Carachuri-Rosendo v. Holder – Oral Argument – March 31, 2010

Media for Carachuri-Rosendo v. Holder

Audio Transcription for Opinion Announcement – June 14, 2010 in Carachuri-Rosendo v. Holder

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 09-60, Carachuri-Rosendo v. Holder.

Mr. Srinivasan.

Sri Srinivasan:

Thank you, Mr. Chief Justice, and may it please the Court: Long-time lawful permanent resident aliens with two convictions for minor drug possession offenses are subject to removal from the United States, but they are not categorically ineligible to seek discretionary relief from removal from the Attorney General based on their connections and deep family ties to the country.

Categorical ineligibility for discretionary relief arises under the Immigration and Nationality Act when a permanent resident has been, quote, “convicted of an aggravated felony”, close quote, with the relevant category here permanent residents who have been, quote,

“convicted of a felony punishable under the Controlled Substances Act. “

close quote.

Individuals, such as Petitioner, who have been convicted of drug possession, but as to whom there has been no finding of recidivism, have been convicted of a misdemeanor punishable under the Controlled Substances Act rather than a felony.

Ruth Bader Ginsburg:

Mr. Srinivasan, as a threshold question, is there a mootness problem here, because, as I understand it, the Petitioner came back to the country illegally and committed another minor crime?

But his coming back illegally and being turned away again, as I understand the law, means that he cannot get any dispensation as a result of the illegal entry.

So even if we were to hold in your favor now, I take it that he could not — he would not have any hope of getting any cancellation of removal or any other dispensation.

Is that so?

Sri Srinivasan:

That’s not correct, Justice Ginsburg, in our view.

And the government, it’s notable, doesn’t make a mootness argument.

And I think the reason they don’t is that the — in Lopez, this Court understood that the initial removal doesn’t annul the ability of an individual to get cancellation.

And so, as Your Honor correctly observes, the question would be whether the reentry has an effect on the cancellation and the eligibility for cancellation.

And it does not because Petitioner was removed again by reinstatement of the original removal order.

And so, if there’s an argument that the initial removal order wasn’t good because cancellation should have been granted, that also carries through to the reinstatement.

And as a consequence of that procedural context, there is no mootness argument and I think that’s why the government doesn’t make — doesn’t take that position.

So the question before the Court–

Antonin Scalia:

I — I — I’m not sure I understand what you’re saying.

You’re saying that his reentry was not illegal because his removal was illegal?

Is that what you are saying?

Sri Srinivasan:

–No, it’s not that his reentry wasn’t illegal.

It’s that when he was then again removed, that the — the way that that was accomplished was by reinstatement of the original removal order.

Antonin Scalia:

I see.

Sri Srinivasan:

And so, if the original removal order would have been extinguished by a grant of the cancellation order, then that carries forward to the reinstatement of the original removal — removal order as well.

Anthony M. Kennedy:

But — but does–

Sri Srinivasan:

Nothing additional happens because of the reentry.

Anthony M. Kennedy:

–But does it make the — the second unlawful entry now lawful?

Sri Srinivasan:

It doesn’t make the–

Anthony M. Kennedy:

I thought — I thought it’s a separate offense to enter, to reenter improperly, and — and that stays no matter, isn’t that correct, regardless of the correctness of the prior removal order?

Sri Srinivasan:

–It does, Justice Kennedy–

Anthony M. Kennedy:

Or am I wrong?

Sri Srinivasan:

–but I think — I think the way that gets taken into account is it would be one of the discretionary considerations that the Attorney General could take into account in determining whether to grant discretionary relief in the same way that the original conviction for drug possession could be taken into account.

Our position–

Ruth Bader Ginsburg:

I — I — I think also in the picture is that he never contested removability.

The only thing was the grace: Would — would he qualify for discretionary relief by the Attorney General?

So the — the removal order itself, I take it, would stand.

Sri Srinivasan:

–The removal order would stand, but if cancellation were granted, then he couldn’t be removed pursuant to that removal order, because the — the effect of granting cancellation would be that he’s no longer removable.

He gets favorable discretionary relief that enables him to stay in the country.

And I think the predicate of Your Honor’s question is correct, that we don’t contest removability.

He was removable because of his drug possession — drug possession conviction.

The question is whether he retains eligibility to seek a favorable exercise of relief from the Attorney General based on affirmative equities in his — in his favor, such as his deep family ties to the country, the presence of United States citizen children here, his lack of connections to the country to which he would be removed, his employment history, and considerations of that variety.

And the question before the Court is whether he and other individuals who are similarly situated should have an opportunity to make that case to the Attorney General.

He is removable.

The question is whether the Attorney General is in a — is in a position to grant him a favorable exercise of discretion.

And we think the Attorney General is, because in order to be categorically ineligible for discretionary relief from removal, a permanent resident alien has to have been convicted of a felony punishable under the Controlled Substances Act.

And when you’ve been convicted of drug possession and there has been no finding of recidivism, you have been convicted of a misdemeanor punishable under the Controlled Substances Act.

Sonia Sotomayor:

What elements would a State conviction have to contain to qualify as a finding of recidivism in your view?

Sri Srinivasan:

What elements?

Sonia Sotomayor:

Yes.

What would have had to have been determined in a State conviction for you to recognize, under your argument, that it would qualify as a felony under the Controlled Substances Act?

Sri Srinivasan:

Justice Sotomayor, at the very least what would have had to have happened is that he would have had to have been found to be a recidivist under a State provision that attaches sentencing consequences to being found to have been a recidivist.

And so, what you need is an analogous State offense to the Federal offense of recidivist possession.

Sonia Sotomayor:

Do you know of any State law that is analogous to the Federal law, precisely analogous?

Sri Srinivasan:

Well, analogous enough to count, in the sense that what you need under the Federal law is a finding of recidivism at least.

That’s our principal submission.

Sonia Sotomayor:

That’s what I’m trying to — to get to.

What are the elements of that finding?

What exactly — because different labels are attached to different crimes that qualify you for recidivism under some State statutes, et cetera.

Sonia Sotomayor:

I’m trying to get you to articulate what finding of recidivism counts, what are the underlying–

Sri Srinivasan:

It’s a determination by the court that–

Sonia Sotomayor:

–Which court now, the State court?

Sri Srinivasan:

–By the State convicting court.

In the case of a State conviction, it would be a determination by the State convicting court that the person in fact has a prior conviction.

And then as a consequence under the State scheme, a sentencing consequence would attach.

Sonia Sotomayor:

So are you arguing that a State court has to make a finding of a valid prior conviction; is that it?

Sri Srinivasan:

Yes, in — in the context of a State conviction.

It–

Antonin Scalia:

But it doesn’t have to be a State felony?

Sri Srinivasan:

–It doesn’t have to be a State felony, no.

Antonin Scalia:

The felony has to be a Federal felony, right?

Sri Srinivasan:

That’s correct.

And that’s the work done by the words

“punishable under the Controlled Substances Act. “

Antonin Scalia:

Punishable as a felony under the Federal Act.

Sri Srinivasan:

Right.

Antonin Scalia:

But this was punishable as a felony because it was his second drug offense.

He was a recidivist.

And although it was only a misdemeanor under State law, under the Controlled Substances Act he could be prosecuted for a felony, for a Federal felony.

