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Supreme Court Limits Deportation When Client Merely Possessed Small Amount of Marijuana

Kish Law LLC

Here in Georgia a Defendant was stopped by the police, who thereafter found 1.3 grams of marijuana. Because of our State’s relatively harsh drug laws, he was forced to plead guilty to drug distribution, although his lawyers were able to get the conviction expunged if the Defendant successfully completed a period of probation. However, the Defendant was not a U.S. Citizen. Two years later, immigration authorities threw him into custody to begin deportation proceedings. After a fight that took several more years, the United States Supreme Court yesterday held that this man was not automatically subject to deportation. The Supreme Court said that not all marijuana distribution offenses rise to the level of being an “aggravated felony”, which in the immigration context means that the person is just about automatically deportable. The case is Moncrieffe v. Holder.

Mr. Moncrieffe is originally from Jamaica, but has legally lived here in the U.S. for many years. His lawyers faced the same dilemma we face when representing aliens accused of crimes, the question of whether a guilty plea might make the person subject to deportation (or “removal” as the term is now called). Like many people, Mr. Moncrieffe seemed ready to accept a deal that called for no jail time and expungement. Little did he know that the feds wanted to kick him out of the country for this relatively minor offense.

Under the immigration laws, a drug distribution crime falls into the category of “aggravated felonies”. These more serious crimes make it almost impossible for an alien to avoid removal once the immigration authorities start their machinery in that direction. Pursuant to the immigration laws, a noncitizen convicted of an “aggravated felony” is not only deportable, but also is not eligible for discretionary relief. Under the immigration laws, an “aggravated felony” includes anything that is the “illicit trafficking in a controlled substance.” To understand yesterday’s ruling, it is also important to realize that pursuant to the federal drug laws, marijuana distribution is a felony, but if it only involves “small amounts” that are distributed for no remuneration, then the offense is merely a misdemeanor.

The emerging star of this Supreme Court Term, Justice Sonia Sotomayor, wrote for the majority in the 7-2 opinion. Justice Sotomayor noted that under Georgia law, marijuana distribution encompasses a range of conduct from social sharing to distribution of larger amounts. She also noted an issue that has regularly bedeviled the federal courts: how to categorize a person’s prior offenses. Over the recent decade, the Court seems to be inclined to use something called the “categorical” approach. Under this analysis, courts examine what the state conviction necessarily involved and not the facts underlying the case. In using this approach, the federal court assessing the impact of a prior conviction presumes that the conviction rested upon nothing more than the least of the acts criminalized. After using this “least serious version of the crime” approach, a judge is then supposed to determine whether even those acts are encompassed by the generic federal offense that is similar to the state crime at issue.

Justice Sotomayor then turned to how drug offenses are analyzed to see if they fall into the “aggravated felony” pigeonhole. She said that a state drug offense must meet two conditions: it must proscribe conduct that is an offense under the federal drug laws, and the federal drug laws must “necessarily” prescribe felony punishment for that conduct. Although possession of marijuana with intent to distribute is clearly a federal crime, as noted above it turns into a misdemeanor when it involves only a small amount distributed for no remuneration. The Georgia drug distribution statute includes people (like Mr. Moncrieffe here) who had small amounts of pot with no desire to be paid for sharing their stash. Using the categorical approach, federal courts must assume the least serious version of the crime, and therefore violation of this statute cannot be the “aggravated felony” that causes almost automatic deportation.

Again, this kind of case reveals the difficulty in defending clients who are not citizens. It also shows the problem in dealing with seemingly minor drug cases. People need to be careful when hiring lawyers for such matters, to make sure their attorney is up on the law and possible consequences of a conviction.

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