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US justices to decide if marijuana crime justifies deportation

US justices to decide if marijuana crime justifies deportation

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The U.S. Supreme Court will decide whether an alien’s state-law conviction for possessing marijuana with intent to distribute constitutes an “aggravated felony” justifying deportation, even though the record of conviction does not show that the underlying conduct would constitute a felony under federal law.

The Court will review a 5th Circuit decision holding that a Georgia marijuana conviction should be considered a felony under the federal Controlled Substances Act and an aggravated felony for purposes of immigration law.

The defendant is a native of Jamaica with permanent residency status in the U.S. He pleaded guilty to possessing marijuana with intent to distribute in Georgia. Federal immigration authorities subsequently commenced removal proceedings, concluding that the defendant had committed an aggravated felony within the meaning of federal immigration law.

The defendant argued that his state conviction should not be considered a deportable felony offense because the Georgia drug law at issue encompasses misdemeanors. More specifically, the defendant contended that, because the record of his conviction failed to disclose the amount of marijuana involved or that he sought remuneration, his drug conviction should be treated as a federal misdemeanor.

But the court observed that, under 5th Circuit precedent, the “default” sentencing range for a marijuana distribution offense is the felony provision rather than the misdemeanor provision of §841 of the Controlled Substances Act. Here, the court adopted the same interpretation of §841 for immigration purposes as for sentencing purposes.

“[The defendant] pled guilty to possession of marijuana with intent to distribute under [the Georgia criminal code]. Even if that section of the Georgia code could cover conduct that would be considered a misdemeanor under §841(b)(4), [the defendant] bore the burden to prove that he was convicted of only misdemeanor conduct. Otherwise, as is true for federal defendants charged under §841, his crime is equivalent to a federal felony,” the court said. It noted that the federal circuits are divided on this issue.

A decision from the Supreme Court is expected next term.

Moncrieffe v. Holder, No. 11-702. Certiorari granted:  April 2, 2012.

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