Carachuri-Rosendo v. Holder , 130 S. Ct. 2577 ( 2010 )


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  • (Slip Opinion)              OCTOBER TERM, 2009                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    CARACHURI-ROSENDO v. HOLDER, ATTORNEY
    GENERAL
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
    THE FIFTH CIRCUIT
    No. 09–60. Argued March 31, 2010—Decided June 14, 2010
    Petitioner, a lawful permanent resident of the United States, faced de
    portation after committing two misdemeanor drug offenses in Texas.
    For the first, possession of a small amount of marijuana, he received
    20 days in jail. For the second, possession without a prescription of
    one antianxiety tablet, he received 10 days. Texas law, like federal
    law, authorized a sentencing enhancement if the State proved that
    petitioner had been previously convicted of a similar offense, but
    Texas did not seek such an enhancement here. After the second con
    viction, the Federal Government initiated removal proceedings. Peti
    tioner conceded that he was removable, but claimed that he was eli
    gible for discretionary cancellation of removal under the Immigration
    and Nationality Act (INA) because he had not been convicted of any
    “aggravated felony,” 
    8 U.S. C
    . §1229b(a)(3). Section 1101(a)(43)(B)
    defines that term to include, inter alia, “illicit trafficking in a con
    trolled substance . . . including a drug trafficking crime” as defined in
    1
    8 U.S. C
    . §924(c), which, in turn, defines a “drug trafficking crime”
    as a “felony punishable under,” inter alia, “the Controlled Substances
    Act (
    21 U.S. C
    . 801 et seq.).” A felony is a crime for which the
    “maximum term of imprisonment authorized” is “more than one
    year.” §3559(a). Simple possession offenses are ordinarily misde
    meanors punishable with shorter sentences, but a conviction “after a
    prior conviction under this subchapter [or] the law of any State . . .
    has become final”—a “recidivist” simple possession offense—is “pun
    ishable” as a “felony” under §924(c)(2) and subject to a 2-year sen
    tence. Only this “recidivist” simple possession category might be an
    “aggravated felony” under 
    8 U.S. C
    . §1101(a)(43). A prosecutor must
    charge the existence of the prior conviction.           See 
    21 U.S. C
    .
    2                 CARACHURI-ROSENDO v. HOLDER
    Syllabus
    §851(a)(1). Notice and an opportunity to challenge its validity,
    §§851(b)–(c), are mandatory prerequisites to obtaining a punishment
    based on the fact of the prior conviction and necessary prerequisites
    to “authorize” a felony punishment, 1
    8 U.S. C
    . §3559(a), for the sim
    ple possession offense at issue.
    Here, the Immigration Judge held that petitioner’s second simple
    possession conviction was an “aggravated felony” that made him in
    eligible for cancellation of removal. The Board of Immigration Ap
    peals and Fifth Circuit affirmed. Relying on the holding in Lopez v.
    Gonzales, 
    549 U.S. 47
    , 56—that to be an “aggravated felony” for im
    migration law purposes, a state drug conviction must be punishable
    as a felony under federal law—the court used a “hypothetical ap
    proach,” concluding that because petitioner’s “conduct” could have
    been prosecuted as a recidivist simple possession under state law, it
    could have also been punished as a felony under federal law.
    Held: Second or subsequent simple possession offenses are not aggra
    vated felonies under §1101(a)(43) when, as in this case, the state con
    viction is not based on the fact of a prior conviction. Pp. 9–19.
    (a) Considering the disputed provisions’ terms and their “common
    sense conception,” 
    Lopez, 549 U.S., at 53
    , it would be counterintui
    tive and “unorthodox” to apply an “aggravated felony” or “illicit traf
    ficking” label to petitioner’s recidivist possession, see 
    id., at 54.
    The
    same is true for his penalty. One does not usually think of a 10-day
    sentence for unauthorized possession of one prescription pill as an
    “aggravated felony.” This Court must be very wary in this case be
    cause the Government seeks a result that “the English language tells
    [the Court] not to expect.” 
    Ibid. Pp. 9–11. (b)
    The Government’s position—that “conduct punishable as a fel
    ony” should be treated as the equivalent of a felony conviction when
    the underlying conduct could have been a felony under federal law—
    is unpersuasive. First, it ignores the INA’s text, which limits the At
    torney General’s cancellation power only when, inter alia, a nonciti
    zen “has . . . been convicted of a[n] aggravated felony.” 
    8 U.S. C
    .
    §1229b(a)(3). Thus, the conviction itself is the starting place, not
    what might have or could have been charged. Under the Controlled
    Substances Act, simple possession offenses carry only a 1-year sen
    tence unless a prosecutor elects to charge the defendant as a recidi
    vist and the defendant receives notice and an opportunity to defend
    against that charge. Here, petitioner’s record of conviction contains
    no finding of the fact of his prior drug offense. An immigration court
    cannot, ex post, enhance the state offense of record just because facts
    known to it would have authorized a greater penalty. The Govern
    ment contends that had petitioner been prosecuted in federal court
    under identical circumstances, he would have committed an “aggra
    Cite as: 560 U. S. ____ (2010)                     3
    Syllabus
    vated felony” for immigration law purposes. But his circumstances
    were not identical to the Government’s hypothesis. And the Govern
    ment’s approach cannot be reconciled with 
    8 U.S. C
    . §1229b(a)(3),
    which requires an “aggravated felony” conviction—not that the non
    citizen merely could have been convicted of a felony but was not.
    Second, the Government’s position fails to effectuate 
    21 U.S. C
    .
    §851’s mandatory notice and process requirements, which have great
    practical significance with respect to the conviction itself and are in
    tegral to the structure and design of federal drug laws. They author
    ize prosecutors to exercise discretion when electing whether to pur
    sue a recidivist enhancement. So do many state criminal codes,
    including Texas’. Permitting an immigration judge to apply his own
    recidivist enhancement after the fact would denigrate state prosecu
    tors’ independent judgment to execute such laws. Third, the Fifth
    Circuit misread Lopez. This Court never used a “hypothetical ap
    proach” in its analysis. By focusing on facts known to the immigra
    tion court that could have but did not serve as the basis for the state
    conviction and punishment, the Circuit’s approach introduces a level
    of conjecture that has no basis in Lopez. Fourth, the Government’s
    argument is inconsistent with common practice in the federal courts,
    for it is quite unlikely that petitioner’s conduct would have been pun
    ished as a felony in federal court. Finally, as the Court noted in Leo
    cal v. Ashcroft, 
    543 U.S. 1
    , 11, n. 8, ambiguities in criminal statutes
    referenced in immigration laws should be construed in the nonciti
    zen’s favor. Notably, here, the question whether petitioner has com
    mitted an “aggravated felony” is relevant to the type of relief he may
    obtain from a removal order, but not to whether he is in fact remov
    able. Thus, any relief he may obtain still depends on the Attorney
    General’s discretion. Pp. 11–18.
    
