OPINION OF THE COURT
CARACHURI-ROSENDO V. HOLDER
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-60
JOSE ANGEL CARACHURI-ROSENDO, PETITIONER
v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 14, 2010]
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,[
Footnote
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).[
Footnote 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
possession[
Footnote 3]—may be
punished as a felony, with a prison sentence of up to two years.
Ibid.[Footnote 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).[
Footnote
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.[
Footnote 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 (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. 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
(“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. 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 2003). 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,[
Footnote 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 defined by
elements that must be proved to a jury beyond a reasonable doubt,
recidivist possession is an “amalgam of elements, substantive
sentencing factors, and procedural safeguards.”
Id., at
389. Section 844(a) defines simple possession by reference to
statutory elements, but “facts leading to recidivist felony
punishment, such as the existence of a prior conviction,
do not qualify as ‘elements’ in the traditional sense.”
Ibid.
The BIA observed, however, that “21 U.
S. C. §851 precludes a Federal judge from enhancing a drug
offender’s sentence on the basis of recidivism absent compliance
with a number of safeguards that, among other things, serve to
protect the right of the accused to notice and an opportunity to be
heard as to the propriety of an increased punishment based on prior
convictions.”
Ibid. Therefore, these requirements “are
part and parcel of what it means for a crime to be a ‘recidivist’
offense.”
Id., at 391. “[U]nless the State successfully
sought to impose punishment for a recidivist drug conviction,” the
BIA concluded, a state simple possession “conviction cannot
‘proscribe conduct punishable as’ recidivist possession” under
federal law.
Ibid.
On review, the Court of Appeals affirmed the
BIA’s decision in Carachuri-Rosendo’s case, reading our decision in
Lopez as dictating its outcome. “[I]f the
conduct
proscribed by the state offense could have been prosecuted as a
felony” under the Controlled Substances Act, the court reasoned,
then the defendant’s conviction qualifies as an aggravated felony.
570 F. 3d 263, 267 (CA5 2009) (citing
Lopez, 549 U.
S., at 60). The court deemed its analysis “the hypothetical
approach,” a term it derived from its understanding of our method
of analysis in
Lopez. 570 F. 3d, at 266, and
n. 3; see also
United States v.
Pacheco-Diaz, 513 F. 3d 776, 779 (CA7 2008)
(per
curiam) (employing the “hypothetical-federal-felony
approach”). Under this approach, as the Court of Appeals understood
it, courts “g[o] beyond the state statute’s elements to look at the
hypothetical conduct a state statute proscribes.” 570 F. 3d,
at 266, n. 3. Accordingly, any “conduct” that “hypothetically”
“could have been punished as a felony” “had [it] been prosecuted in
federal court” is an “aggravated felony” for federal immigration
law purposes.
Id., at 265. In applying this hypothetical
approach, the Court of Appeals did not discuss the §851 procedural
requirements. Instead, it concluded that because
Carachuri-Rosendo’s “conduct” could have been prosecuted as simple
possession with a recidivist enhancement under state law—even
though it was not—it could have also been punished as a felony
under federal law. Thus, in the Court of Appeals’ view, his
conviction for simple possession under state law, without a
recidivist enhancement, was an “aggravated felony” for immigration
law purposes.[
Footnote 8]
We granted certiorari to resolve the conflict
among the Courts of Appeals over whether subsequent simple
possession offenses are aggravated felonies.[
Footnote 9] 558 U. S. ____ (2009).
III
When interpreting the statutory
provisions under dispute, we begin by looking at the terms of the
provisions and the “commonsense conception” of those terms.
Lopez, 549 U. S., at 53. Carachuri-Rosendo is ineligible
for cancellation of removal only if he was “convicted of a[n]
aggravated felony,” 8 U. S. C. §1229b(a), which, in this case,
could only be a conviction for “illicit trafficking in a controlled
substance . … including a drug trafficking crime,”
§1101(a)(43)(B).
A recidivist possession offense
such as Carachuri-Rosendo’s does not fit easily into the “everyday
understanding” of those terms,
Lopez, 549 U. S., at 53.
