Lopez v. Gonzales – Oral Argument – October 03, 2006

Media for Lopez v. Gonzales

Audio Transcription for Opinion Announcement – December 05, 2006 in Lopez v. Gonzales

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John G. Roberts, Jr.:

We’ll hear argument first this morning in Lopez versus Gonzales and Toledo-Flores versus United States.

Mr. Long.

Robert A. Long, Jr.:

Mr. Chief Justice, and may it please the Court:

A drug-trafficking crime is defined in 18 U.S. Code Section 924(c) as any felony punishable under the Controlled Substances Act or two other Federal statutes.

“Punishable” is a key term.

If that word is omitted, the remaining phrase,

“any felony under the Controlled Substances Act. “

clearly refers to felony violations of the Controlled Substances Act.

The parties agree that “punishable” means “subject to criminal sanctions”.

So, a 924(c), is conduct that is subject to being punished under the Controlled Substances Act.

State felonies are not, themselves, punishable under the Controlled Substances Act.

It is not a Federal crime to violate State law.

The defendant’s conduct may be punishable under both Federal and State law, but a State felony is not a felony punishable under the Controlled Substances Act.

Anthony M. Kennedy:

Well, do you agree that if there were a State conviction for an offense that would have been punishable under the Federal law, their both being felonies, that enhancement can apply, in that instance, and that that does meet the definition?

Robert A. Long, Jr.:

Yes, Justice Kennedy.

Our position is, if the conduct would violate a felony provision of the Controlled Substances Act or one of the other two Federal statutes, it then is a drug-trafficking crime under 18 U.S. Code Section 924(c), and, therefore, it is an aggravated felony.

But there are three additional textual indications, in addition to simply the 924(c).

The first one is, there are other provisions of Section 924… (e), (g), and (k)… where Congress actually used very similar language.

It referred to conduct punishable under the Controlled Substances Act or the two other statutes, or offenses under the Controlled Substances Act or the two other Federal statutes.

But then, it added an express reference to State offenses, so–

Antonin Scalia:

Where–

Robert A. Long, Jr.:

–the implication is that when Congress meant to include State offenses, it said so.

Antonin Scalia:

–Where are those sections?

Robert A. Long, Jr.:

The… you can find them; they’re in the appendix to Lopez’s blue brief, Justice Scalia–

Antonin Scalia:

Okay.

Robert A. Long, Jr.:

–and the provisions on (e), (g), and (k)… 924 begins on page 3A of the appendix, and (e) begins on 5A, and you can pick up… (g) is on 6A, (k) is on 7A.

Antonin Scalia:

What are the sections… (b)?

Robert A. Long, Jr.:

They’re subsections (e), (g), and (k).

Antonin Scalia:

All right.

John G. Roberts, Jr.:

Well, that doesn’t carry too much weight, though, because the provision that… I’m looking at (g)(3),

John G. Roberts, Jr.:

“violates any State law relating to any controlled substance. “

can be broader than what’s punishable under the Federal Controlled Substances–

Robert A. Long, Jr.:

It–

John G. Roberts, Jr.:

–Act.

Robert A. Long, Jr.:

–It is a bit broader, Mr. Chief Justice, but if you look at all of these provisions, the implication is clearly that Congress was referring to State law when it meant to include State law.

I mean, the… if you looked at (e), for example, there it’s a parallel construction; it’s not broader.

I think perhaps the government would say,

“Well, we’re talking about offenses. “

That’s a little different from a felony, but “offenses” is actually a broader term.

I’ll mention an additional statute, which was not in the appendix… 18 U.S. Code Section 3559(c)(2)(H).

This provision… it’s a similar provision; it defines a CSA.

An additional textual indication is, it’s agreed… and this Court has already said, in Gonzales against the United States, that a drug-trafficking crime under 924(c), under the criminal statute, must be a Federal crime.

924(c)(1)(A) refers to a crime that may be prosecuted in a court of the United States, and that clearly refers to a Federal crime.

The definition of drug-trafficking crime, by its term, says it is for purposes of 924(c), so there is no reason why Congress would have wanted to include State felonies in a definition that applies to a Federal criminal provision that all concede applies only to Federal predicate offenses.

