Welcome to the Minnesota Supreme Court’s summer coffee break. We’ll do some end-of-the-term analysis, including an update of our statistical summary, later this summer.
SCOTUS Softening: Drugs & Deportation
In the meantime, the United States Supreme Court has decided Carachuri-Rosendo v. Holder, a case of some note for the criminal defense bar in the wake of Padilla v. Kentucky. The facts of the case are fused into the holding, which makes articulating it a bit cumbersome. Loosely, when a second or subsequent state court conviction for simple drug possession is not based on the prior, it does not necessarily constitute an aggravated felony for purposes of immigration law.
Carachuri-Rosendo, a lawful permanent resident of the United States, was convicted in Texas state court for two offenses that Texas law classified as misdemeanors: first, for possession of a small amount of marijuana, for which he received twenty days in jail; and later, for possession without a prescription of one Xanax tablet, for which he received ten days. Texas law, like federal law, authorized a sentencing enhancement if the state proved that Carachuri-Rosendo had previously been convicted of a similar offense. However, in the Xanax case, the Texas prosecutors elected not to charge the existence of the prior marijuana possession conviction.
The U.S. government commenced removal proceedings against Carachuri-Rosendo. If Carachuri-Rosendo had been convicted of an aggravated felony per the Immigration and Nationality Act (INA), then his removal (or deportation) was automatic. If he had not been convicted of an aggravated felony, then he was eligible to apply for discretionary relief from removal. The question was whether Mr. Carachuri-Rosendo’s second conviction, which might have been enhanced but wasn’t, qualified as an aggravated felony.
The analysis in Carachuri-Rosendo was driven by an earlier case, Lopez v. Gonzales. Lopez possessed something less than five grams of cocaine. His offense constituted a felony under South Dakota law but not under 21 U.S.C. section 844(a), which establishes the felony threshold for a first offense at five grams. The Lopez Court held that a state offense only constitutes an aggravated felony if it proscribes conduct that is punishable as a felony under federal law.
The government’s argument in Carachuri-Rosendo started from the proposition that, had he been prosecuted in federal court, Carachuri-Rosendo might have been charged and convicted as a felon, and given a two year sentence. The government urged that the Lopez logic be extended to conduct that could have been punished as a felony under federal law — in other words, that the Court adopt the hypothethical mirror image of the Lopez rule, i.e.,
Lopez: State (F) → Federal (M) ≠ Aggravated Felony
Gov’t: State (M) → potential Federal (F) = Aggravated Felony
No thanks, said Justice Stevens for the majority. “The Government’s position . . . would treat all ‘conduct punishable as a felony’ as the equivalent of a ‘conviction’ of a felony whenever, hypothetically speaking, the underlying conduct could have received felony treatment under federal law. We find this reasoning–and the ‘hypothetical approach’ itself–unpersuasive.” The Court particularly stressed that Carachuri-Rosendo had not been convicted of a recidivist offense in Texas. A federal immigration court “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. Carachuri-Rosendo was not actually ‘convicted’ . . . of a drug possession offense committed ‘after a prior conviction . . . has become final,’ §844(a), and no subsequent development can undo that history.”
For the Minnesota defense bar, some good news and some less clearly so
1. The better news, for the defense bar, was probably Lopez. Minnesota law makes felonious some possession offenses that federal law treats as misdemeanors. First-time convictions for these offenses should not be considered aggravated felonies in immigration court. Any controlled substance offense renders the client removable but if the conviction is for something other than an aggravated felony, the client retains eligibility to seek discretionary relief from removal.
2. How to think about Carachuri-Rosendo in light of State v. Bluhm and State v. Turck, the Minnesota Supreme Court and Court of Appeals cases, respectively, which say that the trial court must abide by the mandatory minimum sentences for subsequent controlled substance convictions? It was pivotal to the Carachuri-Rosendo Court that the Texas prosecutor chose not to prove up the prior. Apparently, under Texas law, like federal law, mandatory penalties are not automatic. In the federal system, 21 U.S.C. § 851(a)(1) requires that a defendant be afforded notice and an opportunity to challenge the validity of the prior conviction before the enhanced sentence may be imposed. There is no comparable express procedural safeguard in Minnesota’s chapter 152. Minnesota law does provide an escape hatch from section 152.025’s mandatory penalties; the statute permits a prosecutor to move to disregard them. But this applies only in 5th degree cases, and it is not based on any notion of fair process. It is, I think, an open question in Minnesota whether the mandatory penalties will apply if the state neither charges nor proves them. An unpublished court of appeals case, State v. Garcia, opines that it is a “questionable proposition that a prosecutor may effectively nullify the application of the mandatory minimum sentence provision under Minn. Stat. § 152.023, subd. 3(b), to any given complaint simply by omitting any reference within the complaint to that provision.” Given the relative inflexibility surrounding the application of enhanced drug penalties in Minnesota, Charachuri-Rosendo may represent less welcome news here than in other places.
3. I miss Justice Souter, the writer. This, from the majority opinion in Lopez, is typically economical and droll:
“Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean ‘just what [he chose] it to mean— neither more nor less,’ and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.“