-248.4. Advertisement of imitation controlled substances prohibited; penalty.
It shall be a Class 1 misdemeanor for any person knowingly to sell or display for sale, or to distribute, whether or not any charge is made therefor, any book, pamphlet, handbill or other printed matter which he knows is intended to promote the distribution of an imitation controlled substance.
- 18.2-248.5. Illegal stimulants and steroids; penalty.
- It shall be unlawful for any person to knowingly sell or otherwise distribute, without prescription, to a minor any pill, capsule or tablet containing any combination of caffeine and ephedrine sulfate.
- 18.2-250. Possession of controlled substances unlawful.
(A)(a) Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony, except that any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof who violates this section with respect to a cannabimimetic agent is guilty of a Class 1 misdemeanor.
(b) Any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor.
- 18.2-250.1. Possession of marijuana unlawful.
- It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act.
- 18.2-251.4. Defeating drug and alcohol screening tests
- 18.2-255.1. Distribution, sale or display of printed material advertising instruments for use in administering marijuana or controlled substances to minors;
- 18.2-255.2. Prohibiting the sale or manufacture of drugs on or near certain properties; penalty.
B…. if such person proves that he sold such controlled substance or marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance or marijuana to use or become addicted to or dependent upon such controlled substance or marijuana, he is guilty of a Class 1 misdemeanor.
- 18.2-257. Attempts.
(b) Any person who attempts to commit any offense defined in this article or in the Drug Control Act which is a misdemeanor shall be guilty of a Class 2 misdemeanor; provided, however, that any person convicted of attempting to commit a misdemeanor for which a lesser punishment may be imposed may be punished according to such lesser penalty.
- 18.2-258. Certain premises deemed common nuisance; penalty.
- 18.2-258.2. Assisting individuals in unlawfully procuring prescription drugs; penalty.
Unless otherwise specifically authorized by law, any person who, for compensation, knowingly assists another in unlawfully procuring prescription drugs from a pharmacy or other source he knows is not licensed, registered or permitted by the licensing authority of the Commonwealth, any other state or territory of the United States, or the United States, is guilty of a Class 1 misdemeanor…
- 18.2-260. Prescribing, dispensing, etc., drug except as authorized in article and Drug Control Act; violations for which no penalty provided.
It shall be unlawful for any person to prescribe, administer or dispense any drug except as authorized in the Drug Control Act (§ 54.1-3400 et seq.) or in this article. Any person who violates any provision of the Drug Control Act or of this article, for which no penalty is elsewhere specified in this article or in Article 7 (§ 54.1-3466 et seq.) of the Drug Control Act, shall be guilty of a Class 1 misdemeanor.
- 18.2-260.1. Falsifying patient records.
Any person who, with the intent to defraud, falsifies any patient record shall be guilty of a Class 1 misdemeanor.
- 18.2-262. Witnesses not excused from testifying or producing evidence because of self-incrimination.
No person shall be excused from testifying or from producing books, papers, correspondence, memoranda or other records for the Commonwealth as to any offense alleged to have been committed by another under this article or under the Drug Control Act (§ 54.1-3400 et seq.) by reason of his testimony or other evidence tending to incriminate himself, but the testimony given and evidence so produced by such person on behalf of the Commonwealth when called for by the trial judge or court trying the case, or by the attorney for the Commonwealth, or when summoned by the Commonwealth and sworn as a witness by the court or the clerk and sent before the grand jury, shall be in no case used against him nor shall he be prosecuted as to the offense as to which he testifies. Any person who refuses to testify or produce books, papers, correspondence, memoranda or other records, shall be guilty of a Class 2 misdemeanor.
- 18.2-264. Inhaling drugs or other noxious chemical substances or causing, etc., others to do so.
However, please note that fourth circuit has taken negative treatment for the Carachuri-Rosendo v. Holder case. The precedent followed by Fourth circuit is Jones and a, both these cases state that to determine whether a conviction is for a crime punishable by a prison term exceeding one year, the court should consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. The common sense approach in interpretation as taken by the Supreme Court in Carachuri-Rosendo v. Holder has not been followed by the Fourth circuit precedents decisions and have held that for an offense to be considered as felony, the court should consider the term of punishment imposed by the relevant statute and not the term of imprisonment for which the Defendant was actually punished.