And–

Samuel A. Alito, Jr.:

In–

Robert A. Long, Jr.:

–the Government’s interpretation would significantly broaden Section 924(c) to include Federal misdemeanors.

Samuel A. Alito, Jr.:

–In 8 U.S.C. 1101(a)(43)(B), what, in your view, does the first phrase,

“illicit trafficking in a controlled substance. “

add to the reference to a drug-trafficking crime–

Robert A. Long, Jr.:

Justice–

Samuel A. Alito, Jr.:

–as defined by 924(c)?

Robert A. Long, Jr.:

–Justice Alito, in our view, “illicit trafficking” means any offense that has a trafficking element… that is, distribution, possession with intent to distribute, manufacture–

Samuel A. Alito, Jr.:

But are there any trafficking offenses that would not fall within 924(c) if you define a “trafficking offense” that way?

Robert A. Long, Jr.:

–Yes.

They’re… most offenses under the Controlled Substances Act are trafficking offenses.

There are a few that are simple possession.

There is a date-rape drug that I will not try to pronounce, but it’s listed in 21 U.S.C. Section–

Samuel A. Alito, Jr.:

Well, no, there–

Robert A. Long, Jr.:

–844.

Samuel A. Alito, Jr.:

–are possessory… there are 924(c), but is it not the case that any… if you interpret “trafficking” to mean trafficking in the way the word would be used in ordinary speech… that any State trafficking offense you can think of would have a corresponding felony violation under the Controlled Substances Act, so that if you read the statute that way, the initial phrase is superfluous?

Robert A. Long, Jr.:

I believe the Government has a footnote in their brief where they suggest there are some State trafficking offenses that actually do not have a parallel in Federal law.

Soliciting, I think, may be one of them.

So, I think there are, in fact, some.

And our position, of course, is that by adding illicit trafficking… any trafficking offense, State or Federal, whether or not it is punishable under the Controlled Substances Act, is an aggravated felony.

Samuel A. Alito, Jr.:

Let me ask the same question a different way.

If… since 924(c) includes some 924(c), doesn’t that show that the way Congress used

“illicit trafficking in a controlled substance. “

is not in the sense in which the term is used in ordinary speech, but’s much broader, so that it can include “mere possession” offenses?

Robert A. Long, Jr.:

The… Justice Alito, there is an argument… it’s developed in the brief of the American Bar Association… that, because illicit trafficking is the general category, that all the aggravated felonies in this category should have a trafficking component; and, therefore, the felonies punishable under the Controlled Substances Act that are “simple possession” offenses should not, in fact, be included.

That is not an argument that we have pressed in our brief.

We read the phrase to say

“illicit trafficking, including any felony punishable under the Controlled Substances Act. “

So, I would agree with you, to the extent that if it is a felony punishable under the Controlled Substances Act, Congress has said, by definition, that it is included in the category of illicit trafficking.

Stephen G. Breyer:

But that’s ambiguous.

That’s perfectly ambiguous.

Because, the case of your client, it is a felony, and it is punishable under the Controlled Substances Act.

Robert A. Long, Jr.:

Well, Justice Breyer, it is a misdemeanor under–

Stephen G. Breyer:

No, that’s–

Robert A. Long, Jr.:

–the Controlled–

Stephen G. Breyer:

–right.

But it is a felony under South Dakota law.

And what the statute says… and that’s the Government’s argument… they say

“any felony punishable under the Controlled Substances Act. “

They don’t mean, necessarily, any felony punishable as a felony under the Controlled Substances Act.

Robert A. Long, Jr.:

–Well–

Stephen G. Breyer:

It might mean anything that is a–

Robert A. Long, Jr.:

–But–

Stephen G. Breyer:

–felony, and–

Robert A. Long, Jr.:

–But–

Stephen G. Breyer:

–it is also punishable; in which case, you lose.

But, in the first case, you win.

Robert A. Long, Jr.:

–But, you know–

Stephen G. Breyer:

So, what am I supposed to look to, to decide which is–

Robert A. Long, Jr.:

–Well, you could look to the case of Jerome against United States, which is… which was a unanimous decision of this Court… in which the Court held that the… just the phrase “any felony”–

Stephen G. Breyer:

–Uh-huh.