    570 F.3d 263
    , reversed.
    STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,
    joined. SCALIA, J., and THOMAS, J., filed opinions concurring in the
    judgment.
    Cite as: 560 U. S. ____ (2010)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–60
    _________________
    JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
    ERIC H. HOLDER, JR., ATTORNEY GENERAL
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE FIFTH CIRCUIT
    [June 14, 2010]
    JUSTICE STEVENS delivered the opinion of the Court.
    Petitioner Jose Angel Carachuri-Rosendo, a lawful
    permanent resident who has lived in the United States
    since he was five years old, faced deportation under fed
    eral law after he committed two misdemeanor drug pos
    session offenses in Texas. For the first, possession of less
    than two ounces of marijuana, he received 20 days in jail.
    For the second, possession without a prescription of one
    tablet of a common antianxiety medication, he received 10
    days in jail. After this second offense, the Federal Gov
    ernment initiated removal proceedings against him. He
    conceded that he was removable, but claimed he was
    eligible for discretionary relief from removal under 
    8 U.S. C
    . §1229b(a).
    To decide whether Carachuri-Rosendo is eligible to seek
    cancellation of removal or waiver of inadmissibility under
    §1229b(a), we must decide whether he has been convicted
    of an “aggravated felony,” §1229b(a)(3), a category of
    crimes singled out for the harshest deportation conse
    quences. The Court of Appeals held that a simple drug
    possession offense, committed after the conviction for a
    2                CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    first possession offense became final, is always an aggra
    vated felony. We now reverse and hold that second or
    subsequent simple possession offenses are not aggravated
    felonies under §1101(a)(43) when, as in this case, the state
    conviction is not based on the fact of a prior conviction.
    I
    Under the Immigration and Nationality Act (INA), 66
    Stat. 163, as amended, 
    8 U.S. C
    . §1101 et seq., a lawful
    permanent resident subject to removal from the United
    States may apply for discretionary cancellation of removal
    if, inter alia, he “has not been convicted of any aggravated
    felony,” §1229b(a)(3). The statutory definition of the term
    “aggravated felony” includes a list of numerous federal
    offenses,1 one of which is “illicit trafficking in a controlled
    substance . . . including a drug trafficking crime (as de
    fined in section 924(c) of title 18).” §1101(a)(43)(B). Sec
    tion 924(c)(2), in turn, defines a “drug trafficking crime” to
    mean “any felony punishable under,” inter alia, “the Con
    trolled Substances Act (
    21 U.S. C
    . 801 et seq.).” A felony
    is a crime for which the “maximum term of imprisonment
    authorized” is “more than one year.” 1
    8 U.S. C
    . §3559(a).2
    The maze of statutory cross-references continues. Sec
    tion 404 of the Controlled Substances Act criminalizes
    simple possession offenses, the type of offense at issue in
    this case. But it prescribes punishment for both misde
    meanor and felony offenses. Except for simple possession
    of crack cocaine or flunitrazepam, a first-time simple
    possession offense is a federal misdemeanor; the maxi
    ——————
    1 Theterm “aggravated felony” “applies to an offense . . . whether in
    violation of Federal or State law” (or, in certain circumstances, “the law
    of a foreign country”). 
    8 U.S. C
    . § 1101(a)(43).
    2 The Controlled Substances Act itself defines the term “felony” as
    “any Federal or State offense classified by applicable Federal or State
    law as a felony.” 
    21 U.S. C
    . §802(13). The Government concedes that
    the classification of felonies under 1
    8 U.S. C
    . §3559(a) controls in this
    case. Brief for Respondent 4.
    Cite as: 560 U. S. ____ (2010)                    3
    Opinion of the Court
    mum term authorized for such a conviction is less than
    one year. 
    21 U.S. C
    . §844(a). However, a conviction for a
    simple possession offense “after a prior conviction under
    this subchapter [or] under the law of any State . . . has
    become final”—what we will call recidivist simple posses
    sion3—may be punished as a felony, with a prison sen
    tence of up to two years. Ibid.4 Thus, except for simple
    possession offenses involving isolated categories of drugs
    not presently at issue, only recidivist simple possession
    offenses are “punishable” as a federal “felony” under the
    Controlled Substances Act, 1
    8 U.S. C
    . §924(c)(2). And
    thus only a conviction within this particular category of
    simple possession offenses might, conceivably, be an “ag
    gravated felony” under 
    8 U.S. C
    . §1101(a)(43).
    For a subsequent simple possession offense to be eligible
    for an enhanced punishment, i.e., to be punishable as a
    felony, the Controlled Substances Act requires that a
    prosecutor charge the existence of the prior simple posses
    ——————
    3 Although    §844(a) does not expressly define a separate offense of
    “recidivist simple possession,” the fact of a prior conviction must none
    theless be found before a defendant is subject to a felony sentence.
    True, the statutory scheme comports with Almendarez-Torres v. United
    States, 
    523 U.S. 224
    , 247 (1998), in which we explained that the
    Constitution does not require treating recidivism as an element of the
    offense. In other words, Congress has permissibly set out a criminal
    offense for simple possession whereby a recidivist finding by the judge,
    by a preponderance of the evidence, authorizes a punishment that
    exceeds the statutory maximum penalty for a simple possession offense.
    But the fact of a prior conviction must still be found—if only by a judge
    and if only by a preponderance of the evidence—before a defendant is
    subject to felony punishment. For present purposes, we therefore view
    §844(a)’s felony simple possession provision as separate and distinct
    from the misdemeanor simple possession offense that section also
    prescribes.
    4 The statute provides in relevant part: “Any person who violates this
    subsection may be sentenced to a term of imprisonment of not more
    than 1 year . . . except that if he commits such offense after a prior
    conviction . . . he shall be sentenced to a term of imprisonment for not
    less than 15 days but not more than 2 years . . . .” 
    21 U.S. C
    . §844(a).
    4                CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    sion conviction before trial, or before a guilty plea. See 
    21 U.S. C
    . §851(a)(1).5 Notice, plus an opportunity to chal
    lenge the validity of the prior conviction used to enhance
    the current conviction, §§851(b)–(c), are mandatory pre
    requisites to obtaining a punishment based on the fact of a
    prior conviction.6 And they are also necessary prerequi
    sites under federal law to “authorize” a felony punish
    ment, 1
    8 U.S. C
    . §3559(a), for the type of simple posses
    sion offense at issue in this case.
    Neither the definition of an “illicit trafficking” offense
    under 
    8 U.S. C
    . §1101(a)(43)(B) nor that of a “drug traf
    ficking crime” under 1
    8 U.S. C
    . §924(c)(2) describes or
    references any state offenses. The “aggravated felony”
    definition does explain that the term applies “to an offense
    described in this paragraph whether in violation of Fed
    eral or State law.” §1101(a)(43). But in Lopez v. Gonzales,
    
