Wednesday, February 21, 2007

Jeune: Pennsylvania Drug Possession Not Necessarily Trafficking Aggravated Felony

Jeune v. Gonzales
Filed 02/20/07, No. 05-3103

Pennsylvania possession with intent to manufacture or deliver a controlled substance is not always an aggravated felony for drug trafficking.

As a follow-up to the analysis in Garcia v. Gonzales, 462 F.3d 287 (3d Cir. 2006), the statute in question, 35 Pa. Cons. Stat. Ann. 780-113(a)(30), is not categorically an aggravated felony and on the facts of this case, it is possible that the conviction could have fit in the federal exception to federal trafficking for possession without renumeration.

As set out in Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002), there are two ways an offense can be held as an aggravated felony for illicit trafficking: either first (the illicit trafficking approach) if the state criminal statute contains a trafficking element or second (the hypothetical federal felony approach) if the conviction would qualify as a felony under the Federal Controlled Substances Act.

First, where the record of conviction contains virtually no details, a plain conviction under the Pennsylvania statute does not categorically qualify as an aggravated felony because it covers more than simply crimes involving the unlawful trading or dealing of a controlled substance. The Third Circuit gave no weight to how the sentencing judge used the sentencing provision titled trafficking because any conviction (trafficking or non-trafficking) under that statute would always trigger that sentencing provision. Just because the sentencing provision is titled trafficking does not automatically make the criminal statute into a trafficking statute.

Second, it does not necessarily qualify as a felony under the Federal Controlled Substances Act because it is unclear whether the crime involved distributing a small amount of marijuana for no renumeration. Under the federal laws, that type of activity is not a felony. The Pennsylvania statute encompasses distribution without renumeration along with trafficking. The record of conviction left it entirely unclear whether he had a miniscule amount of marijuana, so it would not necessarily be a felony under federal law and cannot be considered an aggravated felony.

This type of analysis is extremely complex but as you can see, extremely important! Great work by Steven Morley (overturning the ruling by IJ Donald Ferlise and the BIA).


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