I — I — I don’t know why that doesn’t fit the statute.

Sri Srinivasan:

But — but, Justice Scalia, he has to have been convicted of the felony.

That’s the critical distinction.

He may have committed a felony–

Antonin Scalia:

He can’t be convicted of a Federal felony in a State court.

He has to be convicted of a crime–

Sri Srinivasan:

–He has to have been convicted of a crime–

Antonin Scalia:

–which may be a misdemeanor, which would subject him to a felony conviction in Federal court under the Controlled Substances Act.

And I think that’s — that’s what this is.

He’s convicted of a drug offense, and if — if he were prosecuted in Federal court, he would — he was punishable as a felon–

Sri Srinivasan:

–He was–

Antonin Scalia:

–in Federal court under the — under the Controlled Substances Act.

Sri Srinivasan:

–He was not punishable as a felon in Federal court for two reasons: First, he was convicted of drug possession.

A person in Federal court who is convicted of drug possession is a misdemeanant, not a felon, unless and until there’s a finding that he’s a recidivist.

You have to have the finding of recidivist in order for a felony sentence even to conceivably attach to an individual, and you just don’t have that in the context of this case, where all you have is a conviction of drug possession alone.

A felony sentence doesn’t even come into the picture unless there’s a finding of recidivism.

Samuel A. Alito, Jr.:

Isn’t the–

Sri Srinivasan:

That didn’t happen in the State court.

Samuel A. Alito, Jr.:

–Isn’t the crux of your argument that for present purposes the term “conviction” must include a determination of recidivism?

Sri Srinivasan:

For present purposes, that’s correct.

And Justice Alito, I think it’s important to understand — and this goes to the second response to your question, Justice Scalia — that the statute, the Immigration and Nationality Act, defines “conviction” in a particular way.

It defines “conviction” as

“a formal judgment of guilt. “

“entered by a court. “

As Your Honor’s opinion for the Court in Deal v. United States understood, statutes could define convictions in one of two ways: It could define a conviction as a finding of guilty, or it could define a conviction as the formal judgment based on that finding.

Samuel A. Alito, Jr.:

Well, what would you say–

Sri Srinivasan:

Here we have the latter.

Samuel A. Alito, Jr.:

–What do you say about 21 U.S.C. section 851, the Federal recidivism provision, which says:

“No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions. “

So under that statute, the conviction does not include the recidivism determination.

Sri Srinivasan:

Under–

Samuel A. Alito, Jr.:

Isn’t that right?

Sri Srinivasan:

–Under that statute — different statutes conceive of it different ways, but the applicable definition of “conviction” here, because we’re talking about an immigration consequence, is the definition of “conviction” under the Immigration and Nationality Act.

And that definition is set forth at page 2a of the appendix to our brief, the blue brief, the opening brief.

And it’s 8 U.S.C. 1101(a)(48)(A), and it says that:

“The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court. “

And so, here you have “a formal judgment of guilt” as the operative definition of a conviction, and that formal judgment of guilt includes both the adjudication of guilt and the sentence.

And so the important point to bear in mind is that at the time that the conviction, as defined by the Immigration and Nationality Act, is entered, we know whether the person has been found to have been a recidivist.

At that point, the adjudication of guilt has happened, the sentence has been imposed, and we know whether a finding of recidivism has been made.

In the absence of such a finding, the maximum sentence they could attach under Federal law, Justice Scalia, is a misdemeanor sentence of 1 year of imprisonment.

Sri Srinivasan:

A felony sentence is not on the table, and if the maximum sentence to which a person is subject is a misdemeanor sentence, the person has been — has been convicted of a misdemeanor; they haven’t been convicted of a felony.

And that–

Antonin Scalia:

Let’s assume we’re not talking about immigration consequences.

Let’s — let’s assume we’re talking about an American citizen who has committed a — a misdemeanor drug offense.

When he is brought up under the Controlled Substances Act, even though he wasn’t found to have been a recidivist by the State conviction, couldn’t he be prosecuted under the Controlled Substances Act for a felony because in fact he is a recidivist?

Sri Srinivasan:

–Oh, sure.

But — but I think — I think that confuses two things.

In that situation, the second proceeding is in Federal court–

Antonin Scalia:

Yes.

Sri Srinivasan:

–and in that Federal court proceeding, you can take account of the prior State court conviction, but in that second proceeding, the fact that he was convicted previously in State court would have to have been found by the Federal court.

That’s the relevant finding of recidivism, and in the absence of that finding of recidivism, the Federal defendant wouldn’t be subject to a felony sentence.

He would only be subject to a misdemeanor sentence.

Antonin Scalia:

No, but — the crucial word here is “punishable” as a felony under the Controlled Substances Act.

And the fact is if indeed he’s a recidivist, he could be punished for the — for the felony.

Now, you’re quite correct that the Federal court would have to find the recidivism, but — but still he would be punishable as a recidivist.

Sri Srinivasan:

He has to be convicted of a felony, Justice Scalia, and in the absence of a finding of recidivism, he can’t have been convicted of the felony.

He may be punishable as a felon in the abstract ex ante.

So I don’t take issue with the proposition that a person commits recidivist possession when they commit possession and they have a prior conviction.

In that abstract sense, the person has committed recidivist possession, and if they were charged and found to have been a recidivist, they would be convicted of recidivist possession.

But in the absence of that finding, they haven’t been convicted of recidivist possession, and–

John G. Roberts, Jr.:

Under the applicable State law, what’s required before the recidivist sentence is triggered?

Is it a formal finding of recidivism by the — by a jury?

Sri Srinivasan:

–It doesn’t have to be by a jury, and I think it would depend on the State, Mr. Chief Justice.

It doesn’t necessarily have to be by a jury, because I think several States have the recidivism component of the offense as a finding that could be made by the court, but the–

Antonin Scalia:

And we’ve held that’s okay–

Sri Srinivasan:

–And you’ve held–

Antonin Scalia:

–that you don’t need a jury.

Sri Srinivasan:

–that’s okay as a constitutional matter.

But–

Anthony M. Kennedy:

But we have five States, isn’t it, that have no recidivist provisions?

Sri Srinivasan:

–There are–

Anthony M. Kennedy:

Is the thrust of your argument or the logical consequence of your argument, if you have one of those States with no recidivist provisions and you have ten separate possession convictions, they’re still not a recidivist under the Federal rules?

Sri Srinivasan:

–It is in those five States, Justice Kennedy, but I don’t think that should give the Court a great deal of pause, for the following two reasons.

Anthony M. Kennedy:

No, no.

In my hypothetical, what would happen if — if there was a deportation proceeding?

Sri Srinivasan:

What would happen is this: The person would not be categorically ineligible for discretionary relief.

Anthony M. Kennedy:

Because there is no recidivist finding.

Sri Srinivasan:

They wouldn’t have been convicted of recidivist possession.

But it’s important to note, Justice Kennedy, that doesn’t mean that those prior convictions don’t enter into the picture at all.

They do, because, in the exercise of discretion by the Attorney General, the Attorney General can take into account any prior convictions, including those that don’t render somebody categorically ineligible.

All we’re talking about here is whether the person has a chance to make a discretionary case.

They do have that chance in Your Honor’s hypothetical, but those convictions would be taken into account.