This type of petty simple possession offense is not typically
thought of as an “aggravated felony” or as “illicit trafficking.”
We explained in
Lopez that “ordinarily ‘trafficking’ means
some sort of commercial dealing.”
Id., at 53–54 (citing
Black’s Law Dictionary 1534 (8th ed. 2004)). And just as in
Lopez, “[c]ommerce . . . was no part of”
Carachuri-Rosendo’s possessing a single tablet of Xanax, “and
certainly it is no element of simple possession.” 549 U. S., at 54.
As an initial matter, then, we observe that a reading of this
statutory scheme that would apply an “aggravated” or “trafficking”
label to
any simple possession offense is, to say the
least, counterintuitive and “unorthodox,”
ibid.
The same is true for the type of penalty at
issue. 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 usu[ally] punishable by imprisonment for more
than one year or by death.” Black’s Law Dictionary 694 (9th ed.
2009) (hereinafter Black’s). An “aggravated” offense is one “made
worse or more serious by circumstances such as violence, the
presence of a deadly weapon, or the intent to commit another
crime.”
Id., at 75. The term “aggravated felony” is unique
to Title 8, which covers immigration matters; it is not a term used
elsewhere within the United States Code. Our statutory criminal law
classifies the most insignificant of federal felonies—“Class E”
felonies—as carrying a sentence of “less than five years but more
than one year.” 18 U. S. C. §3559(a)(5). While it is true that
a defendant’s criminal history might be seen to make an offense
“worse” by virtue thereof, Black’s 75, it is nevertheless
unorthodox to classify this type of petty simple possession
recidivism as an “aggravated felony.”
Of course, as Justice Souter observed in his
opinion for the Court in
Lopez, Congress, like “Humpty
Dumpty,” has the power to give words unorthodox meanings. 549 U.
S., at 54. But in this case the Government argues for a result that
“the English language tells us not to expect,” so we must be “very
wary of the Government’s position.”
Ibid. Because the
English language tells us that most aggravated felonies are
punishable by sentences far longer than 10 days, and that mere
possession of one tablet of Xanax does not constitute
“trafficking
,” Lopez instructs us to be doubly
wary of the Government’s position in this case.[
Footnote 10]
IV
The Government’s position, like
the Court of Appeals’ “hypothetical approach,” would treat all
“conduct punishable as a felony” as the equivalent of a
“conviction” of a felony whenever, hypothetically speaking, the
underlying conduct could have received felony treatment under
federal law. We find this reasoning—and the “hypothetical approach”
itself—unpersuasive for the following reasons.
First, and most fundamentally,
the Government’s position ignores the text of the INA, which limits
the Attorney General’s cancellation power only when,
inter
alia, a noncitizen “has . . . been
convicted of a[n]
aggravated felony.” 8 U. S. C. §1229b(a)(3) (emphasis added).
The text thus indicates that we are to look to the conviction
itself as our starting place, not to what might have or could have
been charged. And to be convicted of an aggravated felony
punishable as such under the Controlled Substances Act, the
“maximum term of imprisonment authorized” must be “more than one
year,” 18 U. S. C. §3559(a)(5). Congress, recall, chose to
authorize only a 1-year sentence for nearly all simple possession
offenses, but it created a narrow exception for those cases in
which a prosecutor elects to charge the defendant as a recidivist
and the defendant receives notice and an opportunity to defend
against that charge. See 21 U. S. C. §851; Part I,
supra.
Indisputably, Carachuri-Rosendo’s record of
conviction contains no finding of the fact of his prior drug
offense. Carachuri-Rosendo argues that even such a finding would be
insufficient, and that a prosecutorial charge of recidivism and an
opportunity to defend against that charge also would be required
before he could be deemed “convicted” of a felony punishable under
the Controlled Substances Act. In the absence of any finding of
recidivism, we need not, and do not, decide whether these
additional procedures would be necessary. Although a federal
immigration court may have the power to make a recidivist finding
in the first instance, see
, e.g.,
Almendarez-Torres v.