    549 U.S. 47
    , 56 (2006), we determined that, in order to be
    ——————
    5 This subsection provides: “No person who stands convicted of an
    offense under this part shall be sentenced to increased punishment by
    reason of one or more prior convictions, unless before trial, or before
    entry of a plea of guilty, the United States attorney files an information
    with the court (and serves a copy of such information on the person or
    counsel for the person) stating in writing the previous convictions to be
    relied upon.” §851(a)(1).
    6 We have previously recognized the mandatory nature of these re
    quirements, as have the courts of appeals. See United States v. La-
    Bonte, 
    520 U.S. 751
    , 754, n. 1 (1997) (“We note that imposition of an
    enhanced penalty [for recidivism] is not automatic. . . . If the Govern
    ment does not file such notice [under 
    21 U.S. C
    . §851(a)(1)] . . . the
    lower sentencing range will be applied even though the defendant may
    otherwise be eligible for the increased penalty”); see also, e.g., United
    States v. Beasley, 
    495 F.3d 142
    , 148 (CA4 2007); United States v.
    Ceballos, 
    302 F.3d 679
    , 690–692 (CA7 2002); United States v. Dodson,
    
    288 F.3d 153
    , 159 (CA5 2002); United States v. Mooring, 
    287 F.3d 725
    ,
    727–728 (CA8 2002). Although §851’s procedural safeguards are not
    constitutionally compelled, see 
    Almendarez-Torres, 523 U.S., at 247
    ,
    they are nevertheless a mandatory feature of the Controlled Substances
    Act and a prerequisite to securing a felony conviction under §844(a) for
    a successive simple possession offense.
    Cite as: 560 U. S. ____ (2010)            5
    Opinion of the Court
    an “aggravated felony” for immigration law purposes, a
    state drug conviction must be punishable as a felony
    under federal law. We held that “a state offense consti
    tutes a ‘felony punishable under the Controlled Sub
    stances Act’ only if it proscribes conduct punishable as a
    felony under that federal law.” 
    Id., at 60.
    Despite the fact
    that the Lopez petitioner had been punished as a felon
    under state law—and, indeed, received a 5-year sen
    tence—the conduct of his offense was not punishable as a
    felony under federal law, and this prevented the state
    conviction from qualifying as an aggravated felony for
    immigration law purposes. 
    Id., at 55
    (“Unless a state
    offense is punishable as a federal felony it does not
    count”).
    In the case before us, the Government argues that Cara
    churi-Rosendo, despite having received only a 10-day
    sentence for his Texas misdemeanor simple possession
    offense, nevertheless has been “convicted” of an “aggra
    vated felony” within the meaning of the INA. This is so,
    the Government contends, because had Carachuri-
    Rosendo been prosecuted in federal court instead of state
    court, he could have been prosecuted as a felon and re
    ceived a 2-year sentence based on the fact of his prior
    simple possession offense. Our holding in Lopez teaches
    that, for a state conviction to qualify as an “aggravated
    felony” under the INA, it is necessary for the underlying
    conduct to be punishable as a federal felony. 
    Id., at 60.
    We now must determine whether the mere possibility, no
    matter how remote, that a 2-year sentence might have
    been imposed in a federal trial is a sufficient basis for
    concluding that a state misdemeanant who was not
    charged as a recidivist has been “convicted” of an “aggra
    vated felony” within the meaning of §1229b(a)(3).
    II
    Carachuri-Rosendo was born in Mexico in 1978.          He
    6               CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    came to the United States with his parents in 1983 and
    has been a lawful permanent resident of Texas ever since.
    His common-law wife and four children are American
    citizens, as are his mother and two sisters.
    Like so many in this country, Carachuri-Rosendo has
    gotten into some trouble with our drug laws. In 2004, he
    pleaded guilty to possessing less than two ounces of mari
    juana, a Class B misdemeanor, and was sentenced to
    confinement for 20 days by a Texas court. See App. 19a–
    22a; Tex. Health & Safety Code Ann. §§481.121(a) and
    (b)(1) (West 2003). In 2005, he pleaded nolo contendere to
    possessing less than 28 grams—one tablet—of alprazolam
    (known commercially as Xanax) without a prescription, a
    Class A misdemeanor. See App. 31a–34a; Tex. Health &
    Safety Code Ann. §§481.117(a) and (b). Although Texas
    law, like federal law, authorized a sentencing enhance
    ment if the prosecutor proved that Carachuri-Rosendo had
    been previously convicted of an offense of a similar class,
    the State did not elect to seek an enhancement based on
    his criminal history. App. 32a.
    In 2006, on the basis of Carachuri-Rosendo’s second
    possession offense, the Federal Government initiated
    removal proceedings against him. Appearing pro se before
    the Immigration Judge, Carachuri-Rosendo did not dis
    pute that his conviction for possessing one tablet of Xanax
    without a prescription made him removable,7 but he ap
    plied for a discretionary cancellation of removal pursuant
    to 
    8 U.S. C
    . §1229b(a). Under that statutory provision,
    the Attorney General may cancel an order of removal or
    an order of inadmissibility so long as, inter alia, the non
    citizen “has not been convicted of a[n] aggravated felony.”
    §1229b(a)(3). The Immigration Judge held that peti
    ——————
    7 But for trivial marijuana possession offenses (such as Carachuri-
    Rosendo’s 2004 state offense), virtually all drug offenses are grounds
    for removal under 
    8 U.S. C
    . §1227(a)(2)(B)(i).
    Cite as: 560 U. S. ____ (2010)            7
    Opinion of the Court
    tioner’s second simple possession conviction was an “ag
    gravated felony” that made him ineligible for cancellation
    of removal.
    The Board of Immigration Appeals (BIA) followed Cir
    cuit precedent and affirmed that decision, but it disagreed
    with the Immigration Judge’s legal analysis. In its en
    banc opinion, the BIA ruled that in cases arising in Cir
    cuits in which the question had not yet been decided, the
    BIA would not treat a second or successive misdemeanor
    conviction as an aggravated felony unless the conviction
    contained a finding that the offender was a recidivist.
    In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 387, 391
    (2007).
    The BIA explained that the statutory question is com
    plicated by the fact that “ ‘recidivist possession’ ” is not a
    “discrete offense under Federal law.” 
    Id., at 388.
    While
    most federal offenses are defined by elements that must be
    proved to a jury beyond a reasonable doubt, recidivist
    possession is an “amalgam of elements, substantive sen
    tencing factors, and procedural safeguards.” 
    Id., at 389.
    Section 844(a) defines simple possession by reference to
    statutory elements, but “facts leading to recidivist felony
    punishment, such as the existence of a prior conviction, do
    not qualify as ‘elements’ in the traditional sense.” 
    Ibid. The BIA observed,
    however, that “
    21 U.S. C
    . §851
    precludes a Federal judge from enhancing a drug of
    fender’s sentence on the basis of recidivism absent compli
    ance with a number of safeguards that, among other
    things, serve to protect the right of the accused to notice
    and an opportunity to be heard as to the propriety of an
    increased punishment based on prior convictions.” 
    Ibid. Therefore, these requirements
    “are part and parcel of
    what it means for a crime to be a ‘recidivist’ offense.” 
    Id., at 391.
    “[U]nless the State successfully sought to impose
    punishment for a recidivist drug conviction,” the BIA
    concluded, a state simple possession “conviction cannot
    8               CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    ‘proscribe conduct punishable as’ recidivist possession”
    under federal law. 
    Ibid. On review, the
    Court of Appeals affirmed the BIA’s
    decision in Carachuri-Rosendo’s case, reading our decision
    in Lopez as dictating its outcome. “[I]f the conduct pro
    scribed by the state offense could have been prosecuted as
    a felony” under the Controlled Substances Act, the court
    reasoned, then the defendant’s conviction qualifies as an
    aggravated felony. 
    570 F.3d 263
    , 267 (CA5 2009) (citing
    