Now, I want to point out, though, that there’s another reason that I think the fact that in that hypothetical it wouldn’t render the defendant categorically ineligible for discretionary relief shouldn’t give the Court a great deal of pause.

And that’s because the relevant category of aggravated felony that we’re talking about here is illicit trafficking in a controlled substance.

That’s the category that’s outlined by the statute.

Now, with respect to that category, every State has trafficking laws.

Every State punishes drug trafficking.

So every State’s offenses do count for purposes of this category of aggravated felony.

When we’re — that’s the iceberg.

The tip of the iceberg is recidivist possession, which is a subset of illicit trafficking in a controlled substance.

Now, with respect to that tip, Federal convictions for recidivist possession still do count, so we have those.

With respect to the State–

John G. Roberts, Jr.:

No, but the State prosecutors often prosecute when they have a recidivist provision under that, rather than the much more difficult illicit trafficking crime.

I mean, if you’re going to go to jail for a certain amount of years for a recidivist possession, that’s easier to show than illicit trafficking.

Sri Srinivasan:

–Well, sure, but if a State — two responses, Mr. Chief Justice: If a State prosecutor does prosecute under an available recidivist possession offense, then that would count because the State prosecutor would have brought the charge, the finding by hypothesis would have been made.

That would be felony recidivist possession under Federal law, and there would be categorical ineligibility.

Now, I think what may be — what may be sort of lurking beneath Your Honor’s question is the recognition that the Federal consequences of a State conviction are going to turn on State prosecutorial decisions.

That’s true.

But that’s a fixed feature of any scheme in which Federal immigration consequences turns on what happens in State court, and this Court’s decision in Lopez recognizes that.

For example, States — several States don’t have a Federal offense of possession with intent to distribute drugs.

Sri Srinivasan:

That’s a Federal offense.

What States, some States, have instead is possession with a degree of penalty attached to the amount of drugs possessed.

They don’t have the separate offense of possession with intent to distribute.

Now, the fact that certain States don’t have that offense doesn’t mean that an individual who is convicted of state possession with no finding of an intent to distribute would be categorically ineligible for discretionary relief from removal, because what Congress understood was that some States will have qualifying offenses and some States won’t.

In those States that do, where the State has the offense and where the State prosecutor makes the decision to charge under that offense will — at that point the State conviction will count as a Federal felony.

It will be a felony punishable under the Controlled Substances Act, and the person at that point would be categorically ineligible for discretionary relief.

Stephen G. Breyer:

I don’t know.

It seems to me you go further than you need to and, moreover, imagine a State offense that just says possession of marijuana, zero to 5 years.

Now, our problem is, reading those words, is that or is that not analogous to a Federal — a Federal — what a Federal law would make a felony?

And suppose you discovered as a matter of fact that all the people who did have a prior conviction got more than a year.

In simple possession, they got less than a year, which you’d have to do research to find out.

Sri Srinivasan:

Right.

Stephen G. Breyer:

Well, if those were the facts, I would say it is analogous to the Federal felony where this person was sentenced to more than a year.

Sri Srinivasan:

I don’t think it would be, Justice Breyer, because–

Stephen G. Breyer:

Well, we could argue that one–

Sri Srinivasan:

–Sure.

Stephen G. Breyer:

–but I don’t see where–

that there’s a line, because it seems to me the rule is set forth — we said in the last sentence here of — what’s the case?

You know–

Sri Srinivasan:

Lopez?

Stephen G. Breyer:

–What?

Sri Srinivasan:

Is it Lopez?

Is that–

Stephen G. Breyer:

Yes, Lopez.

It says:

“A state offense constitutes a felony punishable under the Controlled Substances Act only if it proscribes conduct. “

So we’re not looking at what happened in reality.

We’re reading some words from a State statute.

Sri Srinivasan:

–Correct.

Stephen G. Breyer:

That’s what proscribes conduct punishable as a felony under that Federal law.

Stephen G. Breyer:

This would be normal.

We get some words in the State statute, and you have to decide are the — those words cover some events in the world.

And you look at those words, what — the events they cover and discover, did they or are they analogous or not analogous to what is a felony under Federal law?

Sometimes that’s easy, sometimes it’s not.

You have a case, I think, that’s easy.

But I can imagine the case you’re talking about, not easy.

Sri Srinivasan:

Well, I–

Stephen G. Breyer:

So you say, what do you do?

I see no rule there.

I see no rule absolute how you treat it, so I probably would treat it by trying to look at what really happens under this statute in the world.

Sri Srinivasan:

–Well — well, with respect, Justice Breyer, I don’t think that’s the inquiry that’s called for even by this sentence.

I think what this sentence called for is an inquiry into what the State offense captures in its offense elements to make up a conviction.

Stephen G. Breyer:

Why — where does it say “offense element”?

Sri Srinivasan:

Because I think that’s the — the necessary inquiry that’s–

Stephen G. Breyer:

Where does it say that?

Sri Srinivasan:

–It’s — it’s necessarily what’s at issue.

It–

Stephen G. Breyer:

Why?

Sri Srinivasan:

–This sentence doesn’t necessarily — it asks whether–

Stephen G. Breyer:

Well, where in the statute–

Sri Srinivasan:

–It asks whether it proscribes conduct.

Stephen G. Breyer:

–does it say “offense elements”?

Sri Srinivasan:

It asks whether — the sentence asks whether the State offense proscribes conduct.

Stephen G. Breyer:

Yes.

Sri Srinivasan:

And I read “proscribes conduct” to mean there would be offense elements of proscribed conduct.

Stephen G. Breyer:

Well, you say that it says “elements”.

I don’t see any of our cases that say “elements”.

And I — and I think that — that what we could do is look to the conduct that’s likely to be at issue under these State words, and if in fact it’s regular that the State does punish people for more than a year when in fact they do possess for the third time, at least there would be a good argument–

Sri Srinivasan:

Justice Breyer–

Stephen G. Breyer:

–that that counts.

Stephen G. Breyer:

You want to argue it doesn’t count, okay.

I don’t know why you do.

Sri Srinivasan:

–No–

Stephen G. Breyer:

But, I mean, I’m interested in why you do, since that isn’t your case.

Sri Srinivasan:

–Yes, I don’t want to take issue — I don’t want to argue against myself, certainly, but I would just make the following point: That if I’m understanding what Your Honor is saying correctly, and I’m not sure that I am, but if I’m understanding what you’re saying correctly, I would just point out to the Court that the Court dealt with that sort of situation in the four corners of Lopez itself when it talked about — talks about what happens with possession with intent to distribute.

Some States don’t have possession with intent to distribute as an offense; they only have possession.

Now, I — as I understand what Your Honor is suggesting, you could look at all the — the ken of individuals who have been convicted of State possession and you could ask as a matter of fact, do they in fact possess with intent to distribute?

And then you could reach some consequence on that basis.

Stephen G. Breyer:

I know, but the reason I ask my question is it seems to me your approach, which I think is consistent with Lopez and Nijhawan absolutely–

Sri Srinivasan:

Okay.

Stephen G. Breyer:

–does raise the question you are talking about.

So I want to know: Why are you talking about it?

Because I might be missing something, because I don’t think — if I’m right, your case doesn’t raise these issues.

Or am I wrong about that?

