MONCRIEFFE v. HOLDER

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, Washington, 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

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No. 11–702

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ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the fifth circuit

[April 23, 2013]

Justice Sotomayor delivered the opinion of the Court.

The Immigration and Nationality Act (INA), 66Stat. 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.

I A

The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. §1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). §§1158, 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felonies,” then he is not only deportable, §1227(a)(2)(A)(iii), but also ineligible for these discretionary forms of relief. See §§1158(b)(2)(A)(ii), (B)(i); §§1229b(a)(3), (b)(1)(C). 1

The INA defines “aggravated felony” to include a host of offenses. §1101(a)(43). Among them is “illicit trafficking in a controlled substance.” §1101(a)(43)(B). This general term is not defined, but the INA states that it “includ[es] a drug trafficking crime (as defined in section 924(c) of title 18).” Ibid. In turn, 18 U. S. C. §924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statues not relevant here. The chain of definitions ends with §3559(a)(5), which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U. S. 47, 60 (2006) .

B

Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of marijuana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to possession of marijuana with intent to distribute, a violation of Ga. Code Ann. §16–13–30(j)(1) (2007). Under a Georgia statute providing more lenient treatment to first-time offenders, §42–8–60(a) (1997), the trial court withheld entering a judgment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged altogether. 2 App. to Brief for Petitioner 11–15.

Alleging that this Georgia conviction constituted an aggravated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that possession of marijuana with intent to distribute is an offense under the CSA, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D), and thus an aggravated felony. An Immigration Judge agreed and ordered Moncrieffe removed. App. to Pet. for Cert. 14a–18a. The Board of Immigration Appeals (BIA) affirmed that conclusion on appeal. Id., at 10a–13a.

The Court of Appeals denied Moncrieffe’s petition for review. The court rejected Moncrieffe’s reliance upon §841(b)(4), a provision that, in effect, makes marijuana distribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration. It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, §841(b)(1)(D), rather than the misdemeanor provision.” 662 F. 3d 387, 392 (CA5 2011). Because Moncrieffe’s Georgia offense penalized possession of marijuana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” Ibid.

We granted certiorari, 566 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes conduct described by both §841’s felony provision and its misdemeanor provision, such as a statute that punishes all marijuana distribution without regard to the amount or remuneration, is a conviction for an offense that “proscribes conduct punishable as a felony under” the CSA. 3 Lopez, 549 U. S., at 60. We now reverse.

II A

When the Government alleges that a state conviction qualifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA. See, e.g., Nijhawan v. Holder, 557 U. S. 29 –38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S. 183 –187 (2007). Under this approach we look “not to the facts of the particular prior case,” but instead to whether “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 495 U. S. 575 –600 (1990)). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U. S. 13, 24 (2005) (plurality opinion). Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.” United States ex rel. Guarino v. Uhl, 107 F. 2d 399, 400 (CA2 1939) (L. Hand, J.).

Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then determine whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U. S. 133, 137 (2010) ; see Guarino, 107 F. 2d, at 400. But this rule is not without qualification. First, our cases have addressed state statutes that contain several different crimes, each described separately, and we have held that a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or “ ‘some comparable judicial record’ of the factual basis for the plea.” Nijhawan, 557 U. S., at 35 (quoting Shepard, 544 U. S., at 26). Second, our focus on the minimum conduct criminalized by the state statute is not an invitation to apply “legal imagination” to the state offense; there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549 U. S., at 193.

This categorical approach has a long pedigree in our Nation’s immigration law. See Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing judicial decisions back to 1913). The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U. S. C. §1227(a)(2)(A)(iii), not what acts he committed. “[C]onviction” is “the relevant statutory hook.” 4 Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v. Uhl, 210 F. 860, 862 (CA2 1914).

B

The aggravated felony at issue here, “illicit trafficking in a controlled substance,” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. So the categorical approach applies. Ibid. As we have explained, supra, at 2–3, this aggravated felony encompasses all state offenses that “proscrib[e] conduct punishable as a felony under [the CSA].” Lopez, 549 U. S., at 60. In other words, to satisfy the categorical approach, 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.

Moncrieffe was convicted under a Georgia statute that makes it a crime to “possess, have under [one’s] control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” Ga. Code Ann. §16–13–30(j)(1). We know from his plea agreement that Moncrieffe was convicted of the last of these offenses. App. to Brief for Petitioner 11; Shepard, 544 U. S., at 26. We therefore must determine whether possession of marijuana with intent to distribute is “necessarily” conduct punishable as a felony under the CSA.

We begin with the relevant conduct criminalized by the CSA. There is no question that it is a federal crime to “possess with intent to . . . distribute . . . a controlled substance,” 21 U. S. C. §841(a)(1), one of which is marijuana, §812(c). 5 So far, the state and federal provisions correspond. But this is not enough, because the generically defined federal crime is “any felony punishable under the Controlled Substances Act,” 18 U. S. C. §924(c)(2), not just any “offense under the CSA.” Thus we must look to what punishment the CSA imposes for this offense.

Section 841 is divided into two subsections that are relevant here: (a), titled “Unlawful acts,” which includes the offense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates subsection (a)” shall be punished, depending on the circumstances of his crime (e.g., the type and quantity of controlled substance involved, whether it is a repeat offense). 6 Subsection (b)(1)(D) provides that if a person commits a violation of subsection (a) involving “less than 50 kilograms of marihuana,” then “such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years,” i.e., as a felon. But one of the exceptions is important here. Paragraph (4) provides, “Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, 21 U. S. C. §844, which for our purposes means as a misdemeanant. 7 These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, and one not. The only way to know whether a marijuana distribution offense is “punishable as a felony” under the CSA, Lopez, 549 U. S., at 60, is to know whether the conditions described in paragraph (4) are present or absent.

A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remuneration. The presence of remuneration would mean that paragraph (4) is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a conviction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e.g., Taylor v. State, 260 Ga. App. 890, 581 S. E. 2d 386, 388 (2003) (6.6 grams), and that “distribution” does not require remuneration, see, e.g., Hadden v. State, 181 Ga. App. 628, 628–629, 353 S. E. 2d 532, 533–534 (1987). So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony.

III A

The Government advances a different approach that leads to a different result. In its view, §841(b)(4)’s misdemeanor provision is irrelevant to the categorical analysis because paragraph (4) is merely a “mitigating exception,” to the CSA offense, not one of the “elements” of the offense. Brief for Respondent 12. And because possession with intent to distribute marijuana is “presumptive[ly]” a felony under the CSA, the Government asserts, any state offense with the same elements is presumptively an aggravated felony. Id., at 37. These two contentions are related, and we reject both of them.

First, the Government reads our cases to hold that the categorical approach is concerned only with the “elements” of an offense, so §841(b)(4) “is not relevant” to the categorical analysis. Id., at 20. It is enough to satisfy the categorical inquiry, the Government suggests, that the “elements” of Moncrieffe’s Georgia offense are the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), (3) with intent to distribute it. But that understanding is inconsistent with Carachuri-Rosendo, our only decision to address both “elements” and “sentencing factors.” There we recognized that when Congress has chosen to define the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. See 560 U. S., at ___ (slip op., at 3). In that case the relevant CSA offense was simple possession, which “becomes a ‘felony punishable under the [CSA]’ only because the sentencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony.” Id., at ___ (Scalia, J., concurring in judgment) (slip op., at 2). We therefore called the generic federal offense “recidivist simple possession,” even though such a crime is not actually “a separate offense” under the CSA, but rather an “ ‘amalgam’ ” of offense elements and sentencing factors. Id., at ___, and n. 3, ___ (majority opinion) (slip op., at 3, and n. 3, 7).

In other words, not only must the state offense of conviction meet the “elements” of the generic federal offense defined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense establish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predicate offense must necessarily establish those factors as well.

The Government attempts to distinguish Carachuri-Rosendo on the ground that the sentencing factor there was a “narrow” aggravating exception that turned a misdemeanor into a felony, whereas here §841(b)(4) is a narrow mitigation exception that turns a felony into a misdemeanor. Brief for Respondent 40–43. This argument hinges upon the Government’s second assertion: that any marijuana distribution conviction is “presumptively” a felony. But that is simply incorrect, and the Government’s argument collapses as a result. Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach: Section 841(b)(1)(D) makes the crime punishable by five years’ imprisonment “except as provided” in paragraph (4), and §841(b)(4) makes it punishable as a misdemeanor “[n]otwithstanding paragraph (1)(D)” when only “a small amount of marihuana for no remuneration” is involved. (Emphasis added.) The CSA’s text makes neither provision the default. Rather, each is drafted to be exclusive of the other.

Like the BIA and the Fifth Circuit, the Government believes the felony provision to be the default because, in practice, that is how federal criminal prosecutions for marijuana distribution operate. See 662 F. 3d, at 391–392; Matter of Aruna, 24 I. & N. Dec. 452, 456–457 (2008); Brief for Respondent 18–23. It is true that every Court of Appeals to have considered the question has held that a defendant is eligible for a 5-year sentence under §841(b)(1)(D) if the Government proves he possessed marijuana with the intent to distribute it, and that the Government need not negate the §841(b)(4) factors in each case. See, e.g., United States v. Outen, 286 F. 3d 622, 636–639 (CA2 2002) (describing §841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F. 3d 666, 670–671 (CA4 2003) (collecting cases). Instead, the burden is on the defendant to show that he qualifies for the lesser sentence under §841(b)(4). Cf. id., at 671.

We cannot discount §841’s text, however, which creates no default punishment, in favor of the procedural overlay or burdens of proof that would apply in a hypothetical federal criminal prosecution. In Carachuri-Rosendo, we rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ” which examined whether conduct “ ‘could have been punished as a felony’ ‘had [it] been prosecuted in federal court.’ ” 560 U. S., at ___, ___ (slip op., at 8, 11). 8 The outcome in a hypothetical prosecution is not the relevant inquiry. Rather, our “more focused, categorical inquiry” is whether the record of conviction of the predicate offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony. Id., at ___ (slip op., at 16).

The analogy to a federal prosecution is misplaced for another reason. The Court of Appeals cases the Government cites distinguished between elements and sentencing factors to determine which facts must be proved to a jury, in light of the Sixth Amendment concerns addressed in Apprendi v. New Jersey, 530 U. S. 466 (2000) . The courts considered which “provision . . . states a complete crime upon the fewest facts,” Outen, 286 F. 3d, at 638, which was significant after Apprendi to identify what a jury had to find before a defendant could receive §841(b)(1)(D)’s maximum 5-year sentence. But those concerns do not apply in this context. Here we consider a “generic” federal offense in the abstract, not an actual federal offense being prosecuted before a jury. Our concern is only which facts the CSA relies upon to distinguish between felonies and misdemeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution. 9

Because of these differences, we made clear in Carachuri-Rosendo that, for purposes of the INA, a generic federal offense may be defined by reference to both “ ‘elements’ in the traditional sense” and sentencing factors. 560 U. S., at ___, n. 3, ___ (slip op., at 3, n. 3, 7); see also id., at ___ (Scalia, J., concurring in judgment) (slip op., at 3) (describing the generic federal offense there as “the Controlled Substances Act felony of possession-plus-recidivism”). Indeed, the distinction between “elements” and “sentencing factors” did not exist when Congress added illicit drug trafficking to the list of aggravated felonies, Anti-Drug Abuse Act of 1988, 102Stat. 4469–4470, and most courts at the time understood both §841(b)(1)(D) and §841(b)(4) to contain sentencing factors that draw the line between a felony and a misdemeanor. See, e.g., United States v. Campuzano, 905 F. 2d 677, 679 (CA2 1990). Carachuri-Rosendo controls here.

Finally, there is a more fundamental flaw in the Government’s approach: It would render even an undisputed misdemeanor an aggravated felony. This is “just what the English language tells us not to expect,” and that leaves us “very wary of the Government’s position.” Lopez, 549 U. S., at 54. Consider a conviction under a New York statute that provides, “A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, without consideration, [marihuana] of an aggregate weight of two grams or less; or one cigarette containing marihuana.” N. Y. Penal Law Ann. §221.35 (West 2008) (emphasis added). This statute criminalizes only the distribution of a small amount of marijuana for no remuneration, and so all convictions under the statute would fit within the CSA misdemeanor provision, §841(b)(4). But the Government would categorically deem a conviction under this statute to be an aggravated felony, because the statute contains the corresponding “elements” of (1) distributing (2) marijuana, and the Government believes all marijuana distribution offenses are punishable as felonies.

The same anomaly would result in the case of a noncitizen convicted of a misdemeanor in federal court under §§841(a) and (b)(4) directly. Even in that case, under the Government’s logic, we would need to treat the federal misdemeanor conviction as an aggravated felony, because the conviction establishes elements of an offense that is presumptively a felony. This cannot be. “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U. S., at 58.

B

Recognizing that its approach leads to consequences Congress could not have intended, the Government hedges its argument by proposing a remedy: Noncitizens should 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, just as a federal criminal defendant could do at sentencing. Brief for Respondent 35–39. This is the procedure adopted by the BIA in Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 702 (2012), and endorsed by Justice Alito’s dissent, post, at 11–12.

This solution is entirely inconsistent with both the INA’s text and the categorical approach. As noted, the relevant INA provisions ask what the noncitizen was “convicted of,” not what he did, and the inquiry in immigration proceedings is limited accordingly. 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3); see Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 11). The Government cites no statutory authority for such case-specific factfinding in immigration court, and none is apparent in the INA. Indeed, the Government’s main categorical argument would seem to preclude this inquiry: If the Government were correct that “the fact of a marijuana-distribution conviction alone constitutes a CSA felony,” Brief for Respondent 37, then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the Government’s follow-on factfinding procedure. The Government cannot have it both ways.

Moreover, the procedure the Government envisions would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesirable. The categorical approach serves “practical” purposes: It promotes judicial and administrative efficiency by precluding the relitigation of past convictions in minitrials conducted long after the fact. Chambers v. United States, 555 U. S. 122, 125 (2009) ; see also Mylius, 210 F., at 862–863. Yet the Government’s approach would have our Nation’s overburdened immigration courts entertain and weigh testimony from, for example, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “convicted of” the same offense, might obtain different aggravated felony determinations depending on what evidence remains available or how it is perceived by an individual immigration judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 601; see also Mylius, 210 F., at 863.

Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate witnesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory detention, §1226(c)(1)(B), where they have little ability to collect evidence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant Justice Center et al. as Amici Curiae 5–18; Brief for Immigration Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Government’s suggestion that the CSA’s procedures could readily be replicated in immigration proceedings is therefore misplaced. Cf. Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 14–15) (rejecting the Government’s argument that procedures governing determination of the recidivism sentencing factor could “be satisfied during the immigration proceeding”).

The Government defends its proposed immigration court proceedings as “a subsequent step outside the categorical approach in light of Section 841(b)(4)’s ‘circumstance-specific’ nature.” Brief for Respondent 37. This argument rests upon Nijhawan, in which we considered another aggravated felony, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U. S. C. §1101(a)(43)(M)(i). We held that the $10,000 threshold was not to be applied categorically as a required component of a generic offense, but instead called for a “circumstance-specific approach” that allows for an examination, in immigration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.” Nijhawan, 557 U. S., at 38–40. The Government suggests the §841(b)(4) factors are like the monetary threshold, and thus similarly amenable to a circumstance-specific inquiry.

We explained in Nijhawan, however, that unlike the provision there, “illicit trafficking in a controlled substance” is a “generic crim[e]” to which the categorical approach applies, not a circumstance-specific provision. Id., at 37; see also Carachuri-Rosendo, 560 U. S., at ___, n. 11 (slip op., at 12–13, n. 11). That distinction is evident in the structure of the INA. The monetary threshold is a limitation, written into the INA itself, on the scope of the aggravated felony for fraud. And the monetary threshold is set off by the words “in which,” which calls for a circumstance-specific examination of “the conduct involved ‘in’ the commission of the offense of conviction.” Nijhawan, 557 U. S., at 39. Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings. But where, as here, the INA incorporates other criminal statutes wholesale, we have held it “must refer to generic crimes,” to which the categorical approach applies. Id., at 37.

Finally, the Government suggests that the immigration court’s task would not be so daunting in some cases, such as those in which a noncitizen was convicted under the New York statute previously discussed or convicted directly under §841(b)(4). True, in those cases, the record of conviction might reveal on its face that the predicate offense was punishable only as a misdemeanor. But most States do not have stand-alone offenses for the social sharing of marijuana, so minitrials concerning convictions from the other States, such as Georgia, would be inevitable. 10 The Government suggests that even in these other States, the record of conviction may often address the §841(b)(4) factors, because noncitizens “will be advised of the immigration consequences of a conviction,” as defense counsel is required to do under Padilla v. Kentucky, 559 U. S. 359 (2010) , and as a result counsel can build an appropriate record when the facts are fresh. Brief for Respondent 38. Even assuming defense counsel “will” do something simply because it is required of effective counsel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uniformly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged.

In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Government is simply wrong.

C

The Government fears the consequences of our decision, but its concerns are exaggerated. The Government observes that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not require remuneration or any minimum quantity of marijuana. Id., at 26–28. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid “aggravated felony” determinations, purely because their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both).

Escaping aggravated felony treatment does not mean escaping deportation, though. It means only avoiding mandatory removal. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17). Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. 8 U. S. C. §1227(a)(2)(B)(i). At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. §§1158(b), 1229b(a)(1)–(2). But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” post, at 2 (opinion of Alito, J.), just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.” Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17).

In any event, serious drug traffickers may be adjudicated aggravated felons regardless, because they will likely be convicted under greater “trafficking” offenses that necessarily establish that more than a small amount of marijuana was involved. See, e.g., Ga. Code Ann. §16–13–31(c)(1) (Supp. 2012) (separate provision for trafficking in more than 10 pounds of marijuana). Of course, some offenders’ conduct will fall between §841(b)(4) conduct and the more serious conduct required to trigger a “trafficking” statute. Brief for Respondent 30. Those offenders may avoid aggravated felony status by operation of the categorical approach. But the Government’s objection to that underinclusive result is little more than an attack on the categorical approach itself. 11 We prefer this degree of imperfection to the heavy burden of relitigating old prosecutions. See supra, at 15–16. And we err on the side of underinclusiveness because ambiguity in criminal statutes referenced by the INA must be construed in the noncitizen’s favor. See Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 17); Leocal v. Ashcroft, 543 U. S. 1 , n. 8 (2004).

Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like §1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18 U. S. C. §921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U. S., at 193. To defeat the categorical comparison in this manner, a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms. Further, the Government points to §1101(a)(43)(P), which makes passport fraud an aggravated felony, except when the noncitizen shows he committed the offense to assist an immediate family member. But that exception is provided in the INA itself. As we held in Nijhawan, a circumstance-specific inquiry would apply to that provision, so it is not comparable. 557 U. S., at 37–38.

*  *  *

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.

It is so ordered.

__________________________________

1  In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U. S. C. §1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR §1208.17(a) (2012). These forms of relief require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggravated felony has no effect on CAT eligibility, but will render a noncitizen ineligible for withholding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U. S. C. §1231(b)(3)(B).

2  The parties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U. S. C. §1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2.

3  Compare 662 F. 3d 387 (CA5 2011) (case below), Garcia v. Holder, 638 F. 3d 511 (CA6 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F. 3d 30 (CA1 2008) (same), with Martinez v. Mukasey, 551 F. 3d 113 (CA2 2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F. 3d 377 (CA3 2003) (same).

4  Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U. S. C. §1229b(a)(3) (emphasis added). Our analysis is the same in both contexts.

5  In full, 21 U. S. C. §841(a)(1) provides, “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .”

6  In pertinent part, §§841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V) provide, “Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows: .     .     .     .     . “[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. . . . .     .     .     .     . “(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of title 18.”

7  Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of possession with intent to distribute that drug.” Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for Petitioner 6, n. 2; Brief for Respondent 8, n. 5. The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts from deportable controlled substances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U. S. C. §1227(a)(2)(B)(i). The meaning of “small amount” is not at issue in this case, so we need not, and do not, define the term.

8  Justice Alito states that the statute “obviously” requires examination of whether “conduct associated with the state offense . . . would have supported a qualifying conviction under the federal CSA.” Post, at 3 (dissenting opinion) (emphasis added); see also post, at 8. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on conditional perfect formulations. See also, e.g., Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 16) (criticizing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and punishment” (emphasis altered)). Instead, as we have explained, supra, at 10–11, our holding depended upon the fact that Carachuri-Rosendo’s conviction did not establish the fact necessary to distinguish between misdemeanor and felony punishment under the CSA. The same is true here.

9  The Government also cites 21 U. S. C. §885(a)(1), which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assuming §841(b)(4) is such an “exception,” §885(a)(1) applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA.

10  In addition to New York, it appears that 13 other States have separate offenses for §841(b)(4) conduct. See Cal. Health & Safety Code Ann. §11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. §18–18–406(5) (2012); Fla. Stat. §893.13(2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, §§550/3, 550/4, 550/6 (West 2010); Iowa Code §124.410 (2009); Minn. Stat. §152.027(4)(a) (2010); N. M. Stat. Ann. §30–31–22(E) (Supp. 2011); Ohio Rev. Code Ann. §2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore. Rev. Stat. §475.860(3) (2011); Pa. Stat. Ann., Tit. 35, §780–113(a)(31) (Purdon Supp. 2012); S. D. Codified Laws §22–42–7 (Supp. 2012); Tex. Health & Safety Code Ann. §481.120(b)(1) (West 2010); W. Va. Code Ann. §60A–4–402(c) (Lexis 2010).

11  Similarly, Justice Alito’s dissent suggests that he disagrees with the first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for committing the same criminal conduct” might suffer different collateral consequences depending upon how those States define their statutes of conviction. Post, at 9. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defendant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uni-form” federal definition of the generic offense, and some will not. Taylor v. United States, 495 U. S. 575, 590 (1990) . Whatever disparity this may create as between defendants whose real-world conduct was the same, it ensures that all defendants whose convictions establish the same facts will be treated consistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See id., at 599–602.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–702

_________________

ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the fifth circuit

[April 23, 2013]

Justice Alito, dissenting.

The Court’s decision in this case is not supported by the language of the Immigration and Nationality Act (INA) or by this Court’s precedents, and it leads to results that Congress clearly did not intend.

Under the INA, aliens 1 who are convicted of certain offenses may be removed from this country, 8 U. S. C. §1227(a)(2) (2006 ed. and Supp. V), but in many instances, the Attorney General (acting through the Board of Immigration Appeals (BIA)) has the discretion to cancel re-moval, §§1229b(a), (b). Aliens convicted of especially serious crimes, however, are ineligible for cancellation of removal. §1229b(a)(3) (2006 ed.). Among the serious crimes that carry this consequence is “illicit trafficking in a controlled substance.” §1101(a)(43)(B).

Under the Court’s holding today, however, drug traffickers in about half the States are granted a dispensation. In those States, even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribution is a major source of income for some of the world’s most dangerous drug cartels, Dept. of Justice, National Drug Intelligence Center, National Drug Threat Assessment 2, 7 (2011), but the Court now holds that an alien convicted of participating in such activity may petition to remain in this country.

The Court’s decision also means that the consequences of a conviction for illegal possession with intent to distribute will vary radically depending on the State in which the case is prosecuted. Consider, for example, an alien who is arrested near the Georgia-Florida border in possession of a large supply of marijuana. Under the Court’s holding, if the alien is prosecuted and convicted in Georgia for possession with intent to distribute, he is eligible for cancellation of removal. But if instead he is caught on the Florida side of the line and is convicted in a Florida court—where possession with intent to distribute a small amount of marijuana for no remuneration is covered by a separate statutory provision, compare Fla. Stat. §893.13(3) (2010) with §893.13(1)(a)(2)—the alien is likely to be ineligible. Can this be what Congress intended?

I

Certainly the text of the INA does not support such a result. In analyzing the relevant INA provisions, the starting point is 8 U. S. C. §1229b(a)(3), which provides that a lawful permanent resident alien subject to removal may apply for discretionary cancellation of removal if he has not been convicted of any “aggravated felony.” The term “aggravated felony” encompasses “illicit tracking in a controlled substance . . . including a drug trafficking crime (as defined in [ 18 U. S. C. §924(c)]).” 8 U. S. C. §1101(a)(43)(B). And this latter provision defines a “drug trafficking crime” to include “any felony punishable under the Controlled Substances Act (21 U. S. C. 801 et seq.).” 18 U. S. C. §924(c)(2). Thus “any felony punishable under the [CSA]” is an “aggravated felony.”

Where an alien has a prior federal conviction, it is a straightforward matter to determine whether the conviction was for a “felony punishable under the [CSA].” But 8 U. S. C. §1101(a)(43) introduces a complication. That provision states that the statutory definition of “aggra-vated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” (Emphasis added.) As noted, the statutory definition of “aggravated felony” includes a “felony punishable under the [CSA],” and therefore §1101(a)(43)(B) makes it necessary to determine what is meant by a state “offense” that is a “felony punishable under the [CSA].”

What §1101(a)(43) obviously contemplates is that the BIA or a court will identify conduct associated with the state offense and then determine whether that conduct would have supported a qualifying conviction under the federal CSA. 2 Identifying and evaluating this relevant conduct is the question that confounds the Court’s analysis. Before turning to that question, however, some preliminary principles should be established.

In Lopez v. Gonzales, 549 U. S. 47, 50 (2006) , we held that felony status is controlled by federal, not state, law. As a result, once the relevant conduct is identified, it must be determined whether proof of that conduct would support a felony conviction under the CSA. The federal definition of a felony is a crime punishable by imprisonment for more than one year. 18 U. S. C. §§3559(a)(1)–(5). Consequently, if the proof of the relevant conduct would support a conviction under the CSA for which the maximum term of imprisonment is more than one year, the state conviction qualifies as a conviction for an “aggra-vated felony.”

II

This brings us to the central question presented in this case: how to determine and evaluate the conduct that constitutes the state “offense.” One possibility is that ac-tual conduct is irrelevant, and that only the elements of the state crime for which the alien was convicted matter. We have called this the “categorical approach,” Taylor v. United States, 495 U. S. 575, 600 (1990) , and we have generally used this approach in determining whether a state conviction falls within a federal definition of a crime, see id., at 600–601 (“Section 924(e)(2)(B)(i) defines ‘violent felony’ as any crime punishable by imprisonment for more than a year that ‘has as an element’—not any crime that, in a particular case, involves—the use or threat of force. Read in this context, the phrase ‘is burglary’ in §924(e)(2)(B)(ii) most likely refers to the elements of the statute of conviction, not to the facts of each defendant’s conduct”). But, as will be discussed below, we have also departed in important ways from a pure categorical approach.

The Court’s opinion in this case conveys the impression that its analysis is based on the categorical approach, but that is simply not so. On the contrary, a pure categorical approach leads very quickly to the conclusion that petitioner’s Georgia conviction was a conviction for an “aggravated felony.”

The elements of the Georgia offense were as follows: knowledge, possession of marijuana, and the intent to dis-tribute it. Ga. Code Ann. §16–13–30(j)(1) (2007); Jackson v. State, 295 Ga. App. 427, 435, n. 28, 671 S. E. 2d 902, 909, n. 28 (2009). Proof of those elements would be sufficient to support a conviction under 21 U. S. C. §841(a), and the maximum punishment for that offense is imprisonment for up to five years, §841(b)(1)(D) (2006 ed., Supp. V), more than enough to qualify for felony treatment. Thus, under a pure categorical approach, petitioner’s Georgia conviction would qualify as a conviction for an “aggravated felony” and would render him ineligible for cancellation of removal.

The Court departs from this analysis because §841(b)(4) provides a means by which a defendant convicted of violating §841(a) (2006 ed.) may lower the maximum term of imprisonment to no more than one year. That provision states that “any person who violates [§841(a)] by distributing a small amount of marihuana for no remuneration shall be treated as” a defendant convicted of simple possession, and a defendant convicted of that lesser offense faces a maximum punishment of one year’s imprisonment (provided that the defendant does not have a prior simple possession conviction), §844 (2006 ed., Supp. V). Reading this provision together with §841(a), the Court proceeds as if the CSA created a two-tiered possession-with-intent-to-distribute offense: a base offense that is punishable as a misdemeanor and a second-tier offense (possession with intent to distribute more than a “small amount” of mari-juana or possession with intent to distribute for remuneration) that is punishable as a felony.

If the CSA actually created such a two-tiered offense, the pure categorical approach would lead to the conclusion that petitioner’s Georgia conviction was not for an “aggravated felony.” The elements of the Georgia offense would not suffice to prove the second-tier offense, which would require proof that petitioner possessed more than a “small amount” of marijuana or that he intended to obtain remuneration for its distribution. Instead, proof of the elements of the Georgia crime would merely establish a violation of the base offense, which would be a misdemeanor.

The CSA, however, does not contain any such two-tiered provision. And §841(b)(4) does not alter the elements of the §841(a) offense. As the Court notes, every Court of Appeals to consider the question has held that §841(a) is the default offense and that §841(b)(4) is only a mitigating sentencing guideline, see United States v. Outen, 286 F. 3d 622, 636–639 (CA2 2002) (Sotomayor, J.) (describing §841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F. 3d 666, 670 (CA4 2003) (collecting cases), and the Court does not disagree, ante, at 11–13.

Confirmation of this interpretation is provided by the use of the term “small amount” in §841(b)(4). If §841(b)(4) had been meant to alter the elements of §841(a), Congress surely would not have used such a vague term. Due process requires that the elements of a criminal statute be defined with specificity. Connally v. General Constr. Co., 269 U. S. 385, 393 (1926) . Accordingly, it is apparent that §841(b)(4) does not modify the elements of §841(a) but instead constitutes what is in essence a mandatory sentencing guideline. Under this provision, if a defendant is convicted of violating §841(a), the defendant may attempt to prove that he possessed only a “small amount” of marijuana and that he did not intend to obtain remuneration for its distribution. If the defendant succeeds in convincing the sentencing judge, the maximum term of imprisonment is lowered to one year.

In sum, contrary to the impression that the Court’s opinion seeks to convey, the Court’s analysis does not follow the pure categorical approach.

III

Nor is the Court’s analysis supported by prior case law. The Court claims that its approach follows from our decision in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010), but that case—unlike the Court’s opinion—faithfully ap-plied the pure categorical approach.

In Carachuri-Rosendo, the alien had been convicted in a Texas court for simple possession of a controlled substance. Id., at ___ (slip op., at 6). At the time of that conviction, Carachuri-Rosendo had a prior state conviction for simple possession, but this fact was not charged or proved at his trial and was apparently not taken into account in setting his sentence, which was 10 days in jail. Id., at ___, ___–___ (slip op., at 5–6). Arguing that Carachuri-Rosendo was ineligible for cancellation of removal, the Government maintained that his second sim-ple possession conviction qualified under the INA as a conviction for an “aggravated felony.” Id., at ___ (slip op., at 5). This was so, the Government contended, because, if Carachuri-Rosendo’s second simple-possession prosecution had been held in federal court, he could have been punished by a sentence of up to two years due to his prior simple possession conviction. Id., at ___ (slip op., at 5).

This more severe sentence, however, would have required the federal prosecutor to file a formal charge alleging the prior conviction; Carachuri-Rosendo would have been given the opportunity to defend against that charge; and the heightened sentence could not have been imposed unless the court found that the prior conviction had occurred. Id., at ___ (slip op., at 14).

Our rejection of the Government’s argument thus represented a straightforward application of the pure categorical approach. The elements of the Texas offense for which Carachuri-Rosendo was convicted were knowledge or intent, possession of a controlled substance without a prescription, and nothing more. Id., at ___ (slip op., at 6); Tex. Health & Safety Code Ann. §§481.117(a), (b) (West 2010). Proof of a prior simple possession conviction was not required, and no such proof appears to have been offered. The maximum penalty that could have been imposed under federal law for simple possession (without proof of a prior simple possession conviction) was one year’s imprisonment. Thus, proof in federal court of the elements of the Texas offense would not have permitted a felony-length sentence, and consequently the state conviction did not qualify as a felony punishable under the CSA.

IV

Unsupported by either the categorical approach or our prior cases, the decision of the Court rests instead on the Court’s belief—which I share—that the application of the pure categorical approach in this case would lead to results that Congress surely did not intend.

Suppose that an alien who is found to possess two marijuana cigarettes is convicted in a state court for possession with intent to distribute based on evidence that he in-tended to give one of the cigarettes to a friend. Under the pure categorical approach, this alien would be regarded as having committed an “aggravated felony.” But this classification is plainly out of step with the CSA’s assessment of the severity of the alien’s crime because under the CSA the alien could obtain treatment as a misdemeanant by taking advantage of 21 U. S. C. §841(b)(4).

For this reason, I agree with the Court that such an alien should not be treated as having committed an “aggravated felony.” In order to avoid this result, however, it is necessary to depart from the categorical approach, and that is what the Court has done. But the particular way in which the Court has departed has little to recommend it.

To begin, the Court’s approach is analytically confused. As already discussed, the Court treats §841(b)(4) as if it modified the elements of §841(a), when in fact §841(b)(4) does no such thing. And the Court obviously knows this because it does not suggest that §841(b)(4) changes the elements of §841(a) for criminal law purposes. 3

In addition, the Court’s approach leads to the strange and disruptive results noted at the beginning of this opinion. As an initial matter, it leads to major drug traffick-ing crimes in about half the States being excluded from the category of “illicit trafficking in a controlled substance.” Moreover, it leads to significant disparities between equally culpable defendants. We adopted the categorical ap-proach to avoid disparities in our treatment of defendants convicted in different States for committing the same criminal conduct. See Taylor, 495 U. S., at 590–591 (rejecting the view that state law determined the meaning of “burglary” because “[t]hat would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct ‘burglary’ ”). Yet the Court reintroduces significant disparity into our treatment of drug offenders. All of this can be avoided by candidly acknowledging that the categorical approach is not the be-all and end-all.

When Congress wishes to make federal law dependent on certain prior state convictions, it faces a difficult task. The INA provisions discussed above confront this problem, and their clear objective is to identify categories of criminal conduct that evidence such a high degree of societal danger that an alien found to have engaged in such conduct should not be allowed to obtain permission to remain in this country. Since the vast majority of crimes are prosecuted in the state courts, Congress naturally looked to state, as well as federal, convictions as a metric for identifying these dangerous aliens.

But state criminal codes vary widely, and some state crimes are defined so broadly that they encompass both very serious and much less serious cases. In cases involving such state provisions, a pure categorical approach may frustrate Congress’ objective.

The Court has said that the categorical approach finds support in the term “conviction.” Taylor, supra, at 600; Shepard v. United States, 544 U. S. 13, 19 (2005) . But the Court has never held that a pure categorical approach is dictated by the use of that term, 4 and I do not think that it is. In ordinary speech, when it is said that a person was convicted of or for doing something, the “something” may include facts that go beyond the bare elements of the relevant criminal offense. For example, it might be said that an art thief was convicted of or for stealing a Rembrandt oil painting even though neither the identity of the artist nor the medium used in the painting are elements of the standard offense of larceny. See 3 W. LaFave, Substantive Criminal Law §19.1(a) (2d ed. 2003).

For these reasons, departures from the categorical approach are warranted, and this Court has already sanctioned such departures in several circumstances. See Taylor, supra, at 602 (modified categorical approach); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007) (categorical approach does not exclude state-law convictions unless there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”); Nijhawan v. Holder, 557 U. S. 29, 32 (2009) (interpreting an enumerated “aggravated felony” in 8 U. S. C. §1101(a)(43) not to be a generic crime). Consistent with the flexibility that the Court has already recognized, I would hold that the categorical approach is not controlling where the state conviction at issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard and a substantial number that do not. In such situations, it is appropriate to look beyond the elements of the state offense and to rely as well on facts that were admitted in state court or that, taking a realistic view, were clearly proved. Such a look beyond the elements is particularly appropriate in a case like this, which involves a civil proceeding before an expert agency that regularly undertakes factual inquiries far more daunting than any that would be involved here. See, e.g., Negusie v. Holder, 555 U. S. 511 (2009) .

Applying this approach in the present case, what we find is that the Georgia statute under which petitioner was convicted broadly encompasses both relatively minor offenses (possession of a small amount of marijuana with the intent to share) and serious crimes (possession with intent to distribute large amounts of marijuana in exchange for millions of dollars of profit). We also find that petitioner had the opportunity before the BIA to show that his criminal conduct fell into the category of relatively minor offenses carved out by §841(b)(4). Administrative Record 16–26. The BIA takes the entirely sensible view that an alien who is convicted for possession with intent to distribute may show that his conviction was not for an “aggravated felony” by proving that his conduct fell within §841(b)(4). Matter of Castro-Rodriguez, 25 I. & N. Dec. 698, 701–702 (2012). Petitioner, for whatever reason, availed himself only of the opportunity to show that his conviction had involved a small amount of marijuana and did not present evidence—or even contend—that his offense had not involved remuneration. Administrative Record 16–26, 37. As a result, I think we have no alternative but to affirm the decision of the Court of Appeals, which in turn affirmed the BIA.

__________________________________

1  “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420 , n. 2 (1998) (Ginsburg, J., dissenting).

2  The Court’s disagreement with this proposition, ante at 12, n. 8, is difficult to understand. If, as 8 U. S. C. §1101(a)(43) quite plainly suggests and the Court has held, a state conviction can qualify as an “aggravated felony,” we must determine what is meant by a state “of-fense” that is a “felony punishable under the [CSA].” There is noway to do this other than by identifying a set of relevant conduct and asking whether, based on that conduct, the alien could have been con-victed of a felony if prosecuted under the CSA in federal court. In reject-ing what it referred to as a “hypothetical approach,” the Carachuri-Rosendo Court was addressing an entirely different question, specifi-cally, which set of conduct is relevant. Carachuri-Rosendo v. Holder, 560 U. S. ___, ___–___ (2010) (slip op., at 8, 15–17). We held that the relevant set of conduct consisted of that which was in fact charged and proved in the state-court proceeding, not the set of conduct that could have been proved in a hypothetical federal proceeding.

3  The Court defends its interpretation of 21 U. S. C. §§841(a), (b)(4) by arguing that Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010), re-jected any recourse to a “hypothetical approach” for determining howa criminal prosecution likely would have proceeded, see ante, at 12,and that is true enough. But, as discussed above, see n. 2, supra, just because the categorical approach does not require conjecture as to whether a hypothetical federal prosecutor would be likely to charge and prove a prior conviction does not mean that it also precludes analysis of the structure of the federal criminal statute at hand. Indeed, our categorical-approach cases have done little else. See, e.g., Carachuri-Rosendo, supra, at ___ (slip op., at 14) (discussing procedural protections Carachuri-Rosendo would have enjoyed had he been prosecuted federally); Gonzales v. Duenas-Alvarez, 549 U. S. 183 –194 (2007) (the term “theft offense” in 8 U. S. C. §1101(a)(43)(G) includes the crime of aiding and abetting a theft offense).

4  Instead, the Court adopted the categorical approach based on a combination of factors, including judicial efficiency. See Taylor, 495 U. S., at 601 (“[T]he practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was”).

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–702

_________________

ADRIAN MONCRIEFFE, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the fifth circuit

[April 23, 2013]

Justice Thomas, dissenting.

A plain reading of 18 U. S. C. §924(c)(2) identifies two requirements that must be satisfied for a state offense to qualify as a “felony punishable under the Controlled Substances Act [(CSA)].” “First, the offense must be a felony; second, the offense must be capable of punishment under the [CSA].” Lopez v. Gonzales, 549 U. S. 47, 61 (2006) (Thomas, J., dissenting). Moncrieffe’s offense of pos-session of marijuana with intent to distribute satisfies both elements. No one disputes that Georgia punishes Moncrieffe’s offense as a felony. See Ga. Code Ann. §16–13–30(j)(2) (Supp. 2012). (“Except as otherwise provided in subsection (c) of Code Section 16–13–31 or in Code Section 16–13–2, any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years”). 1 And, the offense is “punishable under the [CSA],” 18 U. S. C. §924(c)(2), because it involved “possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance,” 21 U. S. C. §841(a)(1). Accordingly, Moncrieffe’s offense is a “drug trafficking crime,” 18 U. S. C. §924(c)(2), which constitutes an “aggravated felony” under the Immigration and Nationality Act (INA), 8 U. S. C. §1101(a)(43)(B). 2

The Court rejected the plain meaning of 18 U. S. C. §924(c)(2) in Lopez. 549 U. S., at 50. There, the defendant was convicted of a state felony, but his offense would have been a misdemeanor under the CSA. Id., at 53. The Court held that the offense did not constitute a “ ‘felony punishable under the [CSA]’ ” because it was not “punishable as a felony under that federal law.” Id., at 60 (quoting §924(c)(2); emphasis added). I dissented in Lopez and warned that an inquiry into whether a state offense would constitute a felony in a hypothetical federal prosecution would cause “significant inconsistencies.” Id., at 63. I explained that one such inconsistency would arise if an alien defendant never convicted of an actual state felony were subject to deportation based on a hypothetical federal prosecution. Id., at 67.

This precise issue arose in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010). Instead of following the logic of Lopez, however, the Court contorted the law to avoid the harsh result compelled by that decision. In Carachuri-Rosendo, the defendant was convicted of a crime that the State categorized as a misdemeanor, but his offense would have been a felony under the CSA because he had a prior conviction. 560 U. S., at ___ (slip op., at ___). The Court held that the offense did not constitute an “aggravated felony” because the state prosecutor had not charged the existence of a prior conviction and, thus, the defendant was not “actually convicted of a crime that is itself punishable as a felony under federal law.” Id., at ___ (slip op., at 17). Concurring in the judgment, I explained that the Court’s decision was inconsistent with Lopez because the defendant’s conduct was punishable as a felony under the CSA, but that Lopez was wrongly decided and that a proper reading of §924(c)(2) supported the Court’s result. 560 U. S., at ___ (slip op., at 1). Carachuri-Rosendo’s crime of conviction was a state-law misdemeanor and, as a result, it did not qualify as a “felony punishable under the [CSA].” See ibid.

I declined to apply Lopez in Carachuri-Rosendo, and I am unwilling to apply it here. Indeed, the Court itself declined to follow the logic of Lopez to its natural end in Carachuri-Rosendo. And, now the majority’s ill-advised approach once again leads to an anomalous result. It is undisputed that, for federal sentencing purposes, Moncrieffe’s offense would constitute a federal felony unless he could prove that he distributed only a small amount of marijuana for no remuneration. Cf. United States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (Sotomayor, J.) (agreeing with the Government that 21 U. S. C. §841(b)(4) is a mitigating exception to the “default provision” under §841(b)(1)(D) and that it need not negate the §841(b)(4) factors to support a sentence under §841(b)(1)(D)). But, the Court holds that, for purposes of the INA, Moncrieffe’s offense would necessarily correspond to a federal misdemeanor, regardless of whether he could in fact prove that he distributed only a small amount of marijuana for no remuneration. Ante, at 11 (asserting that neither §841(b)(1)(D) nor §841(b)(4) is the “default” provision). The Court’s decision, thus, has the effect of treating a substantial number of state felonies as federal misdemeanors, even when they would result in federal felony convictions.

The majority notes that “[t]his is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as . . . an ‘aggravated felony.’ ” Ante, at 20–21. The Court has brought this upon itself. The only principle uniting Lopez, Carachuri-Rosendo, and the decision today appears to be that the Government consistently loses. If the Court continues to disregard the plain meaning of §924(c)(2), I expect that these types of cases will endlessly—and needlessly—recur.

I respectfully dissent.

__________________________________

1  Section 16–13–31(c) (Supp. 2012) increases the punishment for trafficking in marijuana, while §16–13–2(b) (2011) decreases the punishment for simple possession of 1 ounce or less of marijuana. Neither provision is applicable to Moncrieffe’s offense of possession of mari-juana with intent to distribute. The Court correctly points out that Moncrieffe was sentenced pur-suant to §16–13–2(a) because he was a first-time offender. Ante, at 3. That provision does not alter the felony status of the offense. Rather, it gives courts discretion to impose probation instead of imprisonment and to do so without entering a conviction. As the majority recognizes, petitioner has waived any argument that he was not convicted for pur-poses of the Immigration and Nationality Act. Ante, at 3, n. 2.

2  See 8 U. S. C. §1227(a)(2)(A)(iii) (providing that aliens convicted of an “aggravated felony” after admission are deportable); §1229b(a)(3) (providing that aliens convicted of an “aggravated felony” are ineligible for 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 [ 18 U. S. C. §924(c)])”); 18 U. S. C. §924(c)(2) (defining “drug trafficking crime” as “any felony punishable under the [CSA]”).

Print this transcript Transcript: 

ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-702, Moncrieffe v. Holder.

Mr. Goldstein.

Thomas C. Goldstein: Mr. Chief Justice, thank you very much.

May it please the Court:

Today's undercard is an immigration case.

Adrian Moncrieffe was convicted of possession with intent to distribute marijuana under Georgia law.

The question in the case is whether he was thereby convicted of a controlled substances offense, which is a deportable offense, but also an aggravated felony of illicit trafficking in drugs, which would mean that the Attorney General has no discretion to cancel his removal.

Now, everyone agrees that under the Georgia statute, there is going to be some conduct that would be a Federal felony, but it's also undisputed that the Georgia statute regularly involves prosecutions that would be Federal misdemeanors.

Justice Sonia Sotomayor: Excuse me.

You use that word, regularly.

Do you have statistics on that?

Were they provided in the briefs?

Thomas C. Goldstein: They were not.

We do not -- we attempted very hard to collect them.

This is the information I can give you about Federal and state prosecutions of marijuana cases in the United States.

In the state system, the most recent available data -- it was published by the Department of Justice in 2006, but we have no reason to believe that it's changed materially -- in 2006, there were roughly 750,000 prosecutions in the states for marijuana offenses.

By contrast, in the Federal system, we have data from 2010.

And we have two different kinds of data here that is a little bit more granular, and that is for prosecutions under 841(b)(1), which is the trafficking provision, there were 6,200 cases.

For prosecutions under 841(b)(4), which is the provision we say you ought to look at here, and 844, which is the possession provision, combined, there were only 93 prosecutions in 2010.

And what we think that illustrates is that there is a massive amount of activity in the states doing things that show that this -- and this case is perfectly commonplace, we think.

It's consistent with the other cases that we've seen published by the BIA.

Adrian Moncrieffe possessed--

Justice Anthony Kennedy: It's a massive amount of conduct that the statute contemplates?

The statutory scheme -- I just didn't hear.

I just didn't hear.

Thomas C. Goldstein: --Yeah.

I apologize.

Yes, Justice Kennedy, that's right.

The Georgia statute, which just refers to possession with intent to distribute, contemplates both social sharing of marijuana -- this case, for example, 1.3 grams of marijuana, which is less than--

Justice Ruth Bader Ginsburg: Well, now, Mr. Goldstein, when you say this case, is there any proof in the record that there was a small amount and no remuneration?

Thomas C. Goldstein: --Yes, Justice Ginsburg, although this is -- we believe the case is proceeding under the categorical approach, the answer to your question is yes.

So let me take you to two places.

One is going to be at the back of the blue brief, where we have the chemist's report.

So page 19.

This is from the -- the record in the immigration proceedings.

And on page 19 of the appendix to our blue brief -- we just agreed, because there was so little record material, that we wouldn't have a joint appendix in the case.

We just published it at the end of our brief -- it says,

"material weight less than 1 ounce; approximate weight is 1.3 grams. "

And for those of us who've been fortunate enough not to experience the drug laws a lot, that's less than half the weight of this penny.

So it's, I think everybody agrees, a small amount.

Now, on the question of no remuneration, what I have to offer you is the Georgia statute--

Justice Antonin Scalia: Excuse me.

I don't understand.

Thomas C. Goldstein: --Sorry.

Justice Antonin Scalia: Material weight says less than 1 ounce--

Thomas C. Goldstein: Yes.

Justice Antonin Scalia: --parentheses, approximate weight is 1 -- 1 -- oh, I see, 1.3 grams.

Thomas C. Goldstein: Yeah.

1.3 grams.

1.3.

That's very, very, very, very little.

So then, on the question of remuneration -- and I should just step back and explain, the reason we're talking about this is that the Federal misdemeanor provision, 841(b)(4), says that it's not a felony, and thus, it wouldn't be an aggravated felony, if it's a small amount and no remuneration.

And Justice Ginsburg asked about the -- what's in the record about that.

Now, there isn't record evidence about no remuneration, but there is one significant fact.

And to know that fact, you have to look at the Georgia statute, which is also at the end of our brief.

It's on page 9 of our appendix.

This is the statute he was prosecuted under.

It's the second provision.

Section 16-13-30(j)(1).

And I'll just read it.

"It is unlawful for any person to possess, have under his control, manufacture, deliver, distribute, dispense, administer, purchase, sell. "

--sell --

"or possess with intent to distribute marijuana. "

And he was not charged with and he was not convicted of selling, and so we think that should negative any indication -- any implication that he might have gotten remuneration for this.

Justice Sonia Sotomayor: You -- we are discussing the categorical approach, but let's assume he had pled guilty, and in his allocution, he had admitted to not a smaller amount or to remuneration.

Would -- would an immigration judge, under the argument you're making today, have to ignore that allocution, or would he be able to apply the modified approach and find this gentleman an aggravated felon?

Thomas C. Goldstein: Under our rule, the plea colloquy is irrelevant, but we would win under a rule in which it was relevant.

So, to start with the former, we say that the categorical rule applies.

There's no -- the only reason that you would look at the modified categorical approach here is to know that it was a possession with intent to distribute conviction rather than a sale conviction, but that evidence would still come in.

It would be highly relevant.

It's the basis that this Court explained in Carachuri-Rosendo, that the immigration judge would deny cancellation of removal.

Right?

That factor would still be highly relevant.

The Attorney General would exercise his discretion in such a case.

Now--

Justice Sonia Sotomayor: That's the issue with this case.

None of these immigrants are being let out automatically.

They are still felons subject to removal.

The only issue is whether--

Thomas C. Goldstein: --You said still felons.

We--

Justice Sonia Sotomayor: --Well -- they're--

Thomas C. Goldstein: --That's exactly right.

Justice Sonia Sotomayor: --they're still subject to removal--

Thomas C. Goldstein: Right.

Justice Sonia Sotomayor: --either way.

Thomas C. Goldstein: So, you know, lawyers often try and avoid the strength of the other side's case.

And so let me just confront what I think is a big argument of theirs.

They say our position is underinclusive because the Georgia statute does include conduct that would be a felony.

You just gave an example of it.

But our point is that our underinclusivity is a problem, but it's not a big problem.

It's not as big as their problem.

Because, as this Court explained in Carachuri-Rosendo, the offense still is removable, and the Attorney General will just deny cancellation of removal.

Now, the reason they have a much bigger practical problem is that their rule is overinclusive.

It treats as felonies some convictions that should be misdemeanors.

Justice Stephen G. Breyer: I see that.

There's something I really don't understand in these cases, because the other cases, our precedent's been around a long time, so I would have guessed that under that precedent in these other statutes, the obvious thing to do, the obvious puzzle here is not the Federal statute, it's the state statute, what is this thing he was convicted of about.

So you'd pick up the phone, and you'd phone at random four U.S. attorneys.

Not U.S. attorneys, but four state attorneys--

Thomas C. Goldstein: Okay.

Justice Stephen G. Breyer: --who work with the statute in Georgia, and say, now look, the indictment here says possession with intent to distribute, and I can show from the documents that it's a tiny amount.

Now, is it your policy, if he was selling it, to charge under the sell?

Is it your policy if he's not selling it to charge under intent to distribute?

Is it totally random whether you say sell or intent to distribute?

What's your policy?

Okay?

Then we get some answers.

Then we'd have an idea whether what you're saying is right.

Now, you could do that, but they could do it, too.

Anyone could do it.

And then we'd have some actual facts about whether this charge -- really, it corresponds to the misdemeanor or the felony in the Federal statute.

So why -- I'm not -- I mean, that isn't a brain -- that isn't -- doesn't require -- it's not rocket science, okay?

So why has no one done it?

Thomas C. Goldstein: Because I don't think anybody would believe me if I went to an immigration judge and I said, judge, I promise, I promise that the fact that this isn't a possession with intent to distribute case means that there are never cases in--

Justice Stephen G. Breyer: You don't have to say never.

The question is what kind of a statute is this state statute?

Thomas C. Goldstein: --We -- I think--

Justice Stephen G. Breyer: And the kind of statute that it is, is a statute that is used to prosecute people--

Thomas C. Goldstein: --Yes.

Justice Stephen G. Breyer: --with small amounts when they don't sell.

Thomas C. Goldstein: Right.

Justice Stephen G. Breyer: If your version of what that felon intends to distribute, the distinction there is really picked up by the district attorneys.

And if it's not, then they may be right, because -- because then intent to distribute may well often include, as it does under Federal law, people who sell stuff.

Thomas C. Goldstein: We have not read this Court's cases to suggest that we call the state attorneys.

We have read the Court's cases to engage in ordinary statutory construction, and felony--

Justice Stephen G. Breyer: Okay.

Okay.

You didn't.

In any words, nobody did it.

So my other question--

Thomas C. Goldstein: --Yeah.

Justice Stephen G. Breyer: --which is the only other one I really have, aside from making that suggestion, but here, what happened to this person?

Thomas C. Goldstein: Yes.

Justice Stephen G. Breyer: He was -- was he sentenced under 16-13-2(a)?

That is, was he sentenced to probation, which would be evidence in your favor, I think.

Thomas C. Goldstein: Yeah.

Justice Stephen G. Breyer: But was he or wasn't he?

Thomas C. Goldstein: Yeah.

Justice Stephen G. Breyer: All right.

If he was, what it says in this provision is that the Court may without entering a judgment of guilt.

So there was no judgment of guilt.

Thomas C. Goldstein: Yes.

Justice Stephen G. Breyer: And it says, if he completes it, he then is discharged without court adjudication of guilt.

Thomas C. Goldstein: Yeah.

Justice Stephen G. Breyer: And shall not be deemed a conviction, it says for purposes of this code.

Thomas C. Goldstein: Yeah.

Justice Stephen G. Breyer: Well, why are we saying he was convicted of anything?

Thomas C. Goldstein: Sure.

Because the government's position is, and the Eleventh Circuit has agreed with it -- and just to -- just to make sure everyone is on the same page, and that is, the Federal statute is triggered by a conviction.

Justice Breyer has just made the point that, as a matter of state law, he was not even convicted because he got first offender treatment here, which is a point in our favor.

It does show that it was a small and non-serious offense.

The reason is that there is a Federal definition of convicted that's independent of the state definition of convicted.

Chief Justice John G. Roberts: And that question's not before us today.

Thomas C. Goldstein: That's exactly right.

Chief Justice John G. Roberts: Okay.

Well, isn't the reason we don't look at the particular facts and particular case, and don't depose four district attorneys, is that the Court has adopted a categorical approach precisely to avoid that type of inquiry in, whatever it is, 750,000 cases?

Thomas C. Goldstein: Yes.

That's correct.

And it's an even stronger point in our favor, because worse than interviewing four district attorneys is having a fact-bound inquiry into every one of these immigration cases.

Remember--

Chief Justice John G. Roberts: No, no, I'm sorry.

We don't need that because we've adopted a categorical approach.

Thomas C. Goldstein: --Yeah.

Chief Justice John G. Roberts: 841(b)(1)(D) lists the elements, and conviction in -- Georgia, right?

Thomas C. Goldstein: Yes.

Chief Justice John G. Roberts: --conviction in Georgia under their provision satisfies -- has each of those elements.

And under our categorical approach, that's the end of the inquiry.

Thomas C. Goldstein: That is one way of looking at it.

We disagree for reasons I'll explain.

I will note in our favor that the Attorney General doesn't even defend that position anymore.

Remember that they do not argue that you can just look at the conviction.

They want to have the fact-bound inquiry into every one of these cases.

And the reason is that if you apply the categorical approach to--

Chief Justice John G. Roberts: They want to do that at the tail end, right?

Thomas C. Goldstein: --No, they want to do it in every single case at the beginning.

So I can just make clear everybody's position.

There really--

Justice Anthony Kennedy: Again, I didn't hear.

Thomas C. Goldstein: --Sorry.

Justice Anthony Kennedy: They want to do it in every--

Thomas C. Goldstein: In every case at the beginning.

So I'll--

Justice Anthony Kennedy: --At the beginning of the state prosecution?

Thomas C. Goldstein: --No, in the middle -- at the beginning of the immigration proceedings.

Justice Anthony Kennedy: All right.

Thomas C. Goldstein: So let me--

Chief Justice John G. Roberts: Before you get on -- I didn't understand that to be their position at all.

I suppose we -- I certainly will ask them because they're probably better able to articulate their position, but--

Thomas C. Goldstein: --So let me explain.

Chief Justice John G. Roberts: --Go ahead.

Thomas C. Goldstein: So our position is it is a controlled substances offense, and you take account of the seriousness of the offense in cancellation.

Their position is that it is presumptively, but only presumptively, an aggravated felony.

And in every single immigration proceeding, when you have a case like this the noncitizen can come forward with fact-found evidence, not limited to the record of conviction--

Justice Ruth Bader Ginsburg: Mr. Goldstein, it's because they are trying to mirror the Federal statute, which makes the small amount and no remuneration, makes that like an affirmative defense.

The burden is on the defendant to show those two things to get out from under the main statute.

Thomas C. Goldstein: --That's correct.

Justice Ruth Bader Ginsburg: So what the Government is suggesting is as close to the Federal statute as you can get.

Thomas C. Goldstein: Well, let me just say first, I do want to make -- just want to focus on what the parties' positions are.

And they do have this fact-found inquiry in every one, so I do want to turn to what I think is probably their second best argument.

I was talking about the underinclusiveness as the first one.

Their second one is they want to draw an analogy between this and what would happen in a criminal case.

So they say, take the conviction and imagine that the conviction is all the facts that you had in a Federal criminal prosecution, and then you would have a burden on the defendant to prove that he was subject to the misdemeanor.

We have several points about that.

The first is this is not a Federal criminal prosecution.

The Federal statute involved is the Immigration and Naturalization Act, and it tells you that you are supposed to look at the conviction itself and determine whether it corresponds to a Federal felony.

This further proceeding doesn't exist, and it's exactly the argument that was rejected in Carachuri-Rosendo.

And let me talk about why--

Justice Ruth Bader Ginsburg: You said Carachuri.

That case involved, in order to hold for the Government, you would have to go outside the record of the State conviction.

You'd have to add something that wasn't in the State conviction.

And it's the same thing here.

To get to where you want to go, you have to add something that isn't in the State conviction.

Thomas C. Goldstein: --No, we disagree.

What the Court said in -- I agree with the beginning of how you characterize the Carachuri case.

What the Court said is we don't go beyond the -- the conviction itself.

And it's true that in that case the Government wanted to go beyond the record to go up.

But here what they're saying is that you should go beyond the record to figure out if you should go down.

And what the Court said is, no, you look at the conviction itself.

Justice Antonin Scalia: What is the conviction?

Thomas C. Goldstein: Okay.

Justice Antonin Scalia: What does the conviction mean?

You say the categorical approach.

Thomas C. Goldstein: Yes.

Justice Antonin Scalia: Is it the categorical statute under which you have been convicted or, as you seem to be saying, the indictment?

Thomas C. Goldstein: It is what you are convicted of.

So here, he was convicted of possession with intent to distribute.

The other side's argument is, well, if I had just possession with intent to distribute, that would be a Federal felony.

So we acknowledge the strength of that point.

But our--

Justice Antonin Scalia: Is he convicted of that or is he convicted of violating Georgia Code 16-13, whatever it is?

Thomas C. Goldstein: --As I was -- I mentioned very briefly to Justice Sotomayor, when you have a divisible statute like this, that includes possession with intent to distribute, sell, possess, all of those things, you use the modified categorical approach to figure out which one applies.

And so we know he was convicted of possession with intent to distribute and that's common ground between the parties.

It's not the whole statute.

It's just the--

Justice Elena Kagan: Well, Mr. Goldstein, assuming he was convicted of that, as you suggest, you have an underinclusiveness problem.

The Government has an overinclusiveness problem.

Thomas C. Goldstein: --Yes.

Justice Elena Kagan: If you assume that this statute covers and is regularly used to cover both sets of people, both people with these very minor offenses and people with much more major offenses--

Thomas C. Goldstein: Yes.

Justice Elena Kagan: --the at least apparent attractiveness of the Government's position is that they've tried to cure their overinclusiveness problem, and they have done it by sticking on -- and, you know, one can ask where this comes from in the statute--

Thomas C. Goldstein: I hope we will.

Justice Elena Kagan: --but they have done it by sticking on something that attempts to address their overinclusiveness problem, so that people who are really misdemeanants get classified as misdemeanants, and people who are really aggravated felons get classified that way.

And you have no similar cure for your underinclusiveness problem, so why shouldn't we go with their problem, which at least attempts to solve this problem?

Thomas C. Goldstein: Well, two reasons.

First, they don't have a real solution.

And, second, Congress solved our problem.

And this is what Carachuri-Rosendo says, and that is, when you have an underinclusiveness problem just like ours, the statute fixes it because the statute treats the conviction as a controlled substances offense.

The statute provides the backstop.

You don't have to make one up, which, I suggest to you, is the difficulty with their position.

Justice Ruth Bader Ginsburg: I don't follow--

Thomas C. Goldstein: Okay.

Justice Ruth Bader Ginsburg: --your answer because I think you have to concede that under your view a lot of people who are convicted under the Georgia statute who had a significant quantity which they intended to distribute--

Thomas C. Goldstein: Yes.

Justice Ruth Bader Ginsburg: --for remuneration--

Thomas C. Goldstein: Yes.

Justice Ruth Bader Ginsburg: --many of those people would -- under your view of the statute, many of those people would not have committed an aggravated felony.

Thomas C. Goldstein: I agree with--

Justice Ruth Bader Ginsburg: So you have that--

Thomas C. Goldstein: --That is our problem.

I agree with that problem.

Justice Ruth Bader Ginsburg: --a large underinclusiveness problem which you haven't solved.

Thomas C. Goldstein: Okay.

That's the part we disagree with, Justice Ginsburg.

Maybe I can just read to you what this Court said about this exact issue in Carachuri-Rosendo.

It said that when you have this very underinclusiveness problem, it is solved by the statute, because the attorney -- all that happens under our rule -- it's still a deportable offense and the Attorney General denies cancellation of removal.

So if could just read very briefly, and this is from the Supreme Court Reporter at page 2589:

"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 understanding 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 position 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-- "

Justice Ruth Bader Ginsburg: But all that follows from in Carachuri-Rosendo the Government wanted to go outside the record.

Thomas C. Goldstein: --No, Justice Ginsburg, it does not.

I promise you it does not.

The upshot of our position is that Mr. Moncrieffe has committed a controlled substances offense, and anyone else in his position has committed one.

And if there is a serious drug amount, the Attorney General will deny him cancellation of removal.

Justice Elena Kagan: Do you think that the Attorney General could just issue some kind of directive telling all administrative law judges and officials to deny cancellation of removal to anybody who commits these kinds of offenses?

Thomas C. Goldstein: We -- it's an interesting question that I have puzzled about at length.

I think the answer is no for a very particular reason, however, and that is the Attorney General has no such categorical rules.

We think it's a point in our favor that the Attorney General, in the application starting with 212(c) before the 1996 Act, which is discussed in this Court's decision in St. Cyr, through the present has instead applied a holistic look at all of the circumstances.

What he certainly can do is direct the immigration judges to place special weight -- and this was the rule before 1996, by the way.

If you had a serious offense, you had to show special equities that would justify your not being removed from the country.

And so we think that's the most likely outcome.

A per se categorical rule would be very unlike what we understand the Attorney General to do in any other circumstance.

Justice Anthony Kennedy: Would it be permissible -- I had the same question.

Would it be permissible--

Thomas C. Goldstein: I think--

Justice Anthony Kennedy: --or would you be back up here saying that this violates the statute.

Thomas C. Goldstein: --Well, we think we would win, so I wouldn't be back for this client.

But I think there would be a substantial argument that it would be arbitrary and capricious, because it would be so unlike anything the Attorney General does in other circumstances.

But they would have--

Chief Justice John G. Roberts: I'm sorry, could you remind me what the “ it ” is that you're talking about?

Thomas C. Goldstein: --Yes.

Chief Justice John G. Roberts: It's an order from the Attorney General--

Thomas C. Goldstein: Yes.

Chief Justice John G. Roberts: --to the immigration judges--

Thomas C. Goldstein: Yes.

Chief Justice John G. Roberts: --to?

Thomas C. Goldstein: To treat all of these cases as barring cancellation of removal.

To get us on the back end, as it were, and that is--

Justice Elena Kagan: To do the exact same thing--

Thomas C. Goldstein: --Yes.

Justice Elena Kagan: --but through--

Thomas C. Goldstein: Right.

Justice Elena Kagan: --an Attorney General directive.

Thomas C. Goldstein: And I think our argument that it's arbitrary would be supported by the fact that this Court would have ruled that he couldn't do the identical thing on the front end.

But it's an open question, and it's not presented here.

I had said that there were two flaws in the -- sort of their characterization of the over and underinclusiveness problem.

The second one is they don't have a real solution.

This is a big problem.

Under these State convictions in which the amount of drugs and whether there was remuneration are irrelevant, it's going to be extremely difficult for uncounseled noncitizens who are in jail, who don't have access to tools of communication, to prove to an immigration judge this fact-found inquiry which they are inserting into every single case, that their offense actually corresponds to a misdemeanor.

So while you say that they have provided the solution, I don't know where it comes from in the statute, but we think it is not a practical solution.

And that problem is even worse in the many contexts that are not just straight removal.

We said in our opening brief, and the Government's response ignores, that there are many cases in which immigration officials have to make these decisions about whether it's an aggravated felony much more on the fly, without the opportunity to call everybody in and--

Justice Anthony Kennedy: Do you have any statistics, if you take the whole universe of convictions under the Georgia statute, what percentage of them are for these minor offenses and what are for the major?

Do we have any handle on that at all?

Thomas C. Goldstein: --We don't.

We tried.

I'm sorry, we were unable to do it.

The Department of Justice has better relationships with prosecutors, and so maybe it will have that information for you.

But I can say that the -- it is absolutely commonplace, from looking at the case law, for the states to tackle this small social sharing of a couple of marijuana cigarettes.

This is -- that's the distinction between 93 prosecutions under -- or convictions under (b)(4) and possession in the Federal system and 750,000 in the states.

Federal prosecutors leave these to the states.

Which brings me back to my other answer to Justice Ginsburg's pointing out the government's argument about a parallel between this and a Federal criminal prosecution.

And the reason they want to do that, Justice Ginsburg, is that in a Federal -- actual Federal criminal prosecution, the burden of proof never matters, including because Federal prosecutors almost never bring these cases.

So here's what we tried to do.

This statute, (b)(4), was enacted in 1970, some 42 years ago.

We tried to identify one case in 42 years in which the burden of proof in the Federal case made any difference at all, and we were unable to.

And I would be really interested to know if my friend is able to identify one case in 42 years which it actually made a difference.

And the reason is, in an actual Federal prosecution, the FBI agent would come in and say, here are the drugs, and they were trying to sell it to an undercover officer.

It's never the case that it actually -- the defendant is in a position of trying to prove that it was a misdemeanor.

But what they are trying to do is to take that rule which is derived from Apprendi, that there is a burden of proof so that the government doesn't have to indict that it wasn't a (b)(4) offense, and take the silence of the state record, where these facts are completely irrelevant, the quantity and remuneration, and transpose them into the Federal system and take great advantage of the fact that the record is silent.

Justice Sonia Sotomayor: Mr. Goldstein, there are at least 93 cases, all right.

So--

Thomas C. Goldstein: Yes.

Justice Sonia Sotomayor: --And I don't know and I'm not going to ask you to prove to me how the burden of proof was met or not met in those.

But let me give you a different hypothetical.

Thomas C. Goldstein: Sure.

Justice Sonia Sotomayor: Let's assume Georgia has the Federal statute, but, differently than the Federal statute, it has a sale-distribution provision, and it has a small amount, no remuneration statute.

Thomas C. Goldstein: Yeah.

Justice Sonia Sotomayor: What would happen in those states?

Thomas C. Goldstein: There are about 15 of those states, and in those states, if you weren't convicted under the small one, then you would infer it wasn't a small amount and no remuneration, and the person would have committed an aggravated felony.

Our issue arises only when you have a situation in which the state is prosecuting people under the statute that would be a Federal misdemeanor.

If the state--

Chief Justice John G. Roberts: I'm sorry, go ahead.

Thomas C. Goldstein: --No.

If the state has a different system, as a material number of states do, in which they track the Federal system, and they have a small provision or a remuneration provision, which another nine states have a remuneration provision, in those situations, if you have a conviction that isn't under that social sharing provision, it's an aggravated felony.

Chief Justice John G. Roberts: Your use of the statistics, I think, assumes that Georgia and other states are prosecuting every case that comes before them, because that's how you get, you know, at least 750,000 nationwide, so much more than must involve tiny amounts.

But, of course, perhaps they don't prosecute the cases involving tiny amounts, so that most of those cases, or some percentage of them, may, in fact, also involve the serious type of conduct addressed by the Federal statute.

Thomas C. Goldstein: Well, I have one really good example of a prosecution for a small amount.

It's this case.

And we don't deny that there are -- Mr. Chief Justice, please do not misunderstand me to be arguing that every Georgia conviction or that 80 or 90 percent of them are the small ones.

What I'm trying to tell you is that a lot of them are just like this one, and I think the data bears that out.

And the question before you is, under a categorical approach, is it fair to presume that they're all felonies?

Is it fair to presume that what Congress recognized here is that there would be a correspondence between a conviction under this statute and the Federal aggravated felony of illicit trafficking in drugs, to strip the Attorney General of the United States of any opportunity whatsoever to consider the circumstances of the case?

We think that is not the best reading of the statute.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Shah.

ORAL ARGUMENT OF PRATIK A. SHAH ON BEHALF OF THE RESPONDENT

Pratik A. Shah: Mr. Chief Justice and may it please the Court:

Petitioner's proposed rule would confer a free pass from aggravated felony treatment to criminal aliens convicted under a majority of state laws that require neither remuneration nor more than a small amount.

Justice Sonia Sotomayor: What's the free pass?

The free pass is mandatory as opposed to discretionary deportation, correct?

So the free pass is that--

Pratik A. Shah: The free pass is that you would never have an aggravated felony for this conviction under any state that did not make an element of the state offense to disprove -- no remuneration or more than a small amount.

Justice Sonia Sotomayor: --But those convicted individuals would still be subject to deportation.

Pratik A. Shah: Yes, Your Honor, they would still be subject--

Justice Sonia Sotomayor: And nothing would stop the INS judge from considering the amount of drugs, correct, that the individual actually was involved in, and that could be introduced through hearsay, through almost any document, correct?

Pratik A. Shah: --Your Honor, you're talking about the discretionary cancellation of removal proceeding?

Justice Sonia Sotomayor: Yes.

Pratik A. Shah: It's true, Your Honor, that could come in there.

But Congress specifically enacted this aggravated felony provision to take away that discretion from the Attorney General.

The motivating factor behind--

Justice Sonia Sotomayor: Well, do you suggest that the immigration judges don't know that, and that they wouldn't weigh that desire heavily in a case in which a -- the convicted individual is proven to have sold the larger amount?

You still think they are going to cancel?

Pratik A. Shah: --What -- Your Honor, what Congress said when it passed this very provision was that immigration judges were granting too much discretionary relief to this very class of criminal aliens, and that is why it implemented this aggravated felony.

Now, Petitioner says it's not going to have a big deal on immigration -- big impact on immigration policy for the reason that you suggest: The Attorney General can do it at the back end.

But that--

Chief Justice John G. Roberts: Well, will you pause right there.

I don't -- you just made the argument that your position on Castro-Rodriguez is wrong.

You say Congress took away the Attorney General's discretion.

Then you come back and say, well, we're going to exercise that discretion under Castro-Rodriguez, and this Petitioner in particular can take advantage of it.

Pratik A. Shah: --Well, Your Honor, it's not an exercise of discretion under Castro-Rodriguez.

We at the tail end have an inquiry that I think mirrors the CSA scheme.

Remember that this aggravated felony provision in the INA incorporates by reference the CSA scheme.

What the CSA scheme provides is, as a default matter, any conviction for possession with intent to distribute marijuana will be a felony.

But the CSA scheme also provides a narrow mitigating exception for those who distribute just a small amount socially.

What our scheme does is that--

Chief Justice John G. Roberts: Is that -- is the authority for that Castro-Rodriguez?

Pratik A. Shah: --I'm sorry?

Chief Justice John G. Roberts: Is the authority for that the decision in Castro-Rodriguez?

Pratik A. Shah: To have that secondary proceeding?

Chief Justice John G. Roberts: Right.

Pratik A. Shah: Well, I think it comes from the statute, the INA, which incorporates the CSA scheme.

Because many of the State provisions don't offer that same affirmative mitigating exception that the Federal scheme does, what Castro Rodriguez does is it looks to the INA, which incorporates the CSA, and then provides a similar mechanism in immigration court.

But it's not an unprecedented inquiry.

The Board has been doing similar inquiries for at least a quarter of a century.

Justice Elena Kagan: Well, Mr. Shah, the Board may have been doing these inquiries, but I just don't understand the statutory argument, because the way the statute -- the way your own statutory argument runs is that if the conviction, the state conviction, was a conviction for possession with intent to distribute, then those are the elements of a Federal -- of a Federal felony.

And so the person -- and an aggravated felony.

So you say under the elements approach, this person has committed an aggravated felony.

And the statutory directive is that when a person has committed an aggravated felony, he is deportable, and there is no exercise of discretion that can come into play.

And so your whole back-end process, which says, oh, well, maybe not, maybe he's not automatically deportable, it doesn't come from the statute, and it seems to run into the statutory language which says an aggravated felon must be deported, the end.

Pratik A. Shah: Your Honor, I agree, the Government could have taken the hard-line approach that it's game over under the categorical inquiry because the elements--

Justice Elena Kagan: Well, that's what the statute says, and that's what your own statutory analysis says.

Pratik A. Shah: --Your Honor, I don't think it's inconsistent with the statutory scheme.

In fact, I think it's consistent.

And here's one way to think about it.

This -- this particular aggravated felony is a little bit complicated because it incorporates by reference in two different levels the CSA.

Congress -- let's assume Congress rewrote the aggravated felony definition to eliminate the incorporation by reference.

I think what the equivalent, the functionally identical formulation would be -- the definition of the aggravated felony is,

"any distribution of a controlled substance, unless the defendant shows that it involved a small amount of marijuana for no remuneration. "

That would incorporate both the presumptive felony provision, any distribution of controlled substance -- you have the same two elements -- and then it would add in the proviso that it's in the CSA mitigating exception.

Functionally identical.

Aggravated felony is,

"any distribution of a controlled substance, unless the defendant shows that it was a small quantity for remuneration. "

Chief Justice John G. Roberts: This is--

Pratik A. Shah: What our inquiry does is--

Chief Justice John G. Roberts: --Go ahead.

I'm sorry.

Pratik A. Shah: --What our inquiry does is allow the Board to get to that second part of the definition, the “ unless ” clause, and that mirrors exactly other aggravated felony provisions in the INA.

Justice Anthony Kennedy: But you've answered Justice Kagan's question by -- she said, doesn't your own interpretation of this statute require the opposite result and -- or the harsh result?

And you say, well, suppose Congress wrote a statute this way.

But that wasn't her question.

The question is--

Pratik A. Shah: Your Honor, I'm not positing--

Justice Anthony Kennedy: --You -- you said that Congress could write a new statute.

Of course Congress could write a new statute, but what about this one.

Pratik A. Shah: --I'm not positing a new statute.

I was simply taking out the incorporation by reference so we could look at it in a different way.

I think it's functionally identical to the provision at issue here.

And I think it's--

Justice Elena Kagan: No, I'll just read you, Mr. Shah, this sentence from your brief, and I could read you a thousand of these in your brief:

"Because Petitioner's Georgia conviction necessarily established that he knowingly possessed marijuana with the specific intent to distribute it, that conviction constitutes an aggravated felony. "

Well, if that conviction constitutes an aggravated felony, he has to be deported and there is no exercise of discretion that this statute allows.

Pratik A. Shah: --Well, Your Honor, I -- I would say that it presumptively creates the aggravated felony, and it's because of that--

Justice Elena Kagan: Well, now you've just put in words into your brief.

Pratik A. Shah: --Well, well--

Justice Elena Kagan: --and -- and really, truly you say this 10 or 15 times.

Pratik A. Shah: --Well, Your Honor, the heading to the brief says “ presumptively ”, and so I didn't use that word every time, but I think the point is that it would be the -- the aggravated felony has that “ unless ” clause.

And if you look at other aggravated felony provisions in the 34 of the Government's brief, it defines an aggravated felony as certain document fraud crimes, and then it has a clause that says, quote, “ unless ” --

"unless the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting or abating only the alien's spouse, child or parent to violate a provision of the INA. "

So you could say ball game over once you have shown the document fraud crime under the categorical approach.

But the INA specifically has a provision that says unless the alien can show that he committed the offense for the purpose of assisting and abetting--

Chief Justice John G. Roberts: This is -- this is a new position for the Government.

My understanding is that you -- your clients were on the other side of this position in Castro-Rodriguez itself; is that not correct?

Pratik A. Shah: --Well, Your Honor, I don't think that we categorically deny that you could have this sort of proceeding, and in the op to this case, I know Petitioner says this is a new position in this case.

Pages 13 through 16 of our op embrace Castro-Rodriguez as the right way to do it.

I think--

Chief Justice John G. Roberts: But that was a change in the Government's position, wasn't it?

Pratik A. Shah: --Your Honor, I can say that the -- the Government did dispute the particular facts in Castro-Rodriquez.

I can't say that they categorically rejected the availability of that sort of inquiry, and that sort of inquiry is not new.

If you look at the Grijalva decision, which is discussed on -- in footnote 23 of our brief on page 36, that was a precursor to the controlled substance ground of removability that is currently in effect.

And so if you look at the language of that precursor provision, essentially it said any aliens deportable for a drug offense, unless that drug offense involves simple possession of marijuana of 30 grams or less.

Chief Justice John G. Roberts: So what does -- in a case in which the Attorney General can cancel removal, putting aside this case, what are the sort of things he looks at in deciding whether or not to cancel removal?

Pratik A. Shah: It's a balance of equities.

After, assuming that the -- the alien has established the three eligibility criteria set forth, it will be a balance.

It's a favorable exercise of discretion; it's a balance of the equities.

Chief Justice John G. Roberts: So one of the things presumably is the amount of drugs involved, whether they were for intent to distribute for remuneration -- all the sorts of things that you say he can consider under the provision that says he does not have the authority to cancel removal.

Pratik A. Shah: Your Honor, those are the sorts of factors that might be open to consideration, but what Congress did is it took away the ability for the Attorney General to exercise that discretion.

That was the main purpose of this very aggravated felony provision.

Now Justice Sotomayor, if I can go to your--

Justice Sonia Sotomayor: Each time you get -- you say that, you get back into the hole that Justice Kagan has been asking you to climb out of.

If -- if Congress's intent was to bar discretion, then I'm not quite sure how you get to your alternative to get out of your--

Pratik A. Shah: --Your Honor--

Justice Sonia Sotomayor: --overinclusiveness argument.

Pratik A. Shah: --Your Honor, this will bar discretion in the vast majority of cases, and here's why.

If I could go back to the data question that you asked, Justice Sotomayor, we do have Federal data, and I interpret the data a little bit differently than my colleague.

What data we have is that over the last decade there have been over 60,000 convictions under -- under section 841(a) for crimes involving something more than possession of marijuana, 60,000.

There have been in those 10 years exactly 20 that have been sentenced under section 841(b)(4).

My colleague combines 844(a), which is a possession offense, but if you isolate out of the data only those who qualify for the mitigating exception, those who are charged with distribution of marijuana but only have a small amount of remuneration, you have 20 out of over 60,000.

I think this is a fairly atypical case.

To the extent this Petitioner--

Justice Ruth Bader Ginsburg: Do you agree with Mr. Goldstein when he says in reality it's not an affirmative defense, that the defendant never has to prove the amount?

Pratik A. Shah: --I -- I don't agree with that, because if it were in fact the case that the Government had to disprove the -- the small amount and, more importantly, the remuneration element, that would be a very different statute.

Every court of appeals and lots of the Federal--

Justice Sonia Sotomayor: I'm sorry, counselor.

I -- the Government can do it very easily.

If you have less than an ounce of marijuana and nothing else from which you can infer an intent to sell or distribute, and you have no proof that this individual's engaged in drug trafficking, what more does a defendant have to show?

Pratik A. Shah: --Oh, I--

Justice Sonia Sotomayor: How does it raise his burden of proof?

Pratik A. Shah: --I'm not saying it -- the defendant has to show more.

I believe Justice -- I thought Justice Ginsburg's question is what would the Government have to show to disprove it, and I think--

Justice Sonia Sotomayor: And I guess my point is that one, which is don't the facts that the Government have either show it or not show it in virtually every instance?

Pratik A. Shah: --I think it's a very different question.

If you put the burden on the Government to show that in fact no remuneration was involved, the Government would have to meet its burden in a criminal case to show beyond a reasonable doubt that there was no remuneration at all.

That is going to change the result in a large number of cases where there is a relative -- it's going to be the universe of cases where there is a relatively small amount of drugs involved.

Justice Sonia Sotomayor: It would be less than an ounce.

Pratik A. Shah: Right.

But in -- and in that universe of cases, in fact the presumption is probably going to be that it's not for a distribution or remuneration.

Justice Sonia Sotomayor: Can I go back to your substantive argument?

Pratik A. Shah: Yes.

Justice Sonia Sotomayor: All right.

This is a -- you are right; it's an unusually crafted statute, and really what the issue is, generally what you have with lesser included offenses is you have a base offense and then an enhancement that goes up.

You commit the base offense--

Pratik A. Shah: Yes.

Justice Sonia Sotomayor: --of burglary, but if you did it with an explosive or you did it with a dangerous weapon, it goes up.

Pratik A. Shah: That's exactly right.

Justice Sonia Sotomayor: And applying the categorical approach is relatively easy there because either the State offense includes the addition or it doesn't.

This is sort of in reverse.

You've got a statute with the same elements that can be either a misdemeanor or a felony, and you're saying it can be either under the CSA, but we have to assume it's the greater.

Because--

Pratik A. Shah: Your Honor--

Justice Sonia Sotomayor: --of Apprendi, because of -- of--

Pratik A. Shah: --I -- I think it's because of the proper interpretation of the statute.

Apprendi might have influenced that interpretation of the statute, but every court of appeals that has interpreted this statute has said that the -- the default punishment is the punishable up to 5 years.

Justice Sonia Sotomayor: --But that's under Apprendi.

Pratik A. Shah: Well, both before and after Apprendi, Your Honor, this statute was interpreted the same way.

Apprendi didn't change anything because there were no sentencing factors or elements--

Justice Sonia Sotomayor: That's a--

Pratik A. Shah: --To get to the 5-year--

Justice Sonia Sotomayor: --Didn't we -- didn't we talk about the categorical approach in footnote 3 of our case in Carachuri?

Pratik A. Shah: --Uh-huh.

Justice Sonia Sotomayor: Where we said that in talking about the generic Federal offense, whether it's a felony or not, that we can't look at just strictly the elements of the crime, but we have to also look at the sentencing factors, because when we're talking about what constitutes a misdemeanor or a felony under Federal law we have to look at both.

Pratik A. Shah: Well, Your Honor, what Carachuri involved was something very different.

It involved a recidivism factor, an aggravating factor.

When you are talking about an aggravating factor Apprendi jurisprudence has treated those somewhat equivalent to an element, because it raises the statutory maximum.

And so when you are trying to decide whether something is punishable as a felony, it's natural to look at the aggravating factor.

The other thing I would say about Carachuri is that it's easily distinguishable on the grounds that Justice Ginsburg raised.

It -- the Government's argument in Carachuri was much more difficult.

The Government was trying to rely on a recidivism factor that was not part of the predicate conviction, and it was trying to rely on that factor to elevate what was otherwise a misdemeanor under both State and Federal law to a felony.

Here, the predicate conviction itself has all the elements that are required for a Federal felony under the CSA, namely possession of marijuana and a specific intent to distribute it.

Justice Sonia Sotomayor: But the same elements would go to the misdemeanor.

Really the issue for me is it could be one or both and when do we tell the immigration judge that he can, should, or should not--

Pratik A. Shah: I think there are--

Justice Sonia Sotomayor: --choose between the two?

Pratik A. Shah: --I think there are -- I think there are two ways, Your Honor, that -- two different lines of reasoning that show that the Government's approach to the categorical part of the inquiry is -- is the right approach, and not Petitioner's approach.

The first is--

Justice Sonia Sotomayor: However you do it, the misdemeanor still has the same three elements.

Pratik A. Shah: --Well, here's -- here's how--

Justice Sonia Sotomayor: So how do we choose between it being a misdemeanor or a felony?

Pratik A. Shah: --Right.

I think here are the two ways you get there.

First is by looking at how this Court has consistently formulated the categorical inquiry.

Starting with Taylor, pre-Apprendi case, compare the elements of the predicate offense to the those of the generic offense.

Fast forward past Apprendi through all of the more recent cases, Lopez and not -- still the same inquiry, focusing on the elements of the predicate and the elements of the generic.

If that is not enough for you, Justice Sotomayor, if there is still some uncertainty as to when you have mitigating factors, like in this case, and the question is, well, does the predicate conviction have to affirmatively negate those narrow mitigating criteria, then this Court can look, if it wants to go to first principles, look at this Court's decision in Nijhawan.

There, it had a different aggravating felony, certain fraud and deceit offenses which resulted in a $10,000 loss to the victim.

What the Court said, look, fraud and deceit, those are clearly elements, we are going to apply the categorical approach to figure out whether those elements are satisfied.

But the $10,000 loss factor, we're not sure.

We're not sure whether the predicate offense has to affirmatively establish it or not.

And so what the Court did is it did a survey of the 50 states.

It looked at the 50 states.

And it turns out that in a vast majority of those states, the predicate conviction will never establish that $10,000 loss factor, and so you're going to have a vastly underinclusive aggravated felony, and that's something that Congress -- that Congress could not have intended.

The Court said Congress would not have intended its aggravated felony provision to apply in such a limited and haphazard manner.

I submit that's exactly what you have here on pages 26 to 30 of our brief.

And Petitioner does not take issue with a single one of the statutes that we cite, and we go through all 50 of them.

We show that in a clear majority of the states, the predicate conviction will not establish that there is remuneration or more than a small amount.

Congress cannot--

Justice Elena Kagan: Mr. Shah, I think the problem with your main argument is that it leads you to a result that you don't want to accept, because your main argument is all we've done in our past cases, and I can argue with this, but your argument is all we've done is compare the elements.

But if all we do is compare the elements, then we don't get to your discretionary scheme in which we also admit evidence of the case-specific nature of the offense.

I mean, so your arguments all go towards a very purist solution.

And then you say, oh, no, that's a crazy solution.

It's a crazy solution because we would wind up saying that misdemeanants like this person, like people who are actually convicted under (b)(4) who are clearly misdemeanants, would wind up as aggravated felons and -- and must be deported.

Pratik A. Shah: --Well, first, Your Honor, I am glad that we have an agreement on the first part of the categorical inquiry, because I think that is the main part of the inquiry that -- that would establish--

Justice Elena Kagan: I don't think we really have an agreement--

Pratik A. Shah: --Okay.

Justice Elena Kagan: --because it seems to me that Carachuri actually says we don't just look to elements.

But if we were just to look to elements in the way you're arguing for, we wouldn't get the result that you're arguing for.

Pratik A. Shah: Again, Your Honor, I think you have to look at this particular aggravated felony, which I think is structured similar to other aggravated felonies in the INA.

If you look at the aggravated felony in the INA that's on page -- top of page 34 of our brief, and that is the one about document fraud crimes, it says the alien -- then, if the alien then shows that that document fraud crime was perpetrated in order to help a family member, then no more aggravated felony.

How does the alien make that showing?

He comes into immigration court -- after it's already been established that you have the predicate document fraud felony, he comes into immigration court.

He has to bring forth evidence on his own that shows that it satisfied this familial exception to that document fraud aggravated felony.

I think the--

Chief Justice John G. Roberts: And the whole point -- the whole point is that there is no similar provision in the statute at issue in this case, right?

Pratik A. Shah: --I think the point is that there is a similar provision.

In the -- the INA here incorporates the CSA to define the aggravated felony.

The CSA says it's a felony if you have possession plus intent to distribute, unless the defendant shows -- and this is how it has been interpreted by every court of appeals that has interpreted the CSA -- unless the defendant shows it was only a small amount for no remuneration.

That is an identical formulation to some of the other aggravated felonies in the provision, and how those other aggravated felony provisions have been interpreted is to allow the alien to come into immigration court to show the exception.

We are not aware of a single court decision that has ever interpreted any similar provision in any of the other aggravated felony provision to require the predicate conviction to affirmatively negate it.

And that's exactly what Petitioner's main submission is, that this predicate conviction has to affirmatively negate the possibility of a narrow mitigating exception.

That is--

Justice Elena Kagan: I don't think that that is quite right, Mr. Shah, because if you read this statute, what it most looks like is that Congress is simply classifying two different kinds of conduct.

Congress has the -- the social sharing conduct, and that's in one section.

And the everything else, the more dangerous conduct, is in another section.

And so it's not something where it's like, oh, you're trying to get them to negate a specific -- a point.

Congress has created two separate sections, two -- and one is a felony, and one is a misdemeanor.

And that's the real way to understand this statute.

And then, the categorical approach suggests, well, in that case, we accept the underinclusion rather than the overinclusion.

Pratik A. Shah: --Well, Your Honor, I disagree with that characterization of that statute.

Every court of appeals that has considered this statute has rejected the argument that we have two separate offenses and that the -- that the government, in order to get to the higher offense, the default felony provision, that the government would have to treat as elements the mitigating criteria of remuneration and small amount.

Every court of appeals has rejected that.

If this statute were drawn as you suggest, and it were elements of a crime, that is, you had two separate offenses, one is possession with intent to distribute a small amount for no remuneration, or it could just say possession with intent to distribute marijuana, if that was one distinct offense that was a misdemeanor, and then Congress created a second offense that says in cases where there is more than a small amount and which there is remuneration, then you get a five-year maximum instead of a one-year maximum, that is effectively making as an element the government to disprove both the possibility of no remuneration and more than a small amount.

If that was the statutory scheme that were at issue, I would agree with you, Petitioner would prevail under the categorical approach.

That's not the cat -- that's not the statutory scheme here.

They do not disagree with that.

They agree that every court of appeals that has interpreted this has interpreted it as one offense, and that those mitigating criteria are just that, they are mitigating exceptions and not offense elements.

I think the other point I would make, Your Honor, is that--

Justice Elena Kagan: I guess I don't understand, Mr. Shah.

That seems just a question of labeling to me.

I mean, why should we -- why should we accept that labeling rather than, look, what Congress did here was to say that certain kinds of offenses are felonies deserving of grave punishment, and other kinds of offenses are misdemeanors deserving of less than a year in prison, and we see those categories of conduct differently.

And if you are saying that if Congress had said two separate offenses, then the categorical approach means that Mr. Goldstein's client wins, I guess I just don't get what in this statute suggests something different for that.

Pratik A. Shah: --Two things, Your Honor.

One is I don't think it's a matter of labeling because Congress knows that these labels actually have big consequences.

If you made those mitigating criteria elements, that would be a very different statute which the government in every case would have to show beyond a reasonable doubt that it's more -- more than a small quantity.

That may not be difficult; but, in cases where there is a small quantity, it may, in fact, be difficult to disprove--

Justice Elena Kagan: Counsel--

Justice Antonin Scalia: Counsel, I thought that when Congress enacted this provision there was not the distinction between elements and sentencing factors that we now have, that the statute was enacted, in other words, before Apprendi.

Pratik A. Shah: --Your Honor, this statute was enacted before Apprendi, but Apprendi doesn't change the interpretation of this statute.

This statute -- in the relevant criteria.

This statute was interpreted -- interpreted both the same before and after Apprendi with respect to the default provision because the default provision doesn't require any factors or elements at all to get to the felony provision.

Justice Antonin Scalia: That may be, but it certainly goes to your argument that Congress had in mind some distinction between elements and sentencing factors.

Pratik A. Shah: Well, I think what Congress had in mind is that those mitigating criteria would not be treated as elements.

And, Justice Kagan, to get back to your question, how do we know.

Well, we can look at the inquiry that the Court did in Nijhawan.

It would not be -- it would not be consistent with congressional intent to assume that Congress intended that this aggravated felony provision would not have any effect in the clear majority of states that do not make either remuneration or more than a small quantity an element of the offense.

That is what Nijhawan was about.

It was trying to figure out, did Congress intend this particular piece of the aggravated felony description to be subject to the categorical approach or not; that is, did it require the predicate conviction to establish or negate it?

And the right way to look at that is to look at the state of the State laws.

And here we know that in a clear majority of States, they do not require remuneration, they do not require more than a small amount, you will never get an aggravated felony conviction out of a majority of States.

Congress could not have intended that result.

That's what Nijhawan stands for.

Justice Anthony Kennedy: If you do not -- if you do not prevail in this case, can you simply solve this problem in the discretionary removal proceedings?

Pratik A. Shah: Your Honor, I think that's--

Justice Anthony Kennedy: You just say we're going to -- we're going to order you removed unless you bring in evidence that this was a minor amount.

Period.

Pratik A. Shah: --Your Honor, I -- I think that that -- I think that's an open question.

That's one that has not come up yet.

I think Congress specifically--

Justice Anthony Kennedy: Well, don't you think it's -- it's under the law, and under administrative practice that it's an option available to you?

Pratik A. Shah: --It may -- it may be -- be an option open to the Attorney General to do that.

The Attorney General would have to issue an order to that ground.

I imagine it would be challenged and we'd have to litigate it.

But what we do know is that Congress didn't want those sort of discretionary determinations made.

Congress knew that all of these areas--

Justice Sonia Sotomayor: Counsel, under the -- under the -- do you have the same answer as Mr. Goldstein, that the modified categorical approach wouldn't permit the immigration judge to look at the plea allocution to determine the amount?

Pratik A. Shah: --I think the modified categorical approach would allow -- would allow--

Justice Sonia Sotomayor: So that in -- in many of these cases that we're talking about, it is possible that the plea allocution itself would set out the amounts that the alien sold or show that he sold something--

Pratik A. Shah: --Yes, Your Honor, I think--

Justice Sonia Sotomayor: --and that would take care of this issue of how many people are escaping automatic removal.

Pratik A. Shah: --I think if the plea agreement or plea colloquy set forth the amount and it was more than a small amount, I think the modified -- our position would be that the modified categorical approach would allow you to reach that.

Petitioner's and his amici's argument are essentially that the plea agreements aren't going to say that in a large majority of these cases for the simple reason that a -- that a vast majority of the States don't make more than a small quantity an element of the crime and so it's going to be irrelevant.

But that simply shows--

Justice Sonia Sotomayor: But the vast majority -- the vast majority in my experience do -- do say whether the crime was for sale or distribution.

Pratik A. Shah: --And if that's the case, then the Government would agree that if we were to lose this case, we could then look at -- look at that evidence to -- to show -- to disprove more than a small amount, something that's not an element in any of the State crimes.

Justice Ruth Bader Ginsburg: Are there any other consequences?

We've been talking only about dispensation from removal.

But are there any other consequences that matter?

Pratik A. Shah: Yes, Your Honor, there are other consequences that matter.

For example, a person who's not -- a person is not only removable and not only deprived of cancellation relief.

There -- those who are aggravated felons are just essentially deprived of all forms of discretionary relief except for Convention Against Torture relief and withholding of removal.

It also has implications beyond the immigration context.

At the same time that Congress enacted this aggravated felony provision, it made it a sentencing enhancement provision in criminal prosecutions for illegal reentry.

And so in any illegal reentry prosecution, if the defendant is also -- has a prior conviction for marijuana distribution, they would be subject to a significant sentencing enhancement under both the guidelines and section 1326, the Illegal Reentry Statute.

If Petitioner's rule were to prevail in a significant number of those cases in any State in which it did not have those relevant elements, that sentencing enhancement would no longer have operative effect.

So, Your Honor, it's not simply the case, as Petitioner would like to say, that the only thing here is -- is a difference between removability and cancellation of removal relief that the Attorney General can fix on his own.

There are other ancillary consequences, and I think the criminal -- the consequence of the criminal prosecution is a significant one.

Chief Justice John G. Roberts: Does that -- does the Castro-Rodriguez proceeding take care of those additional consequences?

Pratik A. Shah: If I may respond, Your Honor.

Chief Justice John G. Roberts: Sure.

Oh, yes.

Pratik A. Shah: Thank you.

I don't -- I think what -- we haven't had any criminal cases where the -- where an alien has come in and tried to make the argument.

I imagine if Petitioner prevails, it will be made in every single one of those 1326 reentry prosecutions.

I think if the Court were to accept the Government's submission both on the threshold categorical inquiry and on the tail-end fact-specific inquiry, I think a defendant would probably be able to have the opportunity to try to make that showing in the Federal sentencing proceeding as well.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Goldstein, you have three minutes remaining.

REBUTTAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE PETITIONER

Thomas C. Goldstein: Mr. Chief Justice, I told you I was going to acknowledge the strengths of the other side's case, and I want to just recognize that you can conceivably read the statute their way.

But the question is if you actually adopt their statutory construction argument and you say we're going to look at the elements and it's an aggravated felony, we're comparing two different ways of reading it.

And they admit that their way of reading the statute comes up with an answer that Congress couldn't possibly have intended by treating all these misdemeanants as aggravated felons.

Now, their solution is to add a whole 'nother proceeding that isn't in the statute.

Another solution is just to recognize their reading is wrong.

If it produces this ridiculous result that Congress couldn't have intended and our reading is perfectly sensible and not only do you have the solution of the removal proceedings, but also Justice Kennedy's suggestion of the Attorney General's ability to issue an order; Justice Sotomayor's solution of being able to look at the plea allocution, questions that aren't presented here, but lots of ways of addressing any adverse consequences of our rule.

What in statutory construction allows us just to add this procedure that--

Justice Stephen G. Breyer: But it's the word “ punishable ”, I think.

Thomas C. Goldstein: Well, “ punishable ” is a good word--

Justice Stephen G. Breyer: So you're thinking under Georgia law this is punishable as a felony only if it wasn't a small amount used for personal use, you see, and therefore, they go into the hearing.

It's not punishable as an 841 felony, unless those two things are absent and therefore they have the hearing to find out.

And the word “ punishable ” doesn't appear in the statutes, the other ones that we've construed.

That's what I thought they were doing.

Thomas C. Goldstein: --Okay.

But I don't think that's actually what they're doing because Mr. Shah did not deny Justice Kagan's questions about yeah, it would produce this ridiculous result and so we're going to add this other proceeding.

When they say -- what they do with punishable is they say look at only the elements of the Federal offense.

And that's how they say that any Georgia conviction, even though, Justice Ginsburg, lots of these convictions will just be equivalents to Federal misdemeanors, because they are the equivalent of -- because they involve possession with intent to distribute, those are the only elements of the offense, then they're all punishable as felonies even if they would be a misdemeanor.

So I don't think punishable helps them, and they don't seem to argue on the basis of punishable.

So my base point to you is that why, in choosing between these two readings, we have strengths, they have strengths.

Their argument starts from the proposition that theirs produces a result that Congress couldn't have intended.

And, Mr. Chief Justice, they did start out with the hardcore position.

I can give you the example.

It's our case.

Remember, even though this is 1.3 grams, even though he was not convicted of selling, they ordered him mandatorily deportable without an inquiry into the underlying facts.

They recognize that can't be right.

And so they are trying to tack something on to the statute that doesn't appear in the statute.

The last point that I want to address is actually a very small one, and that's about Justice Thomas's dissent in the Lopez case on whether you should look to the State definition of whether this is a felony or instead, the Federal one, because the Government cites it in a footnote in their brief.

And we would only say that the Government is not relying on the Lopez dissent.

It invokes Lopez repeatedly in the Federal courts.

And so, this is a situation in which the Court's decision in Lopez should take hold as a matter of statutory -- stare decisis, and what matters here is the Federal treatment of it.

When you don't know if the Georgia conviction is a felony or a misdemeanor under Federal law, you don't know which one it is, what the categorical rule says is that the State conviction doesn't necessarily establish it's a Federal offense, the Federal felony here, and therefore, you don't treat it that way.

The arguments that my friend ended with, ended with about hey, this is going to be applied in Federal sentencing and lots of other contexts makes it worse, not better.

How in the world are we going to have these others Castro Rodriguez proceedings, these other intermediate proceedings about determining the facts of the offense in Federal sentencing?

It gets vastly more complicated.

Our rule addresses the core concern of Congress.

It gets the right people deported.

Their rule, because it's overinclusive, there will be noncitizens who can't prove their offense was a misdemeanor and they shouldn't be removed.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel, the case is submitted.