    Lopez, 549 U.S., at 60
    ). The court deemed its analysis
    “the hypothetical approach,” a term it derived from its
    understanding of our method of analysis in 
    Lopez. 570 F.3d, at 266
    , and n. 3; see also United States v. Pacheco-
    Diaz, 
    513 F.3d 776
    , 779 (CA7 2008) (per curiam) (employ
    ing the “hypothetical-federal-felony approach”). Under
    this approach, as the Court of Appeals understood it,
    courts “g[o] beyond the state statute’s elements to look at
    the hypothetical conduct a state statute 
    proscribes.” 570 F.3d, at 266
    , n. 3. Accordingly, any “conduct” that “hypo
    thetically” “could have been punished as a felony” “had [it]
    been prosecuted in federal court” is an “aggravated felony”
    for federal immigration law purposes. 
    Id., at 265.
    In
    applying this hypothetical approach, the Court of Appeals
    did not discuss the §851 procedural requirements. In
    stead, it concluded that because Carachuri-Rosendo’s
    “conduct” could have been prosecuted as simple possession
    with a recidivist enhancement under state law—even
    though it was not—it could have also been punished as a
    felony under federal law. Thus, in the Court of Appeals’
    view, his conviction for simple possession under state law,
    without a recidivist enhancement, was an “aggravated
    felony” for immigration law purposes.8
    ——————
    8 Since the Court of Appeals issued its decision in this case, Cara
    churi-Rosendo has been removed. Brief for Respondent 10–11. Neither
    party, however, has suggested that this case is now moot. If Carachuri
    Cite as: 560 U. S. ____ (2010)                     9
    Opinion of the Court
    We granted certiorari to resolve the conflict among the
    Courts of Appeals over whether subsequent simple posses
    sion offenses are aggravated felonies.9 558 U. S. ____
    (2009).
    III
    When interpreting the statutory provisions under dis
    pute, we begin by looking at the terms of the provisions
    and the “commonsense conception” of those terms. 
    Lopez, 549 U.S., at 53
    . Carachuri-Rosendo is ineligible for can
    cellation of removal only if he was “convicted of a[n] ag
    gravated felony,” 
    8 U.S. C
    . §1229b(a), which, in this case,
    could only be a conviction for “illicit trafficking in a con
    trolled substance . . . . including a drug trafficking crime,”
    §1101(a)(43)(B).
    A recidivist possession offense such as Carachuri-
    Rosendo’s does not fit easily into the “everyday under
    standing” of those terms, 
    Lopez, 549 U.S., at 53
    . This
    type of petty simple possession offense is not typically
    thought of as an “aggravated felony” or as “illicit traffick
    ing.” We explained in Lopez that “ordinarily ‘trafficking’
    means some sort of commercial dealing.” 
    Id., at 53–54
    (citing Black’s Law Dictionary 1534 (8th ed. 2004)). And
    just as in Lopez, “[c]ommerce . . . was no part of” Cara
    ——————
    Rosendo was not convicted of an “aggravated felony,” and if he contin
    ues to satisfy the requirements of 
    8 U.S. C
    . §1229b(a), he may still seek
    cancellation of removal even after having been removed. See §1229b(a)
    (“The Attorney General may cancel removal in the case of an alien who
    is inadmissible or deportable from the United States if the alien” meets
    several criteria).
    9 Compare 
    570 F.3d 263
    (CA5 2009) (holding state conviction for
    simple possession after prior conviction for simple possession is a felony
    under the Controlled Substances Act and thus an aggravated felony),
    and Fernandez v. Mukasey, 
    544 F.3d 862
    (CA7 2008) (same), with
    Berhe v. Gonzales, 
    464 F.3d 74
    (CA1 2006) (taking contrary view),
    Alsol v. Mukasey, 
    548 F.3d 207
    (CA2 2008) (same), Gerbier v. Holmes,
    
