Moncrieffe v. Holder

(Slip Opinion) OCTOBER TERM, 2012 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus MONCRIEFFE v. HOLDER, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 11–702. Argued October 10, 2012—Decided April 23, 2013 Under the Immigration and Nationality Act (INA), a noncitizen con- victed of an “aggravated felony” is not only deportable, 8 U. S. C. §1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” §1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony, i.e., by more than one year’s impris- onment, see 18 U. S. C. §§924(c)(2), 3559(a)(5). A conviction under state law “constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U. S. 47, 60. Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, rejecting his reliance on §841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, §841(b)(1)(D), provides the default punishment for his offense. Held: If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony 2 MONCRIEFFE v. HOLDER Syllabus under the INA. Pp. 4–22. (a) Under the categorical approach generally employed to deter- mine whether a state offense is comparable to an offense listed in the INA, see, e.g., Nijhawan v. Holder, 557 U. S. 29, 33–38, the nonciti- zen’s actual conduct is irrelevant. Instead “the state statute defining the crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v. Duenas-Alvarez, 549 U. S. 183, 186. The state offense is a categorical match only if a conviction of that offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shep- ard v. United States, 544 U. S. 13, 24. Because this Court examines what the state conviction necessarily involved and not the facts un- derlying the case, it presumes that the conviction “rested upon [noth- ing] more than the least of th[e] acts” criminalized, before determin- ing whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U. S. 133, 137. Pp. 4–6. (b) The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. Thus, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct. Possession of marijuana with intent to distribute is clearly a federal crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U. S. C. §841(b)(1)(D) provides that, with certain exceptions, a viola- tion of the marijuana distribution statute is punishable by “a term of imprisonment of not more than 5 years.” However, one of those ex- ceptions, §841(b)(4), provides that “any person who violates [the stat- ute] by distributing a small amount of marihuana for no remunera- tion shall be treated as” a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually ex- clusive categories of punishment for CSA marijuana distribution of- fenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either re- muneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Thus, the conviction did not “necessarily” in- volve facts that correspond to an offense punishable as a felony under the CSA. Pp. 6–9. (c) The Government’s contrary arguments are unpersuasive. The Government contends that §841(b)(4) is irrelevant because it is mere- ly a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri-Rosendo v. Hold- er, 560 U. S. ___, which recognized that when Congress has chosen to Cite as: 569 U. S. ____ (2013) 3 Syllabus define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. The Government also asserts that any marijuana distribution conviction is presumptively a felony, but the CSA makes neither the felony nor the misdemeanor provision the default. The Government’s approach would lead to the absurd result that a conviction under a statute that punishes misdemeanor conduct only, such as §841(b)(4) itself, would nevertheless be a categorical aggravated felony. The Government’s proposed remedy for this anomaly—that noncit- izens be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration—is inconsistent with both the INA’s text and the categorical approach. The Government’s procedure would require the Nation’s overbur- dened immigration courts to conduct precisely the sort of post hoc in- vestigation into the facts of predicate offenses long deemed undesira- ble, and would require uncounseled noncitizens to locate witnesses years after the fact. Finally, the Government’s concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment does not mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled sub- stances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancella- tion of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker. Pp. 9–21. 662 F. 3d 387, reversed and remanded. SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. THOMAS, J., and ALITO, J., filed dissenting opinions. Cite as: 569 U. S. ____ (2013) 1 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–702 _________________ ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, JR., ATTORNEY GENERAL ON WRIT OF CERTIORARI TO THE UNITE