Possession with intent to deliver is an aggravated felony

Garcia v. Holder, March 28, 2011 (published).

The Court found that a conviction for attempting to possess marijuana with the intent to deliver (MCL 333.7401(2)(d)(iii)) is an aggravated felony.

The government conceded and the court agreed that this offense is not a trafficking offense because the statute does not require commercial dealing.

However, there is a second way that a drug offense can be an aggravated felony and that is if it would be a felony under the Controlled Substance Act (CSA).  The Court utilized the categorical approach to determine if the elements of the crime would be a felony under the CSA.

Possession with intent to deliver is a felony under 21 USC 841(a)(1).  However, a defendant who distributes a small amount of marijuana for no remuneration is punished as a misdemeanor.  21 USC 841(b)(4).

There is a circuit split.  The Sixth Circuit sided with the First and Fourth circuits in holding that the quantity and remuneration factors are not elements of the offense that need to be proven under 841(a)(1) and the misdemeanor provision is not a stand-alone crime.  Rather, it is a misdemeanor sentencing provision.  The Second and Third Circuits held otherwise.

It is interesting to note that the Court did not cite to the BIA's pronouncement on the question in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008).  The Court reached the same result and the BIA.  Is this a sign that the Court is not deferring to the agency on these matters of interpreting state and federal criminal law?  If so, that is a (small) positive in an otherwise negative case.

The Court also found the noncitizen ineligible for a 212(h) waiver because it concluded that he was not convicted of a single offense of simple possession of less than 30 grams of marijuana.  However, the Court did not consider that a noncitizen need only be convicted of an offense "relating to" this crime.  The BIA in
Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007) and Matter of Moncada, 24 I&N Dec. 62 (BIA 2007) interpreted "relating to" broadly.  The BIA looked beyond the simple fact of conviction to a circumstance-specific, or factual inquiry.  For example, possession of paraphernalia might relate to simple possession whereas possession in a school zone or prison would not.

On the one hand, a strict categorical analysis is generally helpful to noncitizens but in Garcia, a broader, circumstance-specific analysis might have helped him.  Although, he would have born the burden of proving the quantity and the record of conviction was inconclusive.