From Lawyers USA:
Second or subsequent simple possession offenses are not aggravated felonies under the Immigration and Nationality Act when, as in this case, the state conviction is not based on the fact of a prior conviction, the U.S. Supreme Court has ruled.
The case involves a permanent U.S. resident from Mexico who pleaded guilty to possession of a marijuana joint – a misdemeanor – in 2004. In 2005 he pleaded guilty to illegal possession of one Xanax tablet without a prescription – another misdemeanor.
Although the defendant could have been prosecuted under a recidivism statute that would have elevated the second charge to a felony, the prosecutor chose not to seek an enhancement.
The defendant then received notice of removal proceedings. At a hearing, an immigration law judge held that he was subject to deportation. The judge reasoned that the second conviction qualified as an “aggravated felony” under the Immigration and Nationality Act because it could have justified a felony sentence under the Controlled Substances Act. (The INA authorizes deportation for anyone convicted of a crime “punishable” under the CSA.)
The defendant appealed to the Board of Immigration Appeals and ultimately to the 5th Circuit, which both affirmed.
The Supreme Court granted certiorari in the case.
In a unanimous decision written by Justice John Paul Stevens, the Court reversed.
“We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an ‘aggravated felony.’ A ‘felony,’ we have come to understand, is a ‘serious crime us[ally] punishable by imprisonment for more than one year or by death,” Stevens wrote, quoting Black’s Law Dictionary.
Stevens also noted that the defendant’s “record of conviction contains no finding of the fact of his prior drug offense. …
“In the absence of any finding of recidivism, we need not, and do not, decide whether these additional procedures would be necessary,” Stevens wrote.