    280 F.3d 297
    (CA3 2002) (same), and Rashid v. Mukasey, 
    531 F.3d 438
    (CA6 2008) (same).
    10           CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    churi-Rosendo’s possessing a single tablet of Xanax, “and
    certainly it is no element of simple 
    possession.” 549 U.S., at 54
    . As an initial matter, then, we observe that a read
    ing of this statutory scheme that would apply an “aggra
    vated” or “trafficking” label to any simple possession of
    fense is, to say the least, counterintuitive and
    “unorthodox,” 
    ibid. The same is
    true for the type of penalty at issue. We do
    not usually think of a 10-day sentence for the unauthor
    ized possession of a trivial amount of a prescription drug
    as an “aggravated felony.” A “felony,” we have come to
    understand, is a “serious crime usu[ally] punishable by
    imprisonment for more than one year or by death.”
    Black’s Law Dictionary 694 (9th ed. 2009) (hereinafter
    Black’s). An “aggravated” offense is one “made worse or
    more serious by circumstances such as violence, the pres
    ence of a deadly weapon, or the intent to commit another
    crime.” 
    Id., at 75.
    The term “aggravated felony” is unique
    to Title 8, which covers immigration matters; it is not a
    term used elsewhere within the United States Code. Our
    statutory criminal law classifies the most insignificant of
    federal felonies—“Class E” felonies—as carrying a sen
    tence of “less than five years but more than one year.” 1
    8 U.S. C
    . §3559(a)(5). While it is true that a defendant’s
    criminal history might be seen to make an offense “worse”
    by virtue thereof, Black’s 75, it is nevertheless unorthodox
    to classify this type of petty simple possession recidivism
    as an “aggravated felony.”
    Of course, as Justice Souter observed in his opinion for
    the Court in Lopez, Congress, like “Humpty Dumpty,” has
    the power to give words unorthodox 
    meanings. 549 U.S., at 54
    . But in this case the Government argues for a result
    that “the English language tells us not to expect,” so we
    must be “very wary of the Government’s position.” 
    Ibid. Because the English
    language tells us that most aggra
    vated felonies are punishable by sentences far longer than
    Cite as: 560 U. S. ____ (2010)                     11
    Opinion of the Court
    10 days, and that mere possession of one tablet of Xanax
    does not constitute “trafficking,” Lopez instructs us to be
    doubly wary of the Government’s position in this case.10
    IV
    The Government’s position, like the Court of Appeals’
    “hypothetical approach,” would treat all “conduct punish
    able as a felony” as the equivalent of a “conviction” of a
    felony whenever, hypothetically speaking, the underlying
    conduct could have received felony treatment under fed
    eral law. We find this reasoning—and the “hypothetical
    approach” itself—unpersuasive for the following reasons.
    First, and most fundamentally, the Government’s posi
    tion ignores the text of the INA, which limits the Attorney
    General’s cancellation power only when, inter alia, a
    noncitizen “has . . . been convicted of a[n] aggravated
    felony.” 
    8 U.S. C
    . §1229b(a)(3) (emphasis added). The
    text thus indicates that we are to look to the conviction
    itself as our starting place, not to what might have or
    could have been charged. And to be convicted of an aggra
    vated felony punishable as such under the Controlled
    ——————
    10 The Court stated in Lopez that “recidivist possession, see 
    21 U.S. C
    . §844(a), clearly fall[s] within the definitions used by Congress
    in 
    8 U.S. C
    . §1101(a)(43)(B) and 1
    8 U.S. C
    . §924(c)(2), regardless of
    whether these federal possession felonies or their state counterparts
    constitute ‘illicit trafficking in a controlled substance’ or ‘drug traffick
    ing’ as those terms are used in ordinary 
    speech.” 549 U.S., at 55
    , n. 6.
    Our decision today is not in conflict with this footnote; it is still true
    that recidivist simple possession offenses charged and prosecuted as
    such “clearly fall” within the definition of an aggravated felony. What
    we had no occasion to decide in Lopez, and what we now address, is
    what it means to be convicted of an aggravated felony. Lopez teaches
    us that it is necessary that the conduct punished under state law
    correspond to a felony punishable under the Controlled Substances Act
    to be an aggravated felony under §1101(a)(43)(B). But it does not
    instruct as to whether the mere possibility that conduct could be—but
    is not—charged as an offense punishable as a felony under federal law
    is sufficient.
    12               CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    Substances Act, the “maximum term of imprisonment
    authorized” must be “more than one year,” 1
    8 U.S. C
    .
    §3559(a)(5). Congress, recall, chose to authorize only a 1
    year sentence for nearly all simple possession offenses, but
    it created a narrow exception for those cases in which a
    prosecutor elects to charge the defendant as a recidivist
    and the defendant receives notice and an opportunity to
    defend against that charge. See 
    21 U.S. C
    . §851; Part 
    I, supra
    .
    Indisputably, Carachuri-Rosendo’s record of conviction
    contains no finding of the fact of his prior drug offense.
    Carachuri-Rosendo argues that even such a finding would
    be insufficient, and that a prosecutorial charge of recidi
    vism and an opportunity to defend against that charge
    also would be required before he could be deemed “con
    victed” of a felony punishable under the Controlled Sub
    stances Act. In the absence of any finding of recidivism,
    we need not, and do not, decide whether these additional
    procedures would be necessary. Although a federal immi
    gration court may have the power to make a recidivist
    finding in the first instance, see, e.g., Almendarez-Torres
    v. United States, 
    523 U.S. 224
    , 247 (1998), it cannot,
    ex post, enhance the state offense of record just because
    facts known to it would have authorized a greater penalty
    under either state or federal law.11 Carachuri-Rosendo
    ——————
    11 Our decision last Term in Nijhawan v. Holder, 557 U. S. ___ (2009),
    also relied upon by the Government, is not to the contrary. In that
    case, we rejected the so-called categorical approach employed in cases
    like United States v. Rodriquez, 
    553 U.S. 377
    (2008), when assessing
    whether, under 
    8 U.S. C
    . §1101(a)(43)(M)(i), a noncitizen has commit
    ted “an offense that . . . involves fraud or deceit in which the loss to the
    . . . victims exceeds $10,000.” Our analysis was tailored to the “circum
    stance-specific” language contained in that particular subsection of the
    aggravated felony definition. Nijhawan, 557 U. S., at ___ (slip op., at
    8). And we specifically distinguished the “generic” categories of aggra
    vated felonies for which a categorical approach might be appropriate—
    including the “illicit trafficking” provision—from the “circumstance
    Cite as: 560 U. S. ____ (2010)                  13
    Opinion of the Court
    was not actually “convicted,” §1229b(a)(3), of a drug pos
    session offense committed “after a prior conviction . . . has
    become final,” §844(a), and no subsequent development
    can undo that history.12
    The Government contends that if Carachuri-Rosendo
    had been prosecuted in federal court for simple possession
    under 
    21 U.S. C
    . §844(a) under identical circumstances,
    he would have committed an “aggravated felony” for im
    migration law purposes. Tr. of Oral Arg. 36–37. This is
    ——————
    specific” offense at hand. Id., at ___ (slip op., at 6–7, 8). Moreover,
    unlike the instant case, there was no debate in Nijhawan over whether
    the petitioner actually had been “convicted” of fraud; we only consid
    ered how to calculate the amount of loss once a conviction for a particu
    lar category of aggravated felony has occurred.
    12 Linking our inquiry to the record of conviction comports with how
    we have categorized convictions for state offenses within the definition
    of generic federal criminal sanctions under the Armed Career Criminal
    Act (ACCA), 1
    8 U.S. C
    . §924(e). The United States urges that our
    decision in Rodriquez, 
    553 U.S. 377
    , an ACCA case, supports its
    position in this case. Brief for Respondent 29–30. To the extent that
    Rodriquez is relevant to the issue at hand, we think the contrary is
    true. In that decision we considered whether a recidivist finding under
    state law that had the effect of increasing the “maximum term of
    imprisonment” to 10 years, irrespective of the actual sentence imposed,
    made the offense a “serious drug offense” within the meaning of 1
    8 U.S. C
    . §924(e)(1) and therefore an ACCA predicate 
    offense. 553 U.S., at 382
    . We held that a recidivist finding could set the “maximum term
    of imprisonment,” but only when the finding is a part of the record of
    conviction. 
    Id., at 389.
    Indeed, we specifically observed that “in those
    cases in which the records that may properly be consulted do not show
    that the defendant faced the possibility of a recidivist enhancement, it
    may well be that the Government will be precluded from establishing
    that a conviction was for a qualifying offense.” 
    Ibid. In other words,
    when the recidivist finding giving rise to a 10-year sentence is not
    apparent from the sentence itself, or appears neither as part of the
    “judgment of conviction” nor the “formal charging document,” ibid., the
    Government will not have established that the defendant had a prior
    conviction for which the maximum term of imprisonment was 10 years
    or more (assuming the recidivist finding is a necessary precursor to
    such a sentence).
    14           CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    so, the Government suggests, because the only statutory
    text that matters is the word “punishable” in 1
    8 U.S. C
    .
    §924(c)(2): Whatever conduct might be “punishable” as a
    felony, regardless of whether it actually is so punished or
    not, is a felony for immigration law purposes. But for the
    reasons just stated, the circumstances of Carachuri-
    Rosendo’s prosecution were not identical to those hypothe
    sized by the Government. And the Government’s ab
    stracted approach to §924(c)(2) cannot be reconciled with
    the more concrete guidance of 
    8 U.S. C
    . §1229b(a)(3),
