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December 5, 2006

Why Lopez is a big deal

A commentor here and FPD Steve Sady have effectively pointed out that I was quite wrong to suggest that today's SCOTUS decision in Lopez v. Gonzales might not be a big deal (basics here).  As Steve explains in this post, the Supreme Court has previously "said that the definition of 'crime of violence' under the immigration statute and 'aggravated felony' had to have the same meaning in both sentencing and immigration contexts."  Consequently, for complex reasons Steve details in his post, Lopez is actually a pretty big sentencing case because it reverses bad guidelines sentencing law in nearly every circuit.

UPDATE:  How Appealing has now collected newspaper coverage of Lopez here.

December 5, 2006 at 06:37 PM | Permalink


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» Why Lopez matters from Appellate Law
According to the 9th Circuit Blog, although an immigration case on its face, Lopez reveres the law in just about every circuit regarding what constitutes an aggravated felony, and therefore “that state convictions for simple drug possession, whether fe... [Read More]

Tracked on Dec 6, 2006 12:47:57 PM


Note that the "crime of violence" portion of "aggravated felony" at issue in Leocal is paragraph (43)(F) and this case involves (43)(B).

Posted by: Kent Scheidegger | Dec 5, 2006 6:50:39 PM


I don't see what difference it makes. Footnote 8 in Leocal stands for the broader proposition that statutes which have both immigration and criminal applications should be interpreted consistently in both contexts. And like Lopez, Leocal involved a cross-reference in 1101(a)(43) that incorporates definitions found in Title 18. Are you suggesting that the rule of construction in Leocal shouldn't apply to 1101(a)(43)(B)?

Posted by: Brad | Dec 5, 2006 10:44:49 PM

What is the implication for defendants convicted under 21 USC 841 who are subject to a doubling of the minimum mandatory if notice is given under 21 USC 851? It would seem that the definition of "felony drug offense" in section 841 might be prone to the same interpretation. If this were indeed the case, this decision could have a tremendous impact on plea negotiations in minimum mandatory drug offenses.

Posted by: Gogigantes | Dec 6, 2006 11:54:19 AM

Doubtful that the _Lopez_ holding will leach over in the 841, as 841 speaks in terms of "prior conviction for a felony drug offense." Section 802(13) defines felony as "any Federal or State offense classified by applicable Federal or State law as a felony." Much much clearer than the 924(c)(2) language at issue in _Lopez_.

Posted by: JDB | Dec 6, 2006 3:48:32 PM

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