United States,
523 U. S. 224, 247 (1998), it cannot,
ex post, enhance the state offense of record just
because facts known to it would have authorized a greater penalty
under either state or federal law.[
Footnote 11] Carachuri-Rosendo was not actually
“convicted,” §1229b(a)(3), of a drug possession offense committed
“after a prior conviction . . . has become final,” §844(a), and no
subsequent development can undo that history.[
Footnote 12]
The Government contends that if
Carachuri-Rosendo had been prosecuted in federal court for simple
possession under 21 U. S. C. §844(a) under identical
circumstances, he would have committed an “aggravated felony” for
immigration law purposes. Tr. of Oral Arg. 36–37. This is so, the
Government suggests, because the only statutory text that matters
is the word “punishable” in 18 U. S. C. §924(c)(2): Whatever
conduct might be “punishable” as a felony, regardless of whether it
actually is so punished or not, is a felony for immigration law
purposes. But for the reasons just stated, the circumstances of
Carachuri-Rosendo’s prosecution were not identical to those
hypothesized by the Government. And the Government’s abstracted
approach to §924(c)(2) cannot be reconciled with the more concrete
guidance of 8 U. S. C. §1229b(a)(3), which limits the Attorney
General’s cancellation authority only when the noncitizen has
actually been “convicted of a[n] aggravated felony”—not when he
merely could have been convicted of a felony but was not.
Second, and relatedly, the Government’s
position fails to give effect to the mandatory notice and process
requirements contained in 21 U. S. C. §851. For federal law
purposes, a simple possession offense is not “punishable” as a
felony unless a federal prosecutor first elects to charge a
defendant as a recidivist in the criminal information. The statute,
as described in Part I,
supra, at 3–4, speaks in mandatory
terms, permitting “[n]o person” to be subject to a recidivist
enhancement—and therefore, in this case, a felony sentence—“unless”
he has been given notice of the Government’s intent to prove the
fact of a prior conviction. Federal law also gives the defendant an
opportunity to challenge the fact of the prior conviction itself.
§§851(b)–(c). The Government would dismiss these procedures as
meaningless, so long as they may be satisfied during the
immigration proceeding.
But these procedural requirements have great
practical significance with respect to the conviction itself and
are integral to the structure and design of our drug laws. They
authorize prosecutors to exercise discretion when electing whether
to pursue a recidivist enhancement. See
United States v.
Dodson, 288 F. 3d 153, 159 (CA5 2002) (“Whereas the
prior version of [§851(a)] made enhancements for prior offenses
mandatory, the new statutory scheme gave prosecutors discretion
whether to seek enhancements based on prior convictions”). Because
the procedures are prerequisites to an enhanced sentence, §851
allows federal prosecutors to choose whether to seek a conviction
that is “punishable” as a felony under §844(a). Underscoring the
significance of the §851 procedures, the United States Attorney’s
Manual places decisions with respect to seeking recidivist
enhancements on par with the filing of a criminal charge against a
defendant. See Dept. of Justice, United States Attor- neys’ Manual
§9–27.300(B) comment. (1997), online at
http://www.justice.gov/usao/eousa/foia_reading_room/
usam/title9/27mcrm.htm#9-27.300 (as visited June 3, 2010, and
available in Clerk of Court’s case file). (“Every prosecutor should
regard the filing of an information under 21 U. S. C. §851 . .
. as equivalent to the filing of charges”).
Many state criminal codes, like the federal
scheme, afford similar deference to prosecutorial discretion when
prescribing recidivist enhancements. Texas is one such State. See,
e.g., Tex. Penal Code Ann. §§12.42, 12.43 (West 2003)
(recidivist enhancement is available “[i]f it is shown on the
trial” that defendant was previously convicted of identified
categories of felonies and misdemeanors). And, in this case, the
prosecutor specifically elected to “[a]bandon” a recidivist
enhancement under state law. App. 32a (reproducing state judgment).
Were we to permit a federal immigration judge to apply his own
recidivist enhancement after the fact so as to make the
noncitizen’s offense “punishable” as a felony for immigration law
purposes, we would denigrate the independent judgment of state
prosecutors to execute the laws of those sovereigns.