    which limits the Attorney General’s cancellation authority
    only when the noncitizen has actually been “convicted of
    a[n] aggravated felony”—not when he merely could have
    been convicted of a felony but was not.
    Second, and relatedly, the Government’s position fails to
    give effect to the mandatory notice and process require
    ments contained in 
    21 U.S. C
    . §851. For federal law
    purposes, a simple possession offense is not “punishable”
    as a felony unless a federal prosecutor first elects to
    charge a defendant as a recidivist in the criminal informa
    tion. The statute, as described in Part 
    I, supra
    , at 3–4,
    speaks in mandatory terms, permitting “[n]o person” to be
    subject to a recidivist enhancement—and therefore, in this
    case, a felony sentence—“unless” he has been given notice
    of the Government’s intent to prove the fact of a prior
    conviction. Federal law also gives the defendant an oppor
    tunity to challenge the fact of the prior conviction itself.
    §§851(b)–(c). The Government would dismiss these proce
    dures as meaningless, so long as they may be satisfied
    during the immigration proceeding.
    But these procedural requirements have great practical
    significance with respect to the conviction itself and are
    integral to the structure and design of our drug laws.
    They authorize prosecutors to exercise discretion when
    electing whether to pursue a recidivist enhancement. See
    United States v. Dodson, 
    288 F.3d 153
    , 159 (CA5 2002)
    Cite as: 560 U. S. ____ (2010)          15
    Opinion of the Court
    (“Whereas the prior version of [§851(a)] made enhance
    ments for prior offenses mandatory, the new statutory
    scheme gave prosecutors discretion whether to seek en
    hancements based on prior convictions”). Because the
    procedures are prerequisites to an enhanced sentence,
    §851 allows federal prosecutors to choose whether to seek
    a conviction that is “punishable” as a felony under §844(a).
    Underscoring the significance of the §851 procedures,
    the United States Attorney’s Manual places decisions
    with respect to seeking recidivist enhancements on
    par with the filing of a criminal charge against a
    defendant. See Dept. of Justice, United States Attor-
    neys’ Manual §9–27.300(B) comment. (1997), online
    at    http://www.justice.gov/usao/eousa/foia_reading_room/
    usam/title9/27mcrm.htm#9-27.300 (as visited June 3,
    2010, and available in Clerk of Court’s case file). (“Every
    prosecutor should regard the filing of an information
    under 
    21 U.S. C
    . §851 . . . as equivalent to the filing of
    charges”).
    Many state criminal codes, like the federal scheme,
    afford similar deference to prosecutorial discretion when
    prescribing recidivist enhancements. Texas is one such
    State. See, e.g., Tex. Penal Code Ann. §§12.42, 12.43
    (West 2003) (recidivist enhancement is available “[i]f it is
    shown on the trial” that defendant was previously con
    victed of identified categories of felonies and misdemean
    ors). And, in this case, the prosecutor specifically elected
    to “[a]bandon” a recidivist enhancement under state law.
    App. 32a (reproducing state judgment). Were we to permit
    a federal immigration judge to apply his own recidivist
    enhancement after the fact so as to make the noncitizen’s
    offense “punishable” as a felony for immigration law pur
    poses, we would denigrate the independent judgment of
    state prosecutors to execute the laws of those sovereigns.
    Third, the Court of Appeals’ hypothetical felony ap
    proach is based on a misreading of our decision in Lopez.
    16            CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    We never used the term “hypothetical” to describe our
    analysis in that case. We did look to the “proscribe[d]
    conduct” of a state offense to determine whether it is
    “punishable as a felony under that federal 
    law.” 549 U.S., at 60
    . But the “hypothetical approach” employed by the
    Court of Appeals introduces a level of conjecture at the
    outset of this inquiry that has no basis in Lopez. It ig
    nores both the conviction (the relevant statutory hook),
    and the conduct actually punished by the state offense.
    Instead, it focuses on facts known to the immigration court
    that could have but did not serve as the basis for the state
    conviction and punishment. As the Sixth Circuit has
    explained, this approach is really a “ ‘hypothetical to a
    hypothetical.’ ” Rashid v. Mukasey, 
    531 F.3d 438
    , 445
    (2008). Not only does the Government wish us to consider
    a fictional federal felony—whether the crime for which
    Carachuri-Rosendo was actually convicted would be a
    felony under the Controlled Substances Act—but the
    Government also wants us to consider facts not at issue in
    the crime of conviction (i.e., the existence of a prior convic
    tion) to determine whether Carachuri-Rosendo could have
    been charged with a federal felony. This methodology is
    far removed from the more focused, categorical inquiry
    employed in Lopez.
    Fourth, it seems clear that the Government’s argument
    is inconsistent with common practice in the federal courts.
    It is quite unlikely that the “conduct” that gave rise to
    Carachuri-Rosendo’s conviction would have been punished
    as a felony in federal court. Under the United States
    Sentencing Guidelines, Carachuri-Rosendo’s recom
    mended sentence, based on the type of controlled sub
    stance at issue, would not have exceeded one year and
    very likely would have been less than 6 months. See
    United States Sentencing Commission, Guidelines Manual
    §2D2.1(a)(3) (Nov. 2009) (base offense level of 4). And as
    was true in Lopez, the Government has provided us with
    Cite as: 560 U. S. ____ (2010)           17
    Opinion of the Court
    no empirical data suggesting that “even a single eager
    Assistant United States Attorney” has ever sought to
    prosecute a comparable federal defendant as a 
    felon. 549 U.S., at 57
    –58. The Government’s “hypothetical” ap
    proach to this case is therefore misleading as well as
    speculative, in that Carachuri-Rosendo’s federal-court
    counterpart would not, in actuality, have faced any felony
    charge.
    Finally, as we noted in Leocal v. Ashcroft, 
    543 U.S. 1
    ,
    11, n. 8 (2004), ambiguities in criminal statutes referenced
    in immigration laws should be construed in the nonciti
    zen’s favor. And here the critical language appears in a
    criminal statute, 1
    8 U.S. C
    . §924(c)(2).
    We note that whether a noncitizen has committed an
    “aggravated felony” is relevant, inter alia, to the type of
    relief he may obtain from a removal order, but not to
    whether he is in fact removable. In other words, to the
    extent that our rejection of the Government’s broad un
    derstanding of the scope of “aggravated felony” may have
    any practical effect on policing our Nation’s borders, it is a
    limited one. Carachuri-Rosendo, and others in his posi
    tion, may now seek cancellation of removal and thereby
    avoid the harsh consequence of mandatory removal. But
    he will not avoid the fact that his conviction makes him, in
    the first instance, removable. Any relief he may obtain
    depends upon the discretion of the Attorney General.
    *      *    *
    In sum, the Government is correct that to qualify as an
    “aggravated felony” under the INA, the conduct prohibited
    by state law must be punishable as a felony under federal
    law. See 
    Lopez, 549 U.S., at 60
    . But as the text and
    structure of the relevant statutory provisions demon
    strate, the defendant must also have been actually con
    victed of a crime that is itself punishable as a felony under
    federal law. The mere possibility that the defendant’s
    18            CARACHURI-ROSENDO v. HOLDER
    Opinion of the Court
    conduct, coupled with facts outside of the record of convic
    tion, could have authorized a felony conviction under
    federal law is insufficient to satisfy the statutory com
    mand that a noncitizen be “convicted of a[n] aggravated
    felony” before he loses the opportunity to seek cancellation
    of removal. 
    8 U.S. C
    . §1229b(a)(3). The Court of Appeals,
    as well as the Government, made the logical error of as
    suming that a necessary component of an aggravated
    felony is also sufficient to satisfy its statutory definition.
    V
    We hold that when a defendant has been convicted of a
    simple possession offense that has not been enhanced
    based on the fact of a prior conviction, he has not been
    “convicted” under §1229b(a)(3) of a “felony punishable” as
    such “under the Controlled Substances Act,” 1
    8 U.S. C
    .
    §924(c)(2). The prosecutor in Carachuri-Rosendo’s case
    declined to charge him as a recidivist. He has, therefore,
    not been convicted of a felony punishable under the Con
    trolled Substances Act.
    The judgment of the Court of Appeals is reversed.
    It is so ordered.
    Cite as: 560 U. S. ____ (2010)            1
    SCALIA, J., concurring in judgment
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–60
    _________________
    JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
    ERIC H. HOLDER, JR., ATTORNEY GENERAL
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE FIFTH CIRCUIT
    [June 14, 2010]
    JUSTICE SCALIA, concurring in the judgment.
    I agree with the Court that Carachuri-Rosendo’s 2005
    conviction for simple possession of a tablet of Xanax in
    violation of Texas law is not a conviction for an “aggra
    vated felony” under 
    8 U.S. C
    . §1101(a)(43)(B). But my
    reasoning is more straightforward than the Court’s, and so
    I concur only in the judgment.
    Under the Immigration and Nationality Act, the Attor
    ney General may cancel the removal of an alien from the
    United States provided the alien “has not been convicted
    of any aggravated felony.” §1229b(a)(3). There is no
    statutory definition of “convicted,” but a “conviction” is
    defined to mean a “formal judgment of guilt of the alien
    entered by a court.” §1101(a)(48)(A). The term “aggra
    vated felony” includes, among many other offenses, “a
    drug trafficking crime (as defined in [1
    8 U.S. C
    . §924(c)]).”
    §1101(a)(43)(B). A “drug trafficking crime” is in turn
    defined as “any felony punishable under the Controlled
    Substances Act.” 1
    8 U.S. C
    . §924(c)(2).
    It could be concluded from the provisions discussed
    above that only a federal conviction for a felony offense
    under the Controlled Substances Act would qualify under
    