Robert A. Long, Jr.:

–in the Federal bankruptcy statute should be interpreted to mean any Federal felony, so–

Stephen G. Breyer:

Oh, but you don’t mean that, because you’re prepared to concede… at least I thought you were, until your last argument… you’re prepared to concede that if a person engages in a crime that is punishable as a felony under South Dakota law, and it is also punishable as a felony under Federal law, under 801, et seq, well, that counts.

Robert A. Long, Jr.:

–Well, but, I mean, the Government–

Stephen G. Breyer:

Do you–

Robert A. Long, Jr.:

–accuses us–

Stephen G. Breyer:

–Do you concede that–

Robert A. Long, Jr.:

–The–

Stephen G. Breyer:

–or not?

Robert A. Long, Jr.:

–The Government accuses us of making that concession–

Stephen G. Breyer:

No, no.

Robert A. Long, Jr.:

–but we–

Stephen G. Breyer:

You–

Robert A. Long, Jr.:

–really don’t.

Stephen G. Breyer:

–you say your answer is, you don’t make the concession?

Robert A. Long, Jr.:

We really don’t.

I mean, we concede that if the… I mean, 8– 924(c), the criminal statute, says nothing about State law.

It says nothing about any conviction under Federal or State law.

It’s simply a question of whether the conduct is punishable, capable of being punished, under the Controlled Substances Act–

Anthony M. Kennedy:

But I thought that–

Robert A. Long, Jr.:

–the Federal statute.

Anthony M. Kennedy:

–was the concession you made in response to my–

Robert A. Long, Jr.:

Well–

Anthony M. Kennedy:

–question.

Robert A. Long, Jr.:

–yes.

Robert A. Long, Jr.:

I… but I just want to be careful about the language in which we make–

John Paul Stevens:

But you–

Robert A. Long, Jr.:

–this concession–

John Paul Stevens:

–make the concession, as I understand it, because it’s a Federal felony, not because it’s a State felony–

Robert A. Long, Jr.:

–Right.

John Paul Stevens:

–isn’t that right?

Yes.

Ruth Bader Ginsburg:

Is it–

Robert A. Long, Jr.:

Precisely.

Ruth Bader Ginsburg:

–Is it… if this is an ambiguous statute, do you… what mileage do you get from Barrett?

There is certainly an argument that what was… Congress was trying to do was to codify that practice of saying,

“If there is analogous felony… if there is analogous crime under State law, that should be included. “

And that made good sense.

Robert A. Long, Jr.:

Yes.

If it’s ambiguous, and you look to the legislative history, I think we get considerable mileage from Barrett.

The Congress was pretty clear that what it was doing was codifying Barrett.

The Barrett approach, which was then followed by the BIA for more than a decade, was that they would count State drug crimes, but only if they were felonies under the Federal statutes, under the Controlled Substances Act.

So, I think we get considerable mileage out of that.

Ruth Bader Ginsburg:

What–

Anthony M. Kennedy:

You’ve–

Ruth Bader Ginsburg:

–about the–

Anthony M. Kennedy:

–answered Justice Breyer by citing the Jerome case.

After Jerome, we decided United States vs. Gonzales, having to do with the consecutive or concurrent sentencing terms.

And it… are those two cases in some tension?

Gonzales didn’t mention Jerome.

And I noticed that none of the briefs mentioned it either.

Is there some tension in the cases?

And, if so, is this a case where, when we write an opinion, whatever the outcome, we should talk about that?

And, if that’s so, what should we say?

Robert A. Long, Jr.:

I don’t see any tension.

Robert A. Long, Jr.:

Gonzales was just about consecutive versus concurrent sentences under State versus Federal law.

I mean, the Court has applied that principle–

Anthony M. Kennedy:

But it does–

Robert A. Long, Jr.:

–For example, in Taylor–

Anthony M. Kennedy:

–it does seem to limit the broad statement in Jerome, without mentioning Jerome.

Robert A. Long, Jr.:

–Well, but… I mean, with respect, Justice Kennedy, I don’t see how it limits it.

And there have been other cases… Taylor is an example… where the Court adopted a single definition of 924(e).

