Friday, May 3, 2013

Moncrieffe v Holder

     Moncrieffe is a Jamaican citizen who is legally here in the US and was arrested for having  1.3 grams of marijuana in his car. "He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. The Federal Government sought to deport him, reasoning that his conviction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. §841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, rejecting his reliance on §841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, §841(b)(1)(D), provides the default punishment for his offense."
     "Under the categorical approach generally employed to determine whether a state offense is comparable to an offense listed in the INA, see, e.g., Nijhawan v. Holder, 557 U. S. 29–38, the noncitizen’s actual conduct is irrelevant. Instead “the state statute defining the crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v. Duenas-Alvarez, 549 U. S. 183. The state offense is a categorical match only if a conviction of that offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U. S. 13. Because this Court examines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U. S. 133."

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