Moncrieffe v. Holder, No. 11-702; U.S. Supreme Court; opinion by Sotomayor, J.; dissents by Thomas and Alito, JJ.; decided April 23, 2013. On certiorari to the U.S. Court of Appeals for the Fifth Circuit.

Under the Immigration and Nationality Act (INA), a noncitizen convicted 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 imprisonment, 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 under the INA. Pp. 4-22.

(a) Under the categorical approach generally employed to determine 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 noncitizen’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]." Shepard v. United States, 544 U.S. 13, 24. Because this court examines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction "rested upon [nothing] more than the least of th[e] acts" criminalized, before determining 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 violation of the marijuana distribution statute is punishable by "a term of imprisonment of not more than 5 years." However, one of those exceptions, § 841(b)(4), provides that "any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as" a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either remuneration 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" involve 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 merely a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri-Rosendo v. Holder, 560 U.S. —, which recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it maybe 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 noncitizens 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 overburdened immigration courts to conduct precisely the sort of post hoc investigation into the facts of predicate offenses long deemed undesirable, 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 substances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation 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.