Moncrieffe v Holder: From State Felony to Federal Misdemeanor

 Matthew Kenwrick via flickr

In Moncrieffe v. Holder, the Supreme Court reversed the deportation order for a Jamaican born legal permanent resident. Adrian Moncrieffe pled guilty in a Georgia court to possession with intent to distribute 1.3 g of marijuana. Federal authorities determined that this was an "aggravated felony" and deportation was therefore mandatory. The Supreme Court's 7-2 majority held that, where there is no proof of remuneration and only a small amount of marijuana involved the crime is not an aggravated felony for immigration purposes. Moncrieffe, who was deported to Jamaica and separated from his wife and children, will likely be able to return to this country. The outcome seems right, but the law that got us here is awfully strange.

What is an "Aggravated Felony"?

Non citizens convicted of Aggravated Felonies are deportable and also, as provided by 8 U. S. C. §1229b(a)(3), are ineligible for discretionary relief. The immigration judge and the Attorney general have no choice, the person simply must be deported. Obviously, the analysis turns on how that term is defined. Here are some of the important terms and the statutory definitions:

• Aggravated Felony: 8 U. S. C. §1101(a)(43), defines Aggravated felony to include: "a drug trafficking crime." The section further provides: "The term applies to an offense described in this paragraph whether in violation of Federal or State law."
• A drug trafficking crime: is defined by 18 U.S.C. 924(c)(2) to include "any felony punishable under the Controlled Substances Act" (CSA). Prohibited acts are listed under 21 USC § 841.
• A Felony: is defined by 18 U.S.C. §3559 as an offense where the maximum prison sentence is more than one year.

Moncrieffe's Marijuana Crime

The offense Moncrieffe plead guilty to was a violation of Ga. Code Ann. §16–13–30(j)(1) and it is most certainly a state felony punishable by a minimum of 1 year and a maximum of 5. When arrested, he told officers that he intended to share the marijuana with friends but there was not evidence that he sold drugs. Under a Georgia law that allows more lenient treatment for first time offenders, the Georgia court withheld entering a conviction and required Moncrieffe to complete 5 years of probation after which the case would be dismissed and expunged from his record.

The federal Controlled Substances Act makes possession with intent to distribute a controlled substance a crime. 21 USC § 841(a). If the substance involved is 50 kilograms or less of marijuana, the crime is is punishable by up to 5 years in prison. §841(b)(1)(D).

So it seems pretty clear that this defendant plead guilty to a Georgia State felony, which was a drug trafficking crime punishable under the CSA, constituting illicit trafficking in a controlled substance and an "Aggravated Felony." Why then did the Supreme Court reverse the immigration judge, the Board of Immigration Appeals and the Eleventh Circuit Court of Appeals, all of whom agreed that Moncrieffe's crime was an Aggravated Felony?

When is a Felony Not a Felony?

Aggravated felony includes "any felony punishable under the Controlled Substances Act" and everything turns on those few words from 18 U.S.C §924(c)(2). The Moncrieffe majority construed this language to mean that only state crimes which would have necessarily been charged and sentenced as felonies under the Controlled Substances Act count as aggravated felonies. Lucky for Moncrieffe there is a provision in the CSA at 21 U. S. C. §841(b)(4) which reads:

Notwithstanding paragraph (1)(D) of this subsection [providing a 5 year max for marijuana distribution], any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607of title 18.

Moncrieffe had no prior drug convictions and 21 U. S. C. §844 allows maximum sentences of less that 1 year for first time offenders. 18 U.S.C §3607 allows for dismissal and expungement if a drug possessor sentenced under §844 completes probation with no violations.

The Majority found that, since a Federal court might have treated this conduct as punishable by less than one year in prison, it was not necessarily a felony and did not qualify as an aggravated felony under the INA. Slip p. 9. As stated in the holding: "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, the conviction is not for an aggravated felony under the INA." Slip p. 22.

Other Notable Issues

1. Georgia did Not Enter a Conviction or Impose Sentence

The INA requieres a "conviction" for an aggravated felony and Moncrieffe's Georgia case was resolved in a way that not involve a conviction under state law. Unfortunately, the INA 8 U. S. C. §1101(a)(48)(A) defines "conviction" like this:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Of course, felons can't possess guns either, but it is interesting to note that, for purposes of federal gun prohibitions, there is a very different definition of "conviction." 18 USC § 921(20) defers to the state court definition and makes an exception for expunged crimes.

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter...

So under federal gun law, Moncrieffe's plea deal would not count as a conviction, even though it does for immigration purposes.

2. Moncrieffe Wasn't Advised of Immigration Consequences

It appears that Moncrieffe did have an attorney present for his Georgia plea hearing, but that attorney did not advise him that a guilty plea would trigger removal proceedings. The 2010 Supreme Court decision, Padilla v. Kentucky requires that an attorney advise their client of immigration consequences of a plea and provides that failing to give correct advice is ineffective assistance of counsel. That could have been grounds for reversing the conviction except the Supreme Court decided Chaidez v. United States earlier this term and held that Padilla is not retroactive. Since Moncrieffe's plea occurred before Padilla, the ineffective assistance was no grounds for relief.

3. Apprendi, Shades of Alleyne?

The opinion has some discussion of "sentencing factors" vs "elements of crimes" and, while the distinction was not central to the court holding here, this issue will feature prominently in the decision expected in Alleyne v. United States. In Moncrieffe the government argued that, while the the weight of the drugs and whether money changed hands might result in misdemeanor federal sentencing, these issues are only sentencing factors, not elements of the crime, and should therefor not be considered as part of the aggravated felony analysis.

The majority rejected this argument recognizing that, whatever you call these facts, they effectively change the class of crime and so must be considered. Maybe this signals some willingness to break down that element / sentencing factor distinction. If that reasoning is applied in Alleyne, the Supreme Court might decide that such sentencing factors must be presented to the jury for determination beyond all reasonable doubt.