Third, the Court of Appeals’ hypothetical
felony approach is based on a misreading of our decision in
Lopez. We never used the term “hypothetical” to describe
our analysis in that case. We did look to the “proscribe[d]
conduct” of a state offense to determine whether it is “punishable
as a felony under that federal law.” 549 U. S., at 60. But the
“hypothetical approach” employed by the Court of Appeals introduces
a level of conjecture at the outset of this inquiry that has no
basis in
Lopez. It ignores both the conviction (the
relevant statutory hook), and the conduct actually punished by the
state offense. Instead, it focuses on facts known to the
immigration court that could have
but did not serve as the
basis for the state conviction and punishment. As the Sixth Circuit
has explained, this approach is really a “ ‘hypothetical to a
hypothetical.’ ”
Rashid v.
Mukasey, 531 F.
3d 438, 445 (2008). Not only does the Government wish us to
consider a fictional federal felony—whether the crime for which
Carachuri-Rosendo was actually convicted would be a felony under
the Controlled Substances Act—but the Government also wants us to
consider facts not at issue in the crime of conviction
(
i.e., the existence of a prior conviction) to determine
whether Carachuri-Rosendo
could have been charged with a
federal felony. This methodology is far removed from the more
focused, categorical inquiry employed in
Lopez.
Fourth, it seems clear that the Government’s
argument is inconsistent with common practice in the federal
courts. It is quite unlikely that the “conduct” that gave rise to
Carachuri-Rosendo’s conviction would have been punished as a felony
in federal court. Under the United States Sentencing Guidelines,
Carachuri-Rosendo’s recommended sentence, based on the type of
controlled substance at issue, would not have exceeded one year and
very likely would have been less than 6 months. See United States
Sentencing Commission, Guidelines Manual §2D2.1(a)(3) (Nov. 2009)
(base offense level of 4). And as was true in
Lopez, the
Government has provided us with no empirical data suggesting that
“even a single eager Assistant United States Attorney” has ever
sought to prosecute a comparable federal defendant as a felon. 549
U. S., at 57–58. The Government’s “hypothetical” approach to this
case is therefore misleading as well as speculative, in that
Carachuri-Rosendo’s federal-court counterpart would
not,
in actuality, have faced any felony charge.
Finally, as we noted in
Leocal v.
Ashcroft,
543 U. S. 1, 11, n. 8
(2004), ambiguities in criminal statutes referenced in immigration
laws should be construed in the noncitizen’s favor. And here the
critical language appears in a criminal statute, 18 U. S. C.
§924(c)(2).
We note that whether a noncitizen has
committed an “aggravated felony” is relevant,
inter alia,
to the type of relief he may obtain from a removal order, but not
to whether he is in fact removable. In other words, to the extent
that our rejection of the Government’s broad understanding of the
scope of “aggravated felony” may have any practical effect on
policing our Nation’s borders, it is a limited one.
Carachuri-Rosendo, and others in his position, may now seek
cancellation of removal and thereby avoid the harsh consequence of
mandatory removal. But he will not avoid the fact that his
conviction makes him, in the first instance, removable. Any relief
he may obtain depends upon the discretion of the Attorney
General.
* * *
In sum, the Government is correct
that to qualify as an “aggravated felony” under the INA, the
conduct prohibited by state law must be punishable as a felony
under federal law. See
Lopez, 549 U. S., at 60. But as the
text and structure of the relevant statutory provisions
demonstrate, the defendant must
also have been
actually convicted of a crime that is itself punishable as
a felony under federal law. The mere possibility that the
defendant’s conduct, coupled with facts outside of the record of
conviction, could have authorized a felony conviction under federal
law is insufficient to satisfy the statutory command that a
noncitizen be “convicted of a[n] aggravated felony” before he loses
the opportunity to seek cancellation of removal. 8 U. S. C.
§1229b(a)(3). The Court of Appeals, as well as the Government, made
the logical error of assuming that a necessary component of an
aggravated felony is also sufficient to satisfy its statutory
definition.
V
We hold 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 a recidivist. He has, therefore, not been convicted of a felony
punishable under the Controlled Substances Act.
The judgment of the Court of
Appeals is reversed.
It is so ordered.
