Any Felony Punishable [As a Felony] Under the CSA

Lopez v. Gonzales

The Immigration and Nationality Act (INA) enjoins discretionary relief from deportation for those convicted of “illicit trafficking,” defined to include “aggravated felonies,” itself encompassing a crime punishable under the Controlled Substances Act (CSA), and which is a felony under either Federal or State law. Jose Lopez was convicted of a State-Law felony for helping another posses cocaine, and was deported, a federal misdemeanor. The question here is whether a federal misdemeanor can constitute an aggravated felony via State law for the purposes of the INA

The Government argues that since it is only necessary that the “illicit trafficking” be punishable under the CSA, it need not be a felony. “Trafficking” as a term generally implies commerce, not simple possession which a handful of states classify as a felony. Congress did, however, classify some simple possession cases (possession of ingredients, recidivism, etc) as federal felonies. The dissent suggests that these are merely instances of the inclusion of every drug-offense in the “illicit trafficking” definition. On the other hand, when defining a crime punishable by the CSA, Congress neglected to include references to State law, as it added elsewhere. The Court is not persuaded by suggestions that “punishable under the CSA” does not read “punishable as a felony,” in order to allow inclusion of State law felonies, since it is equally likely that the wording is meant to include crimes which constitute federal felonies, though not prosecuted as a such, or as crimes with a federal-felony counterpart.

Why is the best stuff always in the footnotes (oh, right). The phrase “felony punishable under the [CSA]” is taken from Title 18 and incorporated into “aggravated felony,” which would allow it to be prosecuted in a court of the United States, albeit, at a misdemeanor level – something never attempted while the phrase was in Title 18.

Finally, the Court points to disuniformity, and the ability of States to supplant the judgment of Congress in this area by providing a anomalous definition of felony, or punishment of possession. The dissent argues that the determination is for the convicting jurisdiction, as per the language “conviction” for an “aggravated felony,” suggesting that “conviction” is meant in the past rather than passive tense.

JusticeThomas, dissenting: To be deportable Lopez’ offense must 1) be a felony, and 2) be punishable under the CSA. South Dakota punishes Lopez’ crime as a felony, and it could have been punished under the CSA. Interpreting the law to include the limitation that the crime must be a federal felony would make such designations elsewhere superfluous.

“In Raich, the court fell into the very trap it purports to identify today by ‘turn[ing] simple possession into [commerce], just what the English language tell us not to expect” (for those with short memories). And just to be even-handed, I hope Justice Thomas remembers this line: “we must interpret what Congress actually wrote, not what it could have written.”

Finally, Justice Thomas argues that Congress would equally subject its judgment to be second-guessed by state laws that classify drug crimes more lightly, and in cases where a defendant is deported for conviction of a crime that could have been, but in fact was not tried as, a federal felony.