Relevant holdings from fourth circuit:
In United States v. Hopkins, No. 5:10-CR-261-1-FL, 2010 WL 4974082, at *3 (E.D.N.C. Oct. 21, 2010), report and recommendation adopted, No. 5:10-CR-261-FL-1, 2010 WL 4974901 (E.D.N.C. Nov. 30, 2010), court observed as follows,
Moreover, the Fourth Circuit recognized as late as June 29 2010 that Jones and Harp remain binding circuit precedent. See United States v. Champion, 2010 WL 2512325, at *1 (4th Cir. June 23, 2010)(unpublished); United States v. Perry, 2010 WL 2512339, at *1 (4th Cir. June 23, 2010)(unpublished); United States v. Summers, 361 F. App’x 539, 541 (4th Cir.2010) (unpublished); United States v. Short, 2010 WL 2640475, at *2 (4th Cir. June 29, 2010). Thus, the Fourth Circuit held that Harp is still good law even after Carachuri–Rosendo was published and Simmons, Watson, Williams, and Smith were remanded. Although the Fourth Circuit has since granted rehearings in Perry and Champion, unless and until the Fourth Circuit overrules Harp, it continues to be binding precedent. Therefore, “although it remains possible that the Fourth Circuit (or the Supreme Court) may revisit or overrule Harp and Jones, until that happens, those cases bind this Court.” United States v. Austin, 2010 WL 3895781, *3 (W.D.N.C. September 30, 2010). See also, United States v. Luviano–Vega, 2010 WL 3732137, *4 (E.D.N.C. September 20, 2010)(“the suggestion that the Fourth Circuit will find that Carachuri–Rosendo changed Fourth Circuit precedent is premature”). Accordingly, Defendant’s indictment should not be dismissed.
In United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)
Harp maintains that because the specific facts of his case did not provide any basis for imposition of a sentence exceeding one year, his prior conviction was not for an offense punishable by a term of imprisonment of more than one year. He explains that although the maximum aggravated punishment for possession with the intent to distribute marijuana, a Class I felony, is 15 months, the maximum non-aggravated punishment is only 12 months. See N.C. Gen.Stat. § 15A–1340.17(c), (d) (LexisNexis 2003). But this court has already rejected such an individualized analysis in United States v. Jones, 195 F.3d 205 (4th Cir.1999), in construing statutory language essentially identical to the language of § 4B1.2(b). In Jones, we held, in the context of a felon-in-possession-of-firearm conviction, see 18 U.S.C.A. § 922(g)(1) (West 2000), that a prior North Carolina conviction was for “a crime punishable by imprisonment for a term exceeding one year,” id., if any defendant charged with that crime could receive a sentence of more than one year. See Jones, 195 F.3d at 206–07. In so doing, we reasoned:
[I]n § 922(g)(1), “punishable” is an adjective used to describe “crime.” As such, it is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct. Congress could have written § 922(g)(1) differently had it intended to focus on the individual in particular rather than the crime for which the individual was convicted. Instead of the phrase, “individual convicted … of a crime punishable by imprisonment for a term exceeding one year,” Congress could have used the phrase, “individual punished by imprisonment for a term exceeding one year” or even “individual sentenced for imprisonment for a term exceeding one year.”
Id. at 207 (internal quotation marks omitted) (alterations in original). Thus, to determine whether a conviction is for a crime punishable by a prison term exceeding one year, Jones dictates that we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. See id. at 206–08.
In Harp, the court held that to determine whether a conviction is for a crime punishable by a prison term exceeding one year, Jones dictates that we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.
In United States v. Jones, 195 F.3d 205, 206–07 (4th Cir. 1999),
Jones, recognizing that what matters for purposes of section 922(g) is what a defendant could have received for his offense of conviction, argues that the maximum he could have received was twelve months. That is, if the court had determined that there were aggravating factors present, Jones’ minimum sentence could have been as high as 10 months within the H-II cell, in which event the corresponding maximum *207 sentence would have been 12 months. Therefore, Jones argues, he was not “convicted of a crime punishable by imprisonment for a term exceeding one year,” and thus the indictment should have been dismissed. To Jones, the fact that the maximum imprisonment time for a crime classified in row H is 30 months is irrelevant.
Jones’ theory of the meaning of section 922 accords with neither the language of section 922(g)(1) nor North Carolina judicial practice. Section 922(g)(1) requires only that the crime be punishable by a term exceeding one year. As the Supreme Court recognized in Dickerson v. New Banner Institute, 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), “[i]t was plainly irrelevant to Congress whether the individual in question actually receives a prison term; the statute imposes disabilities on one convicted of ‘a crime punishable by imprisonment for a term exceeding one year.’
If you need the help of a Virginia criminal/immigration lawyer with this type of an issue in Fairfax, City of Fairfax, Prince William (Manassas), Fauquier (Warrenton), Loudoun (Leesburg), Caroline, Stafford, Spotsylvania, Chesterfield, Henrico, Arlington, Richmond, Alexandria, Warren (Front Royal), Clarke, Shenandoah, King George, Charles City, Frederick, Fredericksburg, Gloucester, Hanover, Hopewell, James City, King & Queen, King William, New Kent, Newport News, Petersburg, Prince George, Rappahannock or York, call our law firm immediately for help and speak to one of our Virginia criminal/immigration lawyers about your options. C