Footnote 1
The term “aggravated felony” “applies to an
offense … whether in violation of Federal or State law” (or, in
certain circumstances, “the law of a foreign country”). 8 U.
S. C. § 1101(a)(43).
Footnote 2
The Controlled Substances Act itself defines
the term “felony” as “any Federal or State offense classified by
applicable Federal or State law as a felony.” 21 U. S. C.
§802(13). The Government concedes that the classification of
felonies under 18 U. S. C. §3559(a) controls in this case.
Brief for Respondent 4.
Footnote 3
Although §844(a) does not expressly define a
separate offense of “recidivist simple possession,” the fact of a
prior conviction must nonetheless be found before a defendant is
subject to a felony sentence. True, the statutory scheme comports
with
Almendarez-Torres v.
United States,
523 U. S. 224, 247 (1998), in which we
explained that the Constitution does not require treating
recidivism as an element of the offense. In other words, Congress
has permissibly set out a criminal offense for simple possession
whereby a recidivist finding by the judge, by a preponderance of
the evidence, authorizes a punishment that exceeds the statutory
maximum penalty for a simple possession offense. But the fact of a
prior conviction must still be found—if only by a judge and if only
by a preponderance of the evidence—before a defendant is subject to
felony punishment. For present purposes, we therefore view
§844(a)’s felony simple possession provision as separate and
distinct from the misdemeanor simple possession offense that
section also prescribes.
Footnote 4
The statute provides in relevant part: “Any
person who violates this subsection may be sentenced to a term of
imprisonment of not more than 1 year … except that if he
commits such offense after a prior conviction … he shall be
sentenced to a term of imprisonment for not less than 15 days but
not more than 2 years … .” 21 U. S. C. §844(a).
Footnote 5
This subsection provides: “No person who
stands convicted of an offense under this part shall be sentenced
to increased punishment by reason of one or more prior convictions,
unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and
serves a copy of such information on the person or counsel for the
person) stating in writing the previous convictions to be relied
upon.” §851(a)(1).
Footnote 6
We have previously recognized the mandatory
nature of these requirements, as have the courts of appeals. See
United States v.
LaBonte,
520 U. S. 751, 754, n. 1
(1997) (“We note that imposition of an enhanced penalty [for
recidivism] is not automatic. . . . If the Government does not file
such notice [under 21 U. S. C. §851(a)(1)] . . . the lower
sentencing range will be applied even though the defendant may
otherwise be eligible for the increased penalty”); see also,
e.g.,
United States v.
Beasley, 495
F. 3d 142, 148 (CA4 2007);
United States v.
Ceballos, 302 F. 3d 679, 690–692 (CA7 2002);
United States v.
Dodson, 288 F. 3d 153, 159
(CA5 2002);
United States v.
Mooring, 287
F. 3d 725, 727–728 (CA8 2002). Although §851’s procedural
safeguards are not constitutionally compelled, see
Almendarez-Torres, 523 U. S., at 247, they are
nevertheless a mandatory feature of the Controlled Substances Act
and a prerequisite to securing a felony conviction under §844(a)
for a successive simple possession offense.
Footnote 7
But for trivial marijuana possession offenses
(such as Carachuri-Rosendo’s 2004 state offense), virtually all
drug offenses are grounds for removal under 8 U. S. C.
§1227(a)(2)(B)(i).
Footnote 8
Since the Court of Appeals issued its
decision in this case, Carachuri-Rosendo has been removed. Brief
for Respondent 10–11. Neither party, however, has suggested that
this case is now moot. If Carachuri-Rosendo was not convicted of an
“aggravated felony,” and if he continues to satisfy the
requirements of 8 U. S. C. §1229b(a), he may still seek
cancellation of removal even after having been removed. See
§1229b(a) (“The Attorney General may cancel removal in the case of
an alien who is inadmissible or deportable from the United States
if the alien” meets several criteria).
Footnote 9
Compare 570 F. 3d 263 (CA5 2009)
(holding state conviction for simple possession after prior
conviction for simple possession is a felony under the Controlled
Substances Act and thus an aggravated felony), and
Fernandez v.
Mukasey, 544 F. 3d 862 (CA7
2008) (same), with
Berhe v.