Sri Srinivasan:

I — I have to confess, I’m not exactly sure what Your Honor is asking.

So–

Stephen G. Breyer:

Okay.

Well, skip the question.

[Laughter]

Sri Srinivasan:

–I think–

Samuel A. Alito, Jr.:

Could I ask you this question–

Sonia Sotomayor:

Could I–

Samuel A. Alito, Jr.:

–If — suppose a State makes simple possession a felony.

Now, that doesn’t make it a felony for these purposes, right?

Sri Srinivasan:

–Right.

Samuel A. Alito, Jr.:

All right.

But in sentencing the — the defendant in State court for this felony, the — the defendant concedes that he had a prior conviction, and the judge finds that and takes that into account in imposing the sentence.

What would happen there?

Sri Srinivasan:

It wouldn’t constitute the analogy to the Federal offense of recidivist possession, Justice — Justice Alito, because that could also happen in the Federal system.

In the Federal system, you could have an individual who is convicted of possession, and then the fact that they had a prior conviction could have some role in the — for example, in the presentencing report.

Samuel A. Alito, Jr.:

But what’s missing there?

Sri Srinivasan:

You don’t have–

Samuel A. Alito, Jr.:

What is the difference between that and — and a situation where, just because of the vagary of State law, recidivism is something that has to be proven in order to bring the offense into the — into the felony level?

Sri Srinivasan:

–Two things are missing, Justice Alito: First, you don’t have a formal judgment of guilt entered by the court, which is what a conviction requires.

And the consequence of not having a formal judgment of guilt is that the statutory maximum penalty isn’t raised.

And I think what’s relevant here is that when you have a finding of — a formal judgment of guilt of recidivism in the Federal system, which happens when the prosecutor brings a charge and the court makes the finding at sentencing, the maximum sentence that could be imposed against the defendant is raised from a misdemeanor sentence to a felony sentence.

But that doesn’t happen in a situation in which the fact of a prior conviction is taken into account, for example, under a presentencing report.

It doesn’t raise the statutory maximum, and there’s no formal judgment entered based on that determination by the court.

And so that’s the distinction.

And I think the relevant way to look at it is you take account of what would happen in the Federal system and you ask: Would it have the consequence in the Federal system of rendering somebody guilty of the felony of recidivist possession as opposed to the misdemeanor of simple possession?

And it wouldn’t in the Federal system, and by parity of reasoning it also would not have that consequence in the State system.

Samuel A. Alito, Jr.:

That seems to be a totally formalistic distinction that’s based on the vagaries of State law.

What — what is the difference between someone who is found by a court under a State recidivism provision to have — to be eligible for an increased punishment as a result of that finding and someone who is found by a court in the context of sentencing, discretionary sentencing, to have a felony possession, to have a prior — a prior conviction and receives an increased sentence as a result of that?

Sri Srinivasan:

Well–

Samuel A. Alito, Jr.:

What is the — is there any functional difference between those two situations?

Sri Srinivasan:

–Well, I think there is, Justice Alito, and let me just say as a preliminary matter it’s not based on the vagaries of State law, because it’s — I’m applying the same analysis to State convictions as I do to — to Federal convictions.

But one way to look at it is to ask, suppose that a State or even Federal law made it salient for sentencing purposes whether somebody intended to distribute when they possessed.

They were convicted of drug possession.

There is an offense of possession with intent to distribute, but they’re not charged with that offense; they’re charged with drug possession.

And then sentencing somehow makes it salient, not for purposes of raising the statutory maximum, but just for purposes of sentencing within the range whether the person intended to distribute.

I don’t think anybody would say that the individual was convicted of the felony of possession with intent to distribute because the — the judge in sentencing took into account an intent to distribute in some way under a sentencing scheme.

Samuel A. Alito, Jr.:

But does it matter in that situation that that’s an element, that has to be an element of the offense?

Sri Srinivasan:

It has to be a sentencing factor that raises the statutory maximum.

And the reason that matters is that under this statute, the person has to have been convicted of a felony, and the only way they’re convicted of a felony is the offense of which they are convicted can lead to a felony sentence.

And the sentencing factor in this case of recidivism is necessary in order to give rise to a Federal sentence.

In the absence of that finding, the person has been convicted of a misdemeanor, because the maximum sentence they can receive is a misdemeanor sentence of 1 year of imprisonment.

If the Court has no further questions, I’d like to reserve the balance of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, Mr. Srinivasan.

Ms. Saharsky.

Nicole A. Saharsky:

Mr. Chief Justice, and may it please the Court: Congress’s judgment here was that all aliens who engage in the same serious conduct would be treated the same for immigration purposes.

Nicole A. Saharsky:

And Petitioner doesn’t dispute that he has two convictions for drug possession, and he also doesn’t dispute that had that second case been prosecuted in Federal court, he could have been punished as a felon.

What he is saying is: I don’t want my aggravated felony to count because of a difference in State law, because of a difference in the State prosecutor’s decision.

But what this Court held in Lopez is that Congress’s judgment controls about the seriousness of the offense.

Stephen G. Breyer:

The exact words of Lopez, which I think are important:

“We hold that a State offense constitutes a felony punishable under Controlled Substance. “

“only if it proscribes conduct punishable as a felony. “

Okay?

Nicole A. Saharsky:

Yes.

Stephen G. Breyer:

Under Federal law.

Now, there’s an ambiguity when you use a word like “offense” or “crime”.

Sometimes you mean what this guy did, and sometimes you’re referring to a statute.

It’s statutes that proscribe, not what this guy did.

So we’re talking about the statute.

So what it tells us to do — and we said the same thing in Nijhawan, and I have written in other opinions the same thing — you go read the State statute.

Forget what he’s done.

Read the statute and see if the statute proscribes conduct that would amount to a felony under Federal law.

So let us read the statute.

We turn to the statute of conviction.

What it says is it is a class A misdemeanor for which you are punishable of less than a year if you possess less than 28 grams or whatever.

It says nothing about recidivism.

There is no increased punishment for recidivism.

So all we did was read the statute.

The statute does not proscribe conduct that would be a felony under Federal law; it proscribes conduct that would be a misdemeanor.

QED.

This person has not been punished in Texas under a statute that proscribes conduct that would be a felony under Federal law.

End of case.

Now, what is the matter with what I just said?

Nicole A. Saharsky:

Because this is a two-step inquiry and you only did step one.

Stephen G. Breyer:

What do you mean, “a two-step inquiry”?

Nicole A. Saharsky:

A two-step inquiry.

Nicole A. Saharsky:

There are two questions.

The first is: Does the State offense correspond to an offense under the CSA?

Does it correspond to a Federal offense, and that’s based on the elements, and the Court said that that was based on the elements on page 51 of Nijhawan–

Stephen G. Breyer:

Okay.

Nicole A. Saharsky:

–But there’s a second question, which is: If it corresponds to a Federal offense, how would that Federal offense be punishable?

The CSA language determines that we need to look at that second inquiry.

Stephen G. Breyer:

No–

Nicole A. Saharsky:

If in addition to that–

Stephen G. Breyer:

–Where does it say that?

Where does it say that in the language?

You are looking to the conduct that the statute proscribes, not what he engaged in.

Suppose the State statute says it is a misdemeanor to steal a chicken, okay?

