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Supreme Court ruling interprets the meaning of a “felony punishable under the Controlled Substances Act”

December 5th, 2006

"The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a “felony punishable under the Controlled Substances Act.” 18 U. S. C. §924(c)(2). We hold it is not." Lopez v. Gonzales (No. 05-547). Argued October 3, 2006—Decided December 5, 2006.

Why does it matter whether an offense is classified as a "felony punishable under the Controlled Substances Act"? Read on.

It matters because a "felony punishable under the Controlled Substances Act" qualifies as an aggravated felony (under 8 U.S.C. §1101(a)(43)(B)).  And an aggravated felony conviction limits the discretionary relief available during removal (also called deportation) procedures.  For example, immigration judges have the discretion, acting on behalf of the Attorney General,  to cancel the removal of an otherwise deportable person under section 240(A) of the Immigration and Nationality Act . But no such discretion exists for a person convicted of an aggravated felony. 

Take the petitioner in this case. Jose Antonio Lopez entered the United States illegally in 1986,  and became a legal permanent resident in 1990. In 1997, he was arrested in South Dakota and plead guilty to aiding and abetting another person’s possession of cocaine. Lopez’s conviction was for helping someone else possess cocaine, which South Dakota law treats as the equivalent of mere possession despite calling it a felony (S.D. Codified Laws §22–3–3, a state felony, §22–42–5). Mere possession is not, however, a felony under the federal Controlled Substance Act (see 21 U.S.C. §844(a)), which requires an element of drug trafficking. 

So, should Lopez’s conviction for mere possession, which qualifies as a felony according to state law but not according to federal law under the Controlled Substance Act, be classified as a "felony punishable under the Controlled Substances Act"?

This seems like an almost ridiculous question. Surely if mere possession does not qualify as a felony under the Controlled Substance Act, it can’t possibly be classified as a "felony punishable under the Controlled Substances Act"? Wait…can it? The government’s position was that it can.

Here’s how. Rather than reading the phrase as one single element ("felony punishable under the Controlled Substances Act"), the government would prefer to create two separate elements. First, the offense must be a felony (under either state or federal law); second, the offense must be capable of punishment under the Controlled Substances Act. This more expansive definition was also preferred by the sole dissenter, Justice Thomas. And under this definition, Lopez’s possession conviction, even if a felony by name only according to South Dakota law, would be both (a) a felony, and (b) capable of punishment under the Controlled Substances Act.  Voilà!

Fortunately, the majority of the Court disagreed, and instead ruled in favor of a more limited definition, holding "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."

This ruling does not mean that Mr. Lopez is free to stay in the United States – he is still removable (deportable) based on his conviction. But, he can now apply for relief from removal and the immigration judge has the discretion to grant that relief thanks to today’s ruling.  The decision to grant or deny relief from removal depends upon a variety of factors,
such as the nature of the removable offense and the alien’s family and
other ties to the United States.

Read the full decision (.pdf, 226.8K).

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