« Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world | Main | Georgia now has permission, but not needed pentobarbital, for executing Warren Hill »

April 23, 2013

SCOTUS holds "social sharing" of a little pot not an "aggravated felony" under INA

In a 7-2 opinion handed down this morning in Moncrieffe v. Holder (available here), the Supreme Court explains why a low-level marijuana offense does not automatically mean deportation. Here is the first and last paragraph of the majority opinion (per Justice Sotomayor):

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. §1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country.  The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case.  Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses.  We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana.  We hold it does not....

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.”  Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms.  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S., at 53).  Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding’” of “trafficking,” which “‘ordinarily . . . means some sort of commercial dealing.’”  Carachuri-Rosendo, 560 U.S., at ___ (slip op., at 9) (quoting Lopez, 549 U.S., at 53–54).  Nor is it sensible that a state statute that criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.”  We hold that it may not be.  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.  The contrary judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justices Thomas and Alito both authored separate dissents, though neither garner any companion votes.

April 23, 2013 at 10:32 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS holds "social sharing" of a little pot not an "aggravated felony" under INA:


I think anyone above a 3rd grade education would agree that the governments approach to most things fails common sense approach and even fails the laugh test.

Once again we hold that the Government’s approach defies “the ‘commonsense conception’” of these terms.

Even Scotus has figured this one out..

Posted by: MidWestGuy | Apr 23, 2013 11:31:51 AM

If the Supreme Court splits 7-2 over whether low-level drug distribution mandates deportation, how is a trial court judge and a trial counsel supposed to counsel a defendant about the immigration consequences of his/her plea?

Posted by: tmm | Apr 23, 2013 12:04:03 PM

Folks interested in Moncrieffe may be interested in a summary I posted on crImmigration.com this morning, available here: http://crimmigration.com/2013/04/23/scotus-affirms-categorical-approach-illicit-trafficking-requires-selling.aspx

Posts by the authors of the National Immigrant Justice Center's amicus brief, cited by the majority, will be up on crImmigration.com later this week.

César | crImmigration.com

Posted by: César Cuauhtémoc García Hernández | Apr 23, 2013 12:37:57 PM

so let's see first the federal govt is too fucking stupid to know the diff between a misdemeanor and a felony!

second this is the 3rd time in seven years they have been bench slapped over the difference

sounds like it's time to step three. The next asshole govt fucktard to drag a misdemeanor offence into federal court as a felony is to be SHOT!

Then it MIGHT sink in!

Posted by: rodsmith | Apr 23, 2013 1:47:06 PM

that is so true midwestguy. Now if the courts could just take the next step.

You know

"We now ordered that based on the massive ammounts of evidence from the 1,000's of court cases brought up before us. That the current group of individuals running the legislative and executive branchs of our govt have no fucking clue what they are doing. Therefore we order that within 1 year of this date new elections for all offices will take place. No current holder will be permitted to run!"

time for a clean sweep

Posted by: rodsmith | Apr 23, 2013 1:49:54 PM

No current holder will be permitted to run!" from your post

No pun intended (holder).....Speaking of which, maybe he will go away soon, as well..

Posted by: MidWestGuy | Apr 23, 2013 2:31:29 PM

You have to hand it to Alito, the Court's prosecutor-in-chief; the prosecution's hack. I have to wonder, is it hard for him to be this results-oriented? He's now faulting a guy for failing to prove a negative. Would he ever require the govt. to prove a negative?

Posted by: anon | Apr 23, 2013 4:49:10 PM

Interesting to consider this case alongside the argument today (or was it yesterday?) in Sekhar, another case where the Government is stretching the interpretation of a statutory term past the breaking point. In both cases, the government could actually have obtained the result it wants another way. In Sekhar, there were other statutes other than the Hobbs Act that were a better fit for the facts of the alleged offense. In Moncrieffe, they could have just ordered him deported and oppose voluntary withholding. But they chose to try to fit the round peg in the square whole, either out of laziness or because they think they should be able to do whatever they want, statutes/rule of lenity/fair notice be damned.

Posted by: anon2 | Apr 24, 2013 1:38:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB