U.S. Supreme Court
Immigration – removal — aggravated felonies
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, it is not an aggravated felony under the INA.
The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. Thus, 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. Possession of marijuana with intent to distribute is clearly a federal crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U. S. C. §841(b)(1)(D) provides that, with certain exceptions, a violation of the marijuana distribution statute is punishable by “a term of imprisonment of not more than 5 years.” However, one of those exceptions, §841(b)(4), provides that “any person who violates [the statute] by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, i.e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Thus, the conviction did not “necessarily” involve facts that correspond to an offense punishable as a felony under the CSA.
662 F. 3d 387, reversed and remanded.
Sotomayor, J.; Thomas, J., dissenting; Alito, J., dissenting.