Nicole A. Saharsky:

–Yes.

Stephen G. Breyer:

It is a misdemeanor.

He is convicted of stealing a chicken.

It turns out that the way he stole the chicken was to burn down the farmhouse.

That is a felony.

Now, what we have written is: Forget the second.

I’ve written it in five opinions or four or three, most of which had a majority.

[Laughter]

It is called — it is written right here in this case.

It is written in Nijhawan.

What is it that tells us to go beyond the conduct that the State statute proscribes, not some other thing?

Nicole A. Saharsky:

The conduct is what the State statute proscribes, but there’s an additional question of how it is punishable–

Stephen G. Breyer:

Where is the additional question?

Read me the words of the statute that — there might be.

I’m not — I’m being argumentative, but I want to know what words in the statute say there — or what words in a case say go look to some other thing beyond what the State statute proscribes?

Nicole A. Saharsky:

–Okay.

This is on the gray brief, page 10a, and this is the definition that is incorporated into the aggravated felony definition in the INA, and it says that it encompasses, quote,

“any felony punishable under the Controlled Substances Act. “

Nicole A. Saharsky:

And in Lopez the Court interpreted that language to mean an offense that is punishable as a felony under the Controlled Substances Act.

Stephen G. Breyer:

Yes.

What offense?

The offense proscribed–

Nicole A. Saharsky:

Right.

Stephen G. Breyer:

–by State law.

That’s why I asked you: Where does the State statute proscribe something that has to do with recidivism?

I’ve read that State statute three or four times.

Nicole A. Saharsky:

Recidivism isn’t part of the offense.

It is a sentencing factor.

Justice Scalia mentioned that.

That’s something this Court has recognized on many occasions, that recidivism is something that can be established by the sentencing court.

You are right: The offense is drug possession.

He was convicted of drug possession in State court.

That’s what he would have been convicted of in Federal court.

But the fact that he was convicted of drug possession doesn’t answer the separate question of how that offense is punishable.

If it were his first offense, it would be punishable as a misdemeanor.

If it was his second offense, it would be punishable as a felony.

And we think that that — that approach is dictated by two different opinions, the first of which is Lopez, which says we look for a correspondence between the State offense and the Federal offense, but then we also have this question of how the offense is punishable in Federal court, and this punishability question is extremely relevant.

The entire basis for the Court’s — the entire basis for the Court’s opinion was that Congress’s judgment about the seriousness of the offense controls.

It is not State by State judgment.

Ruth Bader Ginsburg:

Ms. Saharsky, do we take into account at all — I mean, in Lopez as I understand it, the petitioner prevailed because it would not have been a felony under the Federal law.

Is that right?

Nicole A. Saharsky:

Yes.

Ruth Bader Ginsburg:

Here we’re talking about two crimes.

One is a small amount of marijuana.

He gets 20 days in jail.

The other is a pill that I never heard of, a Xan-something, and then he gets, what, 10 days in jail for that.

If you could just present this scenario to an intelligent person who didn’t go to law school, as you’re going to not only remove him from this country, but say never, ever darken our doors again because of one marijuana cigarette and one Xan-something pill — it — it just seems to me that if there’s a way of reading the statute that would not lead to that absurd result, you would want to read the statute.

If you are forced to read it because there’s no other way — but maybe there is another way.

Nicole A. Saharsky:

We don’t think that there is another way, because the Court said in Lopez in interpreting the statutory language that the State’s judgment about how an offense is punished does not control.

What controls is Congress’s judgment, and Congress has taken a hard line over the past 20 years on criminal aliens, particularly recidivist criminal aliens–

Sonia Sotomayor:

But it has–

Anthony M. Kennedy:

Can you tell me what–

Nicole A. Saharsky:

–particularly–

Anthony M. Kennedy:

–What would happen if there — forget the State.

There are two Federal offenses.

The first Federal offense is drug possession; the second Federal offense, drug possession, but the prosecutor is not quite sure that he has a strong case or she has a strong case for recidivism because of the first conviction.

So the — on the second go-around, the conviction is without the added finding of recidivism.

What does the INA do with that case?

Nicole A. Saharsky:

–That would count as an aggravated felony, as punishable as a felony, because the aggravated felony language incorporates the word “punishable”, how it could be treated under Federal law, not how it actually was punished.

And that’s because Congress made a — a judgment in the immigration code that what it wanted to do was to take all individuals who had been engaged in the same conduct–

Sonia Sotomayor:

–So you’re telling us–

Nicole A. Saharsky:

–repeated drug possession, and treat them the same.

Anthony M. Kennedy:

What — what would–

Sonia Sotomayor:

–So something’s not a Federal felony and it’s now subject — because he hasn’t been convicted in Federal court of recidivism — now he’s being punished under the INA or removed under the INA for what is not a felony under Federal law?

Nicole A. Saharsky:

Because it’s punishable — yes, because it’s punishable as a felony under Federal law, because Congress made a judgment that those two drug possession offenses, the fact of recidivism makes it serious enough that it could be–

Sonia Sotomayor:

Could I just ask you one–

Anthony M. Kennedy:

–If — if I could just finish on this one — this one.

In this hypothetical that we’re discussing, the — the two Federal offenses but no finding of recidivism, does the INA have the authority to question the first conviction because it was uncounseled or in effect collaterally question the first conviction?

Nicole A. Saharsky:

–It — it’s well established that those kind of challenges can’t be brought in immigration court.

What needs to happen is they need to be brought in the State court of conviction through the procedures that are–

Anthony M. Kennedy:

No, what — our hypothetical here is Federal.

Nicole A. Saharsky:

–Oh, I’m sorry.

Anthony M. Kennedy:

Right.

Nicole A. Saharsky:

In that case if it — the individual would need to seek relief in Federal court in terms of getting his conviction–

Ruth Bader Ginsburg:

I thought if it’s in the Federal court, and the — they are going to use it as a recidivist offense, (a) the defendant is notified of that, and (b) is given an opportunity to say there’s something infirm about that first conviction.

That’s totally absent from this picture.

You say, oh, well, that’s just a matter of procedure, so he doesn’t have to get that anyplace.

I think that Congress is requiring that.

Ruth Bader Ginsburg:

It’s certainly an element of fundamental due process fairness, notice and opportunity to say, no, the first conviction shouldn’t count.

Nicole A. Saharsky:

–With respect, we disagree because Congress made different judgments in the immigration context and in the criminal context.

Immigration is very different from criminal proceedings.

This Court has said that on numerous occasions the rights in terms of due process and counsel and the like are very different.

And in immigration, Congress made a categorical judgment that individuals who have been convicted of conduct should all be treated the same and that they all should be removed from the United States and should be — not be able to get discretionary relief.

In the criminal sentencing context, which you are talking about, section — the section 851 procedures, Congress made a judgment that those procedures which have criminal consequences and already are individualized, that there would be this notice provision.

But that provision Congress did not apply anywhere in the immigration laws.

And if you look–

Stephen G. Breyer:

You go ahead.

Nicole A. Saharsky:

–I was just going to say, if you look all through the aggravated felony provisions — they are in our brief; there are 21 of them — for none of those provisions was Congress concerned about notice or the like.

It said the individual has engaged in this conduct that we think is serious.

Ruth Bader Ginsburg:

But my point is that if it all happened in the Federal court, if these two possession offenses all happened in the Federal court, at the time of the second one the — the defendant would have gotten the notice and the opportunity to knock it out.

I’m not talking about immigration, but just — and he doesn’t have that opportunity the way you treat it.

He doesn’t — didn’t get that in the State court because nobody thought that this was a recidivist offense in the State court.

Nicole A. Saharsky:

That’s right.

And that’s because Congress made the decision to have those types of notice procedures in criminal proceedings, but they are not applicable by their terms anywhere in the immigration laws.

And just to make sure that I understand the hypotheticals that you and Justice Kennedy have been talking about, if there is a Federal prosecution and the person has sought to challenge the validity of his conviction and it has been proven to be invalid, then in that case, yes, there would be a question whether that conviction could be used in the immigration proceedings.

There is an entire body of law that when a conviction has been vacated, it doesn’t count as a conviction under the immigration proceedings.

So the answer is if it is a person in State court and they think that there’s a problem with their underlying conviction, they need to go to State court or use whatever procedures are available for challenging that.

But, again, the Court has said on numerous occasions prior convictions are presumed valid.

We do not — we do not assume–

Ruth Bader Ginsburg:

Do we know practically, both on the State side and on the Federal side, do prosecutors presented with a simple possession case, do they — do we ever see in real life this combination that somebody’s going to be convicted as a recidivist when it’s one marijuana cigarette on one time and one pill on another?

Do prosecutors, Federal or State, do that?

Nicole A. Saharsky:

–I — I can’t speak to State prosecutors.

I know there are circumstances in which Federal prosecutors do it, although, quite honestly, most of the Federal drug prosecutions regard the more serious drug crimes.

The persons that come to our attention usually can be charged with at least possession with intent to distribute or drug trafficking or something like that.

And when we do charge them with possession, it’s usually because they pleaded down and we’ve agreed not to give them an enhanced sentence.

But the judgment here is the one that Congress made about whether two drug possessions is serious, serious enough to qualify as a felony.

And Congress–

Stephen G. Breyer:

Can I ask you a related question, which will show what I’m trying — another thing that’s worrying me.

Stephen G. Breyer:

Suppose we’re in the Armed Career Criminal Act.

Now, I have — this is my hypothetical.

You’ve heard of cat burglars.

Well, this gentleman is called the pussycat burglar, and the reason is he’s never harmed a soul.

He only carries soft pillows as weapons.

If he sees a child, he gives them ice cream.

[Laughter]

It is absolutely established that this person in breaking into that house at night only wanted to steal a pop gun, and he is the least likely to cause harm in the world.

Question: He is convicted of burglary.

Is that a crime of violence?

Answer?

Nicole A. Saharsky:

–Well, to the extent that the burglary definition depends on the Court’s modified categorical approach, you just look to see what he had been convicted of and not the individual–

Stephen G. Breyer:

Correct.

Nicole A. Saharsky:

–circumstances of the case.

Stephen G. Breyer:

The answer is of course, because we are not looking to whether he is the pussycat burglar or the cat burglar.

We are to look to the statute of conviction and see what it is that that behavior forbids — the statute forbids.

Lewis, Nijhawan say — do precisely the same thing with this part of that long list.

Indeed, Nijhawan lists this provision as an example of what you would do the same thing for.

Now I’m back to my first question.

Let’s do it.

Read the Texas statute.

And where in that Texas statute does it say a word about recidivism or punish that conduct?

Now, if I adopt your position, am I not, not simply overturning Lewis and Nijhawan, but getting a very mixed up area of the law which we have tried to straighten out — Taylor, ACCA — once again totally mixed up.

That’s my concern.

Nicole A. Saharsky:

With respect, I think that our position is entirely consistent and, in fact, follows from Lopez and Nijhawan and is consistent with the Court’s modified categorical approach.

So, let me just talk about Lopez and Nijhawan, because I want to make sure there’s not any confusion about that.

Lopez said that we have a question here about whether the State offense — and a State offense is made up of here drug possession; recidivism isn’t something that you’re convicted of, it’s a sentencing factor.

You look at the State offense and you see does it correspond to a Federal offense?

Here it does.

There is State drug possession; there is Federal drug possession.

Nicole A. Saharsky:

And then you ask another question.

And this Court said in Lopez that that’s an important question because we care about what Congress thought, which is how is this offense punishable under Federal law.

This is a two-part inquiry where the first part, the offense elements, does need to be established in State court, and the second part, which goes to how it is punishable, does not need to be established in State court.

And that’s exactly what the Court recognized in its opinion under Nijhawan–

Sonia Sotomayor:

–Under the Federal–

Nicole A. Saharsky:

–albeit in a second–

Sonia Sotomayor:

–Under the Federal statute, it’s only punishable on — for recidivism purposes if the prior conviction was valid, because, as Justice Ginsburg pointed out, the statute permits a defendant to object.

Who has the burden of proof of proving validity is irrelevant.

It’s not punishable as recidivism unless the prior conviction was valid, constitutionally valid.

So why isn’t that same standard or proof thereof required either in the State conviction under your — under any theory, or by the IJ?

The IJ fails to make that finding, how has he and on what basis has he ruled that there was a valid prior conviction?

Nicole A. Saharsky:

–What makes an offense punishable as a felony under the Federal Controlled Substances Act is contained in section 844, which defines the substantive punishments available.

It says that drug possession is punishable as a felony in certain circumstances.

And this Court in Lopez, particularly in footnote 6, recognized that repeat drug possession qualifies as punishable as a felony and under the CSA and–

Sonia Sotomayor:

But only under a process that requires notice–

Nicole A. Saharsky:

–Well, this is what is interesting.

Sonia Sotomayor:

–And–

Nicole A. Saharsky:

I’m sorry.

What’s interesting is the Court cited for this provision section 844(a), which defines the substantive penalties available.

It didn’t cite — no one thought was relevant section 851, which defines procedures that happen after a conviction to impose a certain punishment.

So, what we’re talking about are these procedures that are necessary.

And it’s not a finding of a valid conviction.

It’s — it’s a long set of procedures.

There doesn’t necessarily need to be a finding of a valid conviction if the defendant doesn’t object at all.

There’s burden shifting.

It’s very complicated.

Congress did not apply it to the immigration code by its terms.

It’s not applicable to the States by its terms.

What the Court said in Lopez in saying, in footnote 6, that recidivist possession counts as punishable under the CSA, it pointed to section 844, which defines the penalties available and not anything about procedures.

And even conviction–

Sonia Sotomayor:

–Counsel, you would suggest, then, that even if a prior State court conviction was secured without the advice of counsel, that would qualify as a Federal offense of recidivism.

So let’s assume this case, that in neither the conviction for the one marijuana stick or the conviction for the one sleeping pill, that if those convictions were secured without the advice of counsel, that would be enough to qualify him as a recidivist under the Federal law.

Nicole A. Saharsky:

–Well, that — that raises a very narrow question that, so far as we are aware, has never been addressed in the immigration context, which is whether there could be a proceeding to challenge the narrow question of a conviction obtained in the complete absence of counsel.

This Court said in Custis that there — even though there is a very broad general rule that prior convictions are presumed valid, that in one narrow situation, the complete absence of counsel, that a due process type challenge could be brought.