That applies the Jerome principle.

I mean, it’s a principle that has been applied in a number of this Court’s cases.

John G. Roberts, Jr.:

But has it ever been applied in a… to a statute that specifically says that the term “aggravated felony” applies to an offense described in this paragraph, whether in violation of Federal or State law?

Robert A. Long, Jr.:

Well–

John G. Roberts, Jr.:

That would seem to me to be a very express legislative repudiation of the Jerome–

Robert A. Long, Jr.:

–Well–

John G. Roberts, Jr.:

–principle.

Robert A. Long, Jr.:

–when we get to that language, Mr. Chief Justice… and I do think it helps the analysis to first decide, What is the definition of a 924(c), the criminal statute?

Once you’ve decided that… now, when you move back to the INA, there is this language.

The term 101(a)(43), whether in violation of Federal or State law, or the law of a foreign country.

Now, we think that’s pretty straightforward.

It has to be an offense described.

So, the simple example is money laundering.

It… the offense described in 18 U.S. Code Section 1956, “money laundering”, is an aggravated felony.

So, a violation of State law or of foreign law can be an aggravated felony, but only if it is the offense described in 1956.

If States or a foreign government has a broader definition of “money laundering”, that can’t count, because it’s not the offense described.

And when you turn to a drug-trafficking crime, the way that offense is described in 101(A)(43) is… Congress picked up, in its entirety and without any modification, the definition of 924(c), a felony punishable under the Controlled Substances Act.

So, if you agree that, in the criminal statute, that means a felony violation of the Controlled Substances Act, the offense described is the felonies in the Controlled Substances Act, not the felonies in the misdemeanors.

And State… if State law wants to call a… something that’s a misdemeanor under Federal law a felony, they can do that, but they can’t expand the offense described.

The offense described, the way Congress did that, is–

John Paul Stevens:

But are you saying it would also include State trafficking offense, because it’s described in the word “trafficking”?

Robert A. Long, Jr.:

–Yes.

I’m focusing on the definition of “drug-trafficking crime”.

Robert A. Long, Jr.:

It… also, there’s the illicit trafficking piece of this.

And, I should add, any State offense that is illicit trafficking is going to be an aggravated felony.

We recognize that.

If there are no further questions, I’d like to reserve the balance of my time.

John G. Roberts, Jr.:

Thank you, Mr. Long.

Mr. Crooks, we’ll hear now from you.

Timothy Crooks:

Mr. Chief Justice, and may it please the Court:

I would first like to address the Government’s contention that Mr. Toledo-Flores’s appeal is moot.

His appeal of his sentence is not moot, primarily because he is still subject to the sentence that is the subject of that appeal.

Even though Mr. Toledo-Flores was released from prison on April 21st of this year, and deported to Mexico, he’s still subject to the supervised-release portion of his sentence, because supervised release is not automatically extinguished by deportation.

John G. Roberts, Jr.:

But there’s no supervised release of people outside the United States.

Timothy Crooks:

There’s no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court, and still subject to the conditions of supervised release that are not dependent upon supervision.

John G. Roberts, Jr.:

Well, like what?

Timothy Crooks:

Well, for example, he shall not excessively use alcohol, he shall not associate with persons who–

John G. Roberts, Jr.:

What’s going to happen to him if he does that?

Timothy Crooks:

–If the District Court learns about it he could be violated… he could be extradited back from Mexico, and he could face up to a year more in prison.

John G. Roberts, Jr.:

Has anything like that ever happened before with people subject to supervised release who are then deported?

It would be the first time, if the District Court did that, right?

Timothy Crooks:

There have been instances in the case law where people on supervised release have been extradited back from foreign countries based on violations of their supervised release.

But the point is, under the statutory scheme, Mr. Toledo-Flores is still subject to the District Court’s jurisdiction.

The District Court retains jurisdiction to modify his supervised release, to change the conditions, or to cut the supervised release.

If the District Court learns of a violation and a violation warrant is filed within the supervised-release period then the supervised-release period is effectively tolled and the District Court–

Ruth Bader Ginsburg:

And that–

Timothy Crooks:

–retains–

Ruth Bader Ginsburg:

–that period has how many months to run?