    8 U.S. C
    . §1101(a)(43)(B). But the penultimate sentence
    in §1101(a)(43) provides that the statutory definition of
    “aggravated felony” “applies to an offense described in this
    2             CARACHURI-ROSENDO v. HOLDER
    SCALIA, J., concurring in judgment
    paragraph whether in violation of Federal or State law.”
    This language, we have said, confirms that “a state offense
    whose elements include the elements of a felony punish
    able under the [Controlled Substances Act] is an aggra
    vated felony.” Lopez v. Gonzales, 
    549 U.S. 47
    , 57 (2006).
    The conceptual problem in the present case is that the
    only crime defined by 
    21 U.S. C
    . §844(a) of the Controlled
    Substances Act, simple possession of prohibited drugs, is a
    misdemeanor.       That misdemeanor becomes a “felony
    punishable under the Controlled Substances Act” only
    because the sentencing factor of recidivism authorizes
    additional punishment beyond one year, the criterion for a
    felony. We held in Almendarez-Torres v. United States,
    
    523 U.S. 224
    (1998), that recidivism can constitutionally
    be made a sentencing factor rather than an element of the
    crime, despite the fact that it is used to increase the al
    lowable sentence. And we said in Lopez that a “state
    possession crim[e] that correspond[s] to” the “felony viola
    tio[n]” of “recidivist possession” in §844(a) “clearly fall[s]
    within the definitions used by Congress . . . in
    §1101(a)(43)(B) and . . . 
    §924(c)(2).” 549 U.S., at 55
    , n. 6.
    But to say all that is not to say that an alien has been
    “convicted of” an aggravated felony (which is what
    §1229b(a)(3) requires) when he has been convicted of
    nothing more than a second state misdemeanor violation,
    the punishment for which could, because of recidivism, be
    extended beyond one year. Just because, by reason of
    Almendarez-Torres, the federal misdemeanor offense has
    been raised to a felony offense without changing its ele
    ments, solely by increasing its penalty pursuant to a
    recidivist “sentencing factor”; it does not follow that when
    the question is asked whether someone has been “con
    victed of” a state offense that “corresponds” to the federal
    misdemeanor-become-felony, the answer can be sought in
    sentencing factors. A defendant is not “convicted” of sen
    tencing factors, but only of the elements of the crime
    Cite as: 560 U. S. ____ (2010)            3
    SCALIA, J., concurring in judgment
    charged in the indictment. In other words, a misdemeanor
    offense with a sentencing factor that raises its punishment
    to the felony level qualifies for purposes of establishing the
    elements of a “felony punishable under the Controlled
    Substances Act”; but does not qualify for purposes of de
    termining what elements the alien has been “convicted of.”
    Here, Carachuri-Rosendo was only “convicted of” the
    crime of knowing possession of a controlled substance
    without a valid prescription, a Class A misdemeanor
    under Texas law. Tex. Health & Safety Code Ann.
    §§481.117(a) and (b) (West Supp. 2009). Since the ele
    ments of that crime did not include recidivism, the crime
    of his conviction did not “correspond” to the Controlled
    Substances Act felony of possession-plus-recidivism under
    