Now, that question has never been raised in this case, whether such a challenge could be brought in immigration proceedings despite the general rule that there are no such collateral challenges, but that is a different rule and a different body of jurisprudence from this Court, the due process body, as opposed to importing all of the very complicated section 851 procedures into the — the — the inquiry here.

And just to get back to the–

Samuel A. Alito, Jr.:

Could a — could a defendant whose prior conviction was under a State recidivism statute claim that that conviction was invalid because that defendant was at that time deprived of the right of counsel?

Do you see a difference between that situation and the situation in which — and the situation in the sort of case we have here with respect to the issue of whether the prior conviction was invalid because of the deprivation of the right of counsel?

Nicole A. Saharsky:

Yes, I think that they’re potentially distinguishable.

But, you know, this is — this is not a question that has ever come up in the immigration context.

It would be a special rule that would be based on the Court’s decision, we think, in Custis and not anything about 851 procedures.

Samuel A. Alito, Jr.:

Well, why are they distinguishable?

You could — you can — you could — a person faced with removal could challenge a prior conviction on the ground that there was a deprivation of the right of counsel, whether or not it was pursuant to a recidivism — whether or not there was a recidivism issue in it, couldn’t — couldn’t they?

Nicole A. Saharsky:

–Yes, but I think recidivism — I think there’s some confusion in the Court’s discussion, perhaps, that recidivism is not an element of the offense.

You’re never convicted of recidivism.

You’re convicted of an offense, and you might be subject to an increased punishment for that offense because you are a recidivist.

And that’s essentially what Petitioner wants here, is to define the State court offense as having an element of recidivism, but there is one thing that’s clear from this Court’s jurisprudence to this point is that recidivism is separate and unique from anything else that might–

Anthony M. Kennedy:

What — what case do I read to establish that?

Nicole A. Saharsky:

–That recidivism is separate and unique?

Anthony M. Kennedy:

Right.

Nicole A. Saharsky:

Almendarez-Torres would be one.

The Court’s decision in Rodriquez would be another.

Anthony M. Kennedy:

Well, but Almendarez-Torres was a different offense; was it not?

I mean this is — this is a drug offender who — it’s not like a burglar who stops burglary to take up a new trade.

This is — this is a drug offender who continues to repeat under the drug offense laws, and I thought the position was that this shows a particular propensity, a particular immoral attitude that’s not being corrected.

And so that the recidivism makes him a worse person.

Nicole A. Saharsky:

Well, what this Court said in Rodriguez generally about recidivist punishments is you’re always being punished for the last offense, but you’re being punished more severely because it’s shown that incapacitation and deterrence isn’t working for you.

Stephen G. Breyer:

That’s what was worrying me, that’s why I asked the other question.

But the — what was worrying me would be a statute where they — it’s big enough in the State to cover possession with recidivism or not, and they deal with it at the punishment stage, and I can see your point in respect to that.

But that isn’t this statute.

Stephen G. Breyer:

This statute not only doesn’t deal with it at the punishment stage; it’s forbidden to take it into account because what this says is you can only get recidivism if you previously had a conviction for a class A misdemeanor, and the prior conviction here was a class B; and, therefore, one thing we know about the statute is that under this statute, his behavior as a recidivist is as close to irrelevant as you could make it.

That’s why I’m back to the cat burglar.

Nicole A. Saharsky:

Right.

And what — what I’m suggesting about that State statute is that — and this Court said this in Lopez — that Congress didn’t want those variations in State law to change the treatment for individual offenders.

What it wanted, and it did this in aggravated felony provisions, all throughout them, is to identify categories of persons who had done certain conduct that Congress thought was serious enough and treat them all the same for immigration purposes.

And the Court said in Lopez, we’re not going to make the way that State law treats recidivism — or we’re not going to make State law treats an offense change the outcome.

The outcome is going to be based on how Federal law treats the offense.

And that’s why, to get back to one of my earlier answers to your questions, we think that this Court’s decision in Nijhawan is extremely important here, because what the Court recognized in that decision is that Congress, in defining an aggravated felony, sometimes talks about required elements of the offense, and it sometimes talks about extra facts that can be established in the immigration court.

In Nijhawan, there was a fraud or deceit offense with this extra fact of this loss amount of $10,000 or more.

And Congress did the same thing in this provision.

They had–

Stephen G. Breyer:

It did?

Well, Nijhawan uses this provision as an example of where it didn’t.

Nicole A. Saharsky:

–Well, we think that that refers to the first part of the definition.

There are actually two parts of the definition.

This is I think on page — right at the beginning of the appendix to our brief.

If you look at page 1a of the gray brief.

You know, there are two different parts here.

In 43(B), there is

“illicit trafficking in a controlled substance. “

“including a drug trafficking crime, as defined in section 924(c). “

So this — this first part, illicit trafficking, is like a generic burglary type offense where you need to just look at whether the — essentially elements correspond under a modified categorical approach.

But then the second part of it, the drug trafficking crime, is the one that’s defined as a felony punishable under the Controlled Substances Act.

And when you look at a felony punishable under the Controlled Substances Act, which this Court interpreted in Lopez as a — an offense that is punishable as a felony under Federal law, it is just like Nijhawan.

It is an offense with a certain extra fact.

In Nijhawan, it was a fraud–

Ruth Bader Ginsburg:

May I ask you–

Nicole A. Saharsky:

–and deceit offense.

Ruth Bader Ginsburg:

–because your time is running out.

I take it your answer would be the same — at least these two misdemeanors were committed a year apart, but if they were 10 years apart, your answer would still be the same?

Nicole A. Saharsky:

Yes, and I think that’s because Congress has said when it wants the — the timing to matter.

For example, in the end of the aggravated felony definitions, Congress said it didn’t want felony convictions that were more than 15 years old to matter.

You know, Congress — when it wants something old not to matter, it says so, an older conviction.

So we don’t think that there would be a difference for that purpose.

So I just want to make sure I’ve answered the question.

We just think this is like that situation where you have a conviction for a certain type of offense, which here is drug possession, and an extra fact, how it’s punishable in Federal court, and that extra fact can be established in immigration court.

It’s not the kind thing that this Court has said under Almendarez-Torres needs to be treated like an offense element.

I should note that — and this is the point you made, Justice Breyer, that there was not a recidivist enhancement available in Texas court.

Justice Kennedy, that just highlights some of the problems that you identified in terms of the wide variations that we would see in how similarly situated people who have done the same things, two drug possession offenses, would be treated differently under the immigration laws.

And that’s just not what Congress intended.

We talk in our brief — and there’s a long list of differences in State laws, not only in the State procedures, which vary widely from Federal court, but in the State laws in terms of, you know, if you can consider a second possession offense for recidivist enhancement, or only a third or fourth; whether the first offense has to be final, et cetera, et cetera, et cetera.

That there — these differences would just lead to a — a patchwork application laws of the immigration laws, and if there’s any place where we don’t want that, it’s — it’s in immigration, with respect to immigration consequences.

Ruth Bader Ginsburg:

There was another crime, I thought a more serious crime, though still a misdemeanor, in this picture, but the Texas prosecutor didn’t make anything of that.

Remind me of what that was, but I thought it was a — a more grave offense.

Nicole A. Saharsky:

You might be thinking of his prior offense for domestic violence.