Timothy Crooks:

–Until April 20th of next year, Your Honor.

Ruth Bader Ginsburg:

Do you… you said you rely primarily on that argument… do you have another argument?

Timothy Crooks:

Yes, we do, Your Honor.

After April 20th, of course, in accordance with this Court’s decisions in Spencer v. Kemna and Lane v. Williams, the Court needs to look for a collateral consequence of the then-expired sentence.

And, in this case, we point to the possibility that a retrospective reduction in the term of imprisonment… which, of course, will not give excess prison time back to Mr. Toledo-Flores… but even to reduce the number of the sentence, on paper, could be a favorable factor for him to get a waiver of inadmissibility, should he ever want to get a nonimmigrant visa in the future to come visit his U.S. citizen children.

Antonin Scalia:

We have a case involving standing which says that… you know, the doctrine of standing is more than a… an exercise in the… in the conceivable.

And this seems to me an exercise in the conceivable.

Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he’s on supervised release in the United States, or is going… is going to apply… having been deported from the country for criminal offenses, is going to apply to come back in the… these are ingenious exercises in the conceivable.

This is just not the real world.

Timothy Crooks:

Well, my answer to that, Justice Scalia, is that this Court has never said that an appeal of a sentence may become moot before that sentence is expired.

And in cases like Lane v. Williams and Spencer v. Kemna, the sentences were completely expired, and, therefore, the Court had to look for collateral consequences of the now-expired sentence.

Here, in consequence… in contrast, Mr. Toledo-Flores is still under the sentence, which is a direct consequence–

Antonin Scalia:

That depends on whether you consider the sentence to be effectively expired once he leaves the country, if the sentence is one of supervised release, which is impossible once he leaves the country.

Supervision being impossible, supervised release is not a realistic consequence of the prior conviction.

Timothy Crooks:

–But that argument could be made with respect to a person who is in the United States, who is subject to a term of probation where the only condition is that he not further violate the law.

In that–

John G. Roberts, Jr.:

Well, no, because–

Timothy Crooks:

–instance–

John G. Roberts, Jr.:

–in that… in that instance, action can be taken against him if he does further violate the law under the terms of probation.

The point is that the jurisdiction of the probation office or the District Court doesn’t extend to Mexico.

Timothy Crooks:

–Well, that’s true.

But if we’re talking about future violations of the law, it is very often the case that persons who are deported to Mexico do come back, and do have their supervised release–

John G. Roberts, Jr.:

Well–

Timothy Crooks:

–revoked.

John G. Roberts, Jr.:

–you don’t want to say that your case is not moot because your client is going to violate the law again in the future.

Timothy Crooks:

No, not at all, Your Honor, but I’m saying that, in the respect that you just talked about for the U.S. citizen, it’s not any different, that the court retains jurisdiction to violate the supervised release, and to revoke it, and then to send him back to prison.

David H. Souter:

No, but it is different, in the respect that he would first have to violate the law by entering the United States.

Timothy Crooks:

That is true.

But in most cases, that is the only violation of supervised release for which they are later revoked.

And, in that respect, it would be no different from a person who violates his probation by driving while intoxicated or committing some other legal violation.

Stephen G. Breyer:

Do you work in–

Ruth Bader Ginsburg:

On–

Stephen G. Breyer:

–this area?

Ruth Bader Ginsburg:

–On collateral consequences, do you have… what is your best authority to say that in… it would keep this case from being moot?

Timothy Crooks:

We cited, in our reply brief at page 4, Your Honor, the Hamdi case, United States v. Hamdi, from the Second Circuit, where the Second Circuit found that the possibility of reducing the term of imprisonment, even retrospectively, could have an impact on the ability to get a waiver of inadmissibility in–

Ruth Bader Ginsburg:

Because–

Timothy Crooks:

–the future.

Ruth Bader Ginsburg:

–Because the length of the sentence counts heavily in the attorney general’s assessment, is that–

Timothy Crooks:

That’s correct, Your Honor.

In Hamdi, they pointed out that the length of the sentence goes to two of the three factors that are evaluated by Immigration officials… under a decision called Matter of Heronka… that are used in evaluating whether a person should be granted a waiver of inadmissibility in the discretion of the attorney general–

Antonin Scalia:

Do you think there’s a realistic possibility that this person is going to be readmitted?