Gonzales, 464
F. 3d 74 (CA1 2006) (taking contrary view),
Alsol v.
Mukasey, 548 F. 3d 207 (CA2 2008) (same),
Gerbier v.
Holmes, 280 F. 3d 297 (CA3 2002)
(same), and
Rashid v.
Mukasey, 531 F. 3d 438
(CA6 2008) (same).
Footnote 10
The Court stated in
Lopez that
“recidivist possession, see 21 U. S. C. §844(a), clearly
fall[s] within the definitions used by Congress in 8 U. S. C.
§1101(a)(43)(B) and 18 U. S. C. §924(c)(2), regardless of
whether these federal possession felonies or their state
counterparts constitute ‘illicit trafficking in a controlled
substance’ or ‘drug trafficking’ as those terms are used in
ordinary speech.” 549 U. S., at 55, n. 6. Our decision today is not
in conflict with this footnote; it is still true that recidivist
simple possession offenses charged and prosecuted as such “clearly
fall” within the definition of an aggravated felony. What we had no
occasion to decide in
Lopez, and what we now address, is
what it means to be
convicted of an aggravated felony.
Lopez teaches us that it is necessary that the conduct
punished under state law correspond to a felony punishable under
the Controlled Substances Act to be an aggravated felony under
§1101(a)(43)(B). But it does not instruct as to whether the mere
possibility that conduct could be—but is not—charged as an offense
punishable as a felony under federal law is sufficient.
Footnote 11
Our decision last Term in
Nijhawan
v.
Holder, 557 U. S. ___ (2009), also relied upon by the
Government, is not to the contrary. In that case, we rejected the
so-called categorical approach employed in cases like
United
States v.
Rodriquez,
553 U. S. 377 (2008), when assessing
whether, under 8 U. S. C. §1101(a)(43)(M)(i), a noncitizen has
committed “an offense that . . . involves fraud or deceit in which
the loss to the . . . victims exceeds $10,000.” Our analysis was
tailored to the “circumstance-specific” language contained in that
particular subsection of the aggravated felony definition.
Nijhawan, 557 U. S., at ___ (slip op., at 8). And we
specifically distinguished the “generic” categories of aggravated
felonies for which a categorical approach might be
appropriate—including the “illicit trafficking” provision—from the
“circumstance-specific” offense at hand.
Id., at ___ (slip
op., at 6–7, 8). Moreover, unlike the instant case, there was no
debate in
Nijhawan over whether the petitioner actually
had been “convicted” of fraud; we only considered how to calculate
the amount of loss once a conviction for a particular category of
aggravated felony has occurred.
Footnote 12
Linking our inquiry to the record of
conviction comports with how we have categorized convictions for
state offenses within the definition of generic federal criminal
sanctions under the Armed Career Criminal Act (ACCA), 18 U.
S. C. §924(e). The United States urges that our decision in
Rodriquez,
553 U. S. 377, an ACCA case, supports
its position in this case. Brief for Respondent 29–30. To the
extent that
Rodriquez is relevant to the issue at hand, we
think the contrary is true. In that decision we considered whether
a recidivist finding under state law that had the effect of
increasing the “maximum term of imprisonment” to 10 years,
irrespective of the actual sentence imposed, made the offense a
“serious drug offense” within the meaning of 18 U. S. C.
§924(e)(1) and therefore an ACCA predicate offense. 553 U. S., at
382. We held that a recidivist finding could set the “maximum term
of imprisonment,” but only when the finding is a part of the record
of conviction.
Id., at 389. Indeed, we specifically
observed that “in those cases in which the records that may
properly be consulted do not show that the defendant faced the
possibility of a recidivist enhancement, it may well be that the
Government will be precluded from establishing that a conviction
was for a qualifying offense.”
Ibid. In other words, when
the recidivist finding giving rise to a 10-year sentence is not
apparent from the sentence itself, or appears neither as part of
the “judgment of conviction” nor the “formal charging document,”
ibid., the Government will not have established that the
defendant had a prior conviction for which the maximum term of
imprisonment was 10 years or more (assuming the recidivist finding
is a necessary precursor to such a sentence).
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