    21 U.S. C
    . §844(a).
    For these reasons, I concur in the judgment.
    Cite as: 560 U. S. ____ (2010)                   1
    THOMAS, J., concurring in judgment
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 09–60
    _________________
    JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
    ERIC H. HOLDER, JR., ATTORNEY GENERAL
    ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE FIFTH CIRCUIT
    [June 14, 2010]
    JUSTICE THOMAS, concurring in the judgment.
    A plain reading of 1
    8 U.S. C
    . §924(c)(2) identifies two
    requirements that must be satisfied for Carachuri-
    Rosendo’s state conviction to qualify as a “ ‘drug trafficking
    crime’ ” that renders him ineligible for cancellation of
    removal:* “First, the offense must be a felony; second, the
    offense must be capable of punishment under the Con
    trolled Substances Act (CSA).” Lopez v. Gonzales, 
    549 U.S. 47
    , 61 (2006) (THOMAS, J., dissenting). Carachuri-
    Rosendo’s offense of simple possession was “punishable
    under the [CSA],” §924(c)(2), and thus satisfied the second
    requirement, but his crime of conviction in state court was
    only a misdemeanor. Accordingly, that offense does not
    bar him from obtaining cancellation of removal.
    The Fifth Circuit understandably felt constrained by
    this Court’s decision in Lopez to rule otherwise. In Lopez,
    this Court held that “a state offense constitutes a ‘felony
    punishable under the [CSA]’ only if it proscribes conduct
    ——————
    * See 
    8 U.S. C
    . §1229b(a) (permitting cancellation of removal);
    §1229b(a)(3) (barring aliens convicted of an “aggravated felony” from
    cancellation of removal); §1101(a)(43)(B) (defining “aggravated felony”
    as “illicit trafficking in a controlled substance . . . including a drug
    trafficking crime (as defined in [1
    8 U.S. C
    . §924(c)])”); 1
    8 U.S. C
    §924(c)(2) (defining “drug trafficking crime” to mean “any felony pun
    ishable under the Controlled Substances Act”).
    2             CARACHURI-ROSENDO v. HOLDER
    THOMAS, J., concurring in judgment
    punishable as a felony under that federal law.” 
    Id., at 60
    (emphasis added). Though Lopez addressed a felony
    conviction under state law that did not correlate to a
    felony under the CSA, the Court’s rule preordained the
    result in this case:
    “[T]he Court admits that its reading will subject an
    alien defendant convicted of a state misdemeanor to
    deportation if his conduct was punishable as a felony
    under the CSA. Accordingly, even if never convicted
    of an actual felony, an alien defendant becomes eligi
    ble for deportation based on a hypothetical federal
    prosecution.” 
    Id., at 67
    (THOMAS, J., dissenting).
    Today, the Court engages in jurisprudential gymnastics
    to avoid Lopez. I will not contort the law to fit the case.
    Lopez was wrongly decided. But because a proper reading
    of the statutory text, see 
    id., at 60–63,
    supports the result
    the Court reaches today, I concur in the judgment.
    

Document Info

Docket Number: 09-60

Citation Numbers: 177 L. Ed. 2d 68, 130 S. Ct. 2577, 560 U.S. 563, 2010 U.S. LEXIS 4764

Judges: Scalia, Stevens, Thomas

Filed Date: 6/14/2010

Precedential Status: Precedential

Modified Date: 8/3/2023

Authorities (17)

Berhe v. Gonzales , 464 F.3d 74 ( 2006 )

Alsol v. Mukasey , 548 F.3d 207 ( 2008 )

United States v. Cuyler A. Dodson , 288 F.3d 153 ( 2002 )

David Gerbier v. M. Francis Holmes, Acting District ... , 280 F.3d 297 ( 2002 )

Carachuri-Rosendo v. Holder , 570 F.3d 263 ( 2009 )

United States v. Beasley , 495 F.3d 142 ( 2007 )

United States v. Pacheco-Diaz , 513 F.3d 776 ( 2008 )

Fernandez v. Mukasey , 544 F.3d 862 ( 2008 )

Rashid v. Mukasey , 531 F.3d 438 ( 2008 )

United States v. James L. Mooring , 287 F.3d 725 ( 2002 )

united-states-v-alfredo-ceballos-and-alan-martinez-guzman-and-miguel-a , 302 F.3d 679 ( 2002 )

United States v. Detroit Timber & Lumber Co. , 26 S. Ct. 282 ( 1906 )

United States v. LaBonte , 117 S. Ct. 1673 ( 1997 )

Almendarez-Torres v. United States , 118 S. Ct. 1219 ( 1998 )

Leocal v. Ashcroft , 125 S. Ct. 377 ( 2004 )

Lopez v. Gonzales , 127 S. Ct. 625 ( 2006 )

United States v. Rodriquez , 128 S. Ct. 1783 ( 2008 )

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