A realistic possibility?

Timothy Crooks:

–I do not know, Your Honor.

He’s–

Antonin Scalia:

Oh.

Timothy Crooks:

–got U.S. citizen–

Antonin Scalia:

Do you think there’s a realistic possibility he’s going to try to get readmitted, so that he can be subjected to really enforced supervised release?

Timothy Crooks:

–Well, I think that there is a possibility that he… he could qualify for a nonimmigrant visa at some point–

Antonin Scalia:

Has he applied for such a visa?

Has he expressed any intention to apply?

Timothy Crooks:

–He has not, Your Honor, but he does have U.S. citizen–

Antonin Scalia:

Well–

Timothy Crooks:

–children–

Antonin Scalia:

–then it’s an exercise in the conceivable, it seems to me.

Timothy Crooks:

–But this Court has never held that a… it would be unfair to hold that an appeal of a sentence can be moot while that sentence is still in effect, and when it can still have consequences for Mr. Toledo-Flores.

And that’s what distinguishes this case from all the other cases decided by this Court, is that the sentence itself is the concrete and continuing injury that defeats–

John Paul Stevens:

May I–

Timothy Crooks:

–mootness in this case.

John Paul Stevens:

–ask this question?

It’s… presuming… supposing we say it’s not moot, and you prevail.

Could he be resentenced without being present in court?

Timothy Crooks:

Yes, he could, Your Honor.

We do resentencing in absentia all the time in the Southern District of Texas–

Stephen G. Breyer:

In the Southern–

Timothy Crooks:

–in circumstances that are similar.

Stephen G. Breyer:

–In the… have you ever heard of, or had, a client… or heard of a person from Mexico who had been deported because he has been involved in drugs, and the Government wants to bring him back because he may be a witness… maybe something develops, some other members of the gang are there, they’d like his information?

Timothy Crooks:

That does happen occasionally.

People are paroled, then, to testify in court proceedings or to cooperate with Federal–

Stephen G. Breyer:

So, if–

Timothy Crooks:

–or State–

Stephen G. Breyer:

–they pick up some friends of his who are engaged in drugs, the Government might decide to try to get him back.

Timothy Crooks:

–That’s correct, Your Honor.

Antonin Scalia:

Is there any indication that that’s in the works, or is this just another conceivable thing?

Timothy Crooks:

There is no indication in the record–

Antonin Scalia:

Yes.

Timothy Crooks:

–that that is in the work.

I do want to point out that–

Stephen G. Breyer:

Well, it’s conceivable, I guess, that people will break their parole.

Often it doesn’t happen; sometimes it does.

Sometimes they want to get him back; sometimes they don’t.

Timothy Crooks:

–That’s all very true, Justice Breyer.

I wanted to point out that, in Campo Serrano, which we’ve cited in our brief, this Court held that a deported alien’s probation term was a continuing criminal sentence that saved the case from mootness.

And the Court pointed to the fact that he… that the deported alien in Campo Serrano could, just like Mr. Toledo-Flores, have his conditional release revoked, and he could be reimprisoned, upon a finding that he had violated his conditions.

And we believe that Campo Serrano points very strongly in the direction that this case is not moot.

On the merits, I would just like to point out that the interpretation that is advanced by the petitioners here promotes the very sort of uniformity that this Court has found desirable in cases like Jerome v. United States and its progeny, including Taylor v. United States, in that the same conduct of conviction will have the same immigration and same Federal sentencing consequences, irrespective of the labels or maximum prison terms affixed by the particular States that set out that conduct.

And–

John G. Roberts, Jr.:

Thank you, Counsel.

Timothy Crooks:

–Thank you.

John G. Roberts, Jr.:

Mr. Kneedler.

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court:

In order for a State drug offense to be an aggravated felony under Section 1101(a)(43)(B) of the INA, two… there are two requirements.

The underlying conduct must be punishable under the Controlled Substances Act or one of the other specified Federal statutes, and it must be a felony.

Because Petitioner’s underlying conduct here was punishable under the Controlled Substances Act, and was a felony under State law, they are… they were properly found to have committed aggravated felonies.