Ruth Bader Ginsburg:

Yes.

Nicole A. Saharsky:

That that may have been able to be used to — to enhance his — his drug crime to an enhanced sentence, but that — there wasn’t an enhancement sought on that.

Ruth Bader Ginsburg:

Yes–

Nicole A. Saharsky:

That was a — a 2003 conviction.

Ruth Bader Ginsburg:

–So we respect that judgment on the part of the prosecutor, not to make it a — a ground for a recidivist charge, but we don’t respect the prosecutor — Texas prosecutor saying I’m just going to treat this like it’s a first-time misdemeanor; that’s it.

Nicole A. Saharsky:

In neither case does the prosecutor’s judgment matter.

What matters is the offense conduct that was established by the conviction in State court.

What matters is the offense that the person was convicted of and if that corresponds to a Federal offense that was punishable as a felony in Federal court.

It is true that some charges may be brought and some charges may not be brought, and that would impact what a person has been convicted of.

So there could be disparities based on that.

But what Congress decided was that it had to balance its need for uniformity with a rule that is administrable, and the rule that it picked as administrable is, let’s look at the offense conduct that was established by the conviction.

And when you look at that offense conduct, you have to ask how it could be punished in Federal court.

And it’s that “punishable” language that requires this more hypothetical inquiry on how the events — how the offense could be treated.

And just to summarize, it is clear from the last 20 years that Congress has had a very serious concern about recidivist criminal aliens in the United States, and Congress has made a judgment since 1970 in the drug laws that two drug possession offenses should be punishable as a felony.

And under those circumstances, a person who concededly has committed those two drug offenses and who concededly, if taken to Federal court, could have been punished as a felony, just should not be able to escape the aggravated felony designation that Congress intended for all aliens who are similarly situated.

Nicole A. Saharsky:

If the Court has no further questions, we submit the judgment below should be affirmed.

John G. Roberts, Jr.:

Thank you, Ms. Saharsky.

Mr. Srinivasan, you have 4 minutes remaining.

Sri Srinivasan:

Thank you–

Anthony M. Kennedy:

We usually think of recidivism when we talk about statistics as being repeated for any crime.

This is a recidivism of a special kind.

It’s repeating the same — the same thing.

Is that essential to your argument?

I know it’s essential to the — to the Federal statute.

Sri Srinivasan:

–Right, and because it’s essential to the Federal statute, it’s necessarily a part of our argument.

I don’t think our argument would be any different if the Federal statute read differently, but you can only be punishable as a felon under Federal law if you had a prior drug conviction, and if you had a prior drug conviction that was in fact found to exist.

And I think, Justice Kennedy, the first point I’d like to make in rebuttal — there’s two points I’d like to make.

The first addresses a question you raised concerning what happens in a situation in which the second proceeding is a Federal proceeding rather than a State proceeding.

And I think this is important to highlight the government’s response, because if the second proceeding is a Federal proceeding, we have a person who has a prior conviction for drug possession.

We have a person who is then prosecuted in Federal court for a second time for drug possession.

The prosecutor by hypothesis never brings the initial conviction into play.

The court therefore never finds that the person is a recidivist.

As a consequence, that person cannot as a matter of law receive a felony sentence.

They can only be sentenced as a misdemeanant.

But nonetheless, the government would say that they have been, quote,

“convicted of a felony, punishable under the Controlled Substances Act. “

close quote–

Antonin Scalia:

How do you–

Sri Srinivasan:

–even though no felony sentence could be imposed.

Antonin Scalia:

–How do you distinguish Nijhawan?

I mean, there what made it a Federal felony was the fact that more than $10,000 was obtained from the victims.

But that was not found in the — in the State conviction.

It simply was not.

Sri Srinivasan:

There were — there were two things that made it a Federal felony, Justice Scalia.

First was it had to be an offense that involved fraud.

Antonin Scalia:

That’s right.

Sri Srinivasan:

And then — and that had to be found by the convicting court.

Antonin Scalia:

Right.

Sri Srinivasan:

There was no issue about that.

Our–

Antonin Scalia:

No issue.

Sri Srinivasan:

–Our point is that–

Antonin Scalia:

Well, what about the $10,000?

That–

Sri Srinivasan:

–That’s the–

Antonin Scalia:

–He was never convicted of having obtained by fraud more than $10,000 from the victim.

Sri Srinivasan:

–But — but there’s a very important textual distinction, Justice Scalia, because under the provision at issue in Nijhawan, the offense had to involve fraud, and then there was a separator in which the loss exceeds $10,000.

And the Court focused on the fact that the text read “in which”.

That was critical, and another thing that was critical in Nijhawan was that if you looked at Federal statutes and asked, were there any that as to which the elements would require a loss in excess of $10,000, there were none.

And because of that practical consequence, the Court reached the conclusion that Congress would have intended, that the $10,000 be something that the immigration judge could have found.

We have the opposite situation here.

Antonin Scalia:

You still had the word “convicted”.

Sri Srinivasan:

You had — sure.

Antonin Scalia:

Which is what you’re relying on.

That word was applicable there as much as it’s applicable here, and we did not require him to have been convicted of having obtained more than $10,000.

Sri Srinivasan:

Because, again, the test — the text also had “in which”, which the Court found critical — that text is lacking here — and because the statute would have had no practical consequence, absent the Court’s interpretation.

Stephen G. Breyer:

Well, that’s — that–

Sri Srinivasan:

That’s not true here.

Stephen G. Breyer:

–Because she got to that argument at the end, and she said my — I wrote that, I think, and I — when I used as an example or the text uses an example, this provision is one where you don’t look to real conduct.

She said that was a mistake, really.

It was overstated, because what they’re saying is that recidivism analogous to the $10,000 was meant to be a real conduct aspect, not just offense of conviction, and — and she gave similar reasons.

That’s why — similar reasons are that the States are too mixed up in this; it will be too difficult to look at that element itself.

So she’s trying to analogize that to the $10,000.

Now, why isn’t that a good analogy?

Sri Srinivasan:

Because for both reasons that the Court found that you could look to the circumstances in Nijhawan, neither of those two reasons applies here.

Sri Srinivasan:

You don’t have a textual separator.

You don’t have the words “in which”.

All you have is the word “convicted”.

And you also don’t have the consequence that the — the provision would cease to have any practical implications under our reading.

It would absolutely have practical implications under our reading, because anytime a person was found to have been a recidivist and their sentence was raised, their maximum sentence was raised as a consequence, they will have been deemed to have been aggravated felon.

But here, that didn’t happen.

You’d have to understand that in the Federal system, even though an individual could not as a matter of law be sentenced as a felon, they nonetheless would have been deemed to have been convicted of a felony, and at the very least — and this is the second point I’d like to make, if I could just–

John G. Roberts, Jr.:

Make your second point short.

Sri Srinivasan:

–Thank you, Mr. Chief Justice.

Principles of lenity which the government agrees are potentially applicable here would dictate ruling in our favor even if you thought that the text was ambiguous.

The principles of lenity do apply.

An individual who pleads guilty to possession in exchange for a prosecutor’s decision to refrain from charging him as a recidivist and, therefore, could only be sentenced as a misdemeanor I think should be allowed to be convinced that he has been convicted of a misdemeanor rather than a felony.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.