The Ninth Circuit held in Roberto Roman-Suaste v. Holder that a conviction for California Health and Safety Code section 11359 (possession of marijuana with intent to sell) is categorically an aggravated felony as a drug trafficking offense pursuant to INA § 101(a)(43)(B), 8 USC § 1101(a)(43)(B).
The petitioner had argued under Moncrieffe that there might be situations where a defendant is convicted of HS § 11359 for distribution for insignificant payment or payment for social, medical, or family purposes, which would not be illicit trafficking. The court disagreed. It found that any type of distribution for remuneration would be illicit trafficking and thus an aggravated felony under Moncrieffe.
The court further rejected the petitioner’s argument that California extends aiding and abetting liability beyond the generic federal definition, an argument that had little chance given the Supreme Court’s decision in Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).
In an extremely helpful decision for noncitizen defendants, the Ninth Circuit held in Rendon v. Holder that California Penal Code § 459 (burglary) is not an aggravated felony as an attempted theft offense.
A state conviction meets the generic federal definition of an attempted theft offense if it includes the elements of intent to commit a theft offense and an overt act constituting a substantial step towards commission of such an offense. California burglary under section 459 consists of entry into a building, vehicle, or structure with intent to commit theft or any felony. Thus, it is not necessarily an attempted theft offense because it might involve entering a structure to commit some other crime that is a felony.
Prior to the Supreme Court’s decision in Descamps, courts within the Ninth Circuit thus would have examined the record of conviction to determine whether it indicated a plea to entry to commit theft. If so, then the conviction would be an aggravated felony. Descamps, however, held that such an examination of the record (called a “modified categorical analysis”) was possible only where the offense is divisible. Divisibility means that the statute of conviction specifies multiple alternative crimes, at least one of which meets a federal definition and at least one of which does not. Multiple alternative crimes means the statute contains multiple alternative elements of functionally separate crimes, not alternative means of committing a single crime. An element is something a jury must unanimously find beyond a reasonable doubt. On the other hand, a jury need not agree on the means of committing a crime (for example, a jury may not need to agree on the type of weapon used in an assault).
The Ninth Circuit held that “theft or any felony” is not divisible because they are alternative means, not alternative elements. A jury need not agree on whether the defendant entered a structure with intent to commit theft or any other felony to return a conviction for burglary under PC 459. Since the offense is not divisible, a reviewing court cannot turn to the record of conviction to determine if the conviction was for entry with intent to commit theft.
California PC 459 therefore can never meet the definition of an attempted theft offense because it is broader than the federal generic definition and the modified categorical analysis cannot be used to narrow the conviction to meet the definition.
The Ninth Circuit reversed a conviction for illegal reentry after removal because the defendant received ineffective assistance of counsel in the removal proceedings. The counsel had conceded removability for conviction of a drug trafficking aggravated felony where the immigrant had a Missouri conviction for possession of marijuana with intent to deliver. As in Moncrieffe, the conviction (Missouri Revised Statutes § 195.211) encompassed distribution of a small amount of marijuana for no remuneration, which would not be a felony under the federal Controlled Substance Act and thus not an aggravated felony as the state equivalent of a felony conviction under the Controlled Substance Act. Moncrieffe had not been decided at the time of the attorney’s concession, but a circuit split did exist at the time and the Seventh Circuit (in which the removal proceedings occurred) had not ruled on the issue at the time.
The Board of Immigration Appeals applied the Supreme Court’s decisions in Descamps and Moncrieffe to find that the respondent’s felony conviction under section 76-10-508.1 of the Utah Code for discharge of a firearm was not an aggravated felony crime of violence, but was a deportable firearms offense.
Section 76-10-508.1(1) has three subsections and it was not clear which the respondent was convicted of. The first, subsection (a), penalizes one who “discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered by the discharge of the firearm.” This does not require any particular mental state by the person who discharges the firearm, which means under the Utah Code that it may be done with intent, knowledge, or recklessness.
The Supreme Court held in Leocal that the mental state of recklessness does not satisfy the federal definition of a crime of violence, so the Board held that a violation of section 76-10-508.1(1)(a) is not necessarily an aggravated felony crime of violence. Further, the Board held it could not find the respondent was convicted of an aggravated felony under the modified categorical approach. It determined it could not use the modified categorical approach because the mental states for subsection (a) (intentionally, knowingly, or recklessly) are not divisible because they are not elements of the offense that a jury must unanimously agree upon. In other words, a jury returning a guilty verdict could do so where some members of the jury believe the defendant acted intentionally, while others believe he acted recklessly. Since the offense does not necessarily constitute a crime of violence and it is not divisible, no conviction for section 76-10-508.1(1)(a) would be an aggravated felony crime of violence.
The Board nonetheless found that Chairez-Castrejon was convicted of a firearms offense because it rejected his argument on the antique firearm exception. The federal definition of a firearm excludes certain antique firearms, while the respondent argued that Utah law did not. The Board noted that there was no specific exception for antique firearms under Utah law, but also found that the respondent had not shown Utah actually prosecutes offenses involving antique firearms. In Moncrieffe, the Supreme Court held that an alien who invokes this “antique firearm” argument in order to defeat an aggravated felony charge “would have to demonstrate
that the State actually prosecutes the relevant offense in cases involving antique firearms.” The respondent apparently could not show that here (California, on the other hand, does prosecute cases involving antique firearms). The Board therefore found Chairez-Castrejon deportable, although it remanded for consideration of his cancellation of removal claim because it found his conviction was not an aggravated felony.
In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:
Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.
Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015. Until then, attorneys should pursue other strategies to protect their clients.
There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence. First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).
Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.
Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal. Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.