Public Defense

Simple Possession of Even Large Quantitites of Drugs Is Not an Aggravated Felony (or a Drug Trafficking or Controlled Substance Offense)

By Brad Bogan

First, some background for those of you who aren't familiar with the Texas controlled substance scheme: Texas has no statute that include the elements of possession of marihuana with the intent to distribute it. It does for other controlled substances, but not for marihuana. Instead, there's a statute prohibiting delivery of marihuana, and a separate one criminalizing simple possession of marihuana, with penalties increasing in tandem with the amount of marihuana delivered or possessed.

Arce had a prior Texas conviction for possession of between 50 and 2000 pounds of marihuana. The question here is whether that's an "aggravated felony" under our old friend 8 U.S.C. § 1101(a)(43).

The answer: no. The court observed that under the Supreme Court's decision in Lopez v. Gonzales, "to constitute an aggravated felony . . . a prior state offense must either involve some sort of commercial dealing or be punishable as a federal felony under the Controlled Substances Act." Arce's prior conviction for simple possession, even of 50 to 2000 pounds of marihuana, doesn't pass either test. Simple possession doesn't involve commerical dealing, and "[e]ven though possession of a large amount of drugs may support a conviction for the federal felony of possession with intent to distribute, simple possession is only a misdemeanor under federal law." And although the opinion doesn't mention it, that's exactly what the Supreme Court suggested in Lopez (see 127 S. Ct. 625 nn.4, 10 & accompanying text).

But don't make the mistake of thinking that Arce-Vences is limited to the § 1101(a)(43) aggravated felony definition. Its holding---that simple possession of a large quantity of a drug is still just simple possession---should also apply to other drug offense definitions that exclude simple possession: §2L1.2 ("drug trafficking offense"), §4B1.2 ("controlled substance offense"), and 18 U.S.C. §924(c)(2) ("drug trafficking crime"). Arce-Vences should also put to rest any lingering concerns about the reasoning in the since-withdrawn panel opinion in United States v. Gutierrez-Bautista, which held that a state drug statute encompassing simple possession of more than 28 grams of methamphetamine, and incongruously captioned "trafficking," was categorically a §2L1.2 DTO because the statute essentially treated drug quantity as a proxy for an intent to distribute. The replacement opinion in Gutierrez-Bautista relied on entirely different reasoning to support the enhancement in that case, so Arce-Vences is the controlling authority on this issue.

Full post as published by Fifth Circuit Blog on January 03, 2008 (boomark / email).