That conclusion follows, not just from Section 924(c), but, more importantly, by the fact that what is relevant here is, What is the meaning of 1101(a)(43), which is the operative provision, which just happens to incorporate the definition of 924(c)?

And there are three features of 1101(a)(43) with–

Anthony M. Kennedy:

Why don’t you say “it just happens”?

I mean–

Edwin S. Kneedler:

–No.

No.

But… no, but… yes.

No, it’s–

Anthony M. Kennedy:

–it’s there in the statute.

Edwin S. Kneedler:

–It’s… I’m sorry.

Anthony M. Kennedy:

That’s why you’re here.

Edwin S. Kneedler:

It expressly incorporates it, yes.

Yes.

But the… but the operative provision is section 1101(a)(43) of the INA, and there are three features of that that we think reinforce this conclusion.

The first is that the consequences of aggravated felony status under the INA turn on whether one is convicted, not whether they have committed the crime, and that’s true both with respect to the enhancement of sentences under 1326 and the… and the immigration consequences.

And we think it makes particular sense when you’re talking about a conviction to look about how the… to look at how the crime is treated under the jurisdiction of conviction.

Antonin Scalia:

I thought the Government has taken the position… and as far as I know, all the Courts of Appeals have bought the Government’s argument… that there… you do not need a conviction–

Edwin S. Kneedler:

You do–

Antonin Scalia:

–that so–

Edwin S. Kneedler:

–not need a conviction under Section 924 if you’re bringing a prosecution under Section 924(c).

Antonin Scalia:

–Yes.

You don’t–

Edwin S. Kneedler:

You do not… you do not need a conviction.

But, in order… the immigration consequences–

Antonin Scalia:

–Yes, but–

Edwin S. Kneedler:

–have been–

Antonin Scalia:

–but 924(c) is incorporated in 1101(a)(43).

It’s–

Edwin S. Kneedler:

–Right.

Antonin Scalia:

–incorporated.

So, you want us to interpret 924(c) one way for criminal convictions… a criminal sentence… that is, you don’t need a conviction in order to get the enhancement… but another way for–

Edwin S. Kneedler:

No.

Antonin Scalia:

–for the INA?

Edwin S. Kneedler:

Our point is not that 924(c) requires a conviction when it’s in the Immigration Act, it’s that the immigration consequences of that incorporation turn on whether someone was convicted of an aggravated felony.

Antonin Scalia:

Why is–

Edwin S. Kneedler:

So–

Antonin Scalia:

–that?

Edwin S. Kneedler:

–Well, the ground of deportation that refers to “aggravated felony” refers to someone who has been convicted of an aggravated felony.

The ineligibility for cancellation of removal turns on whether someone has been convicted of an aggravated felony, and the enhanced penalties under Section 1326 for someone whose illegal reentry, following aggravated felony, is for a conviction for an aggravated felony.

So, my point is that, under the INA, the consequences turn on conviction, and it makes sense to look at the jurisdiction of conviction… here, State law… to see whether it… to look at the… to determine the status of the crime.

And since State law determines it to be a felony, that’s the–

Ruth Bader Ginsburg:

Mr. Kneedler–

Edwin S. Kneedler:

–proper place to look.

Ruth Bader Ginsburg:

–if there is room for more than one construction of this statute, it seems to me unseemly, in the immigration context, to say that two people who have committed the identical acts, one of them is barred from ever coming back, doesn’t have any of the dispensations, and the other does, because of the happenstance of the State in which they were convicted.

That kind of disuniformity in an area where the Constitution expressly charges Congress with authority to make uniform laws, it’s… doesn’t that uniform-law specification in the Constitution tug in the direction of the interpretation that Mr. Long was–

Edwin S. Kneedler:

No, we–

Ruth Bader Ginsburg:

–presenting to us?

Edwin S. Kneedler:

–we think it does, for several reasons.

First, with respect to the constitutional requirement, the uniformity provision applies to uniform rules of naturalization; that is, citizenship.

This… we’re not talking about citizenship here, we’re talking… we’re talking about the eligibility of aliens to remain in the country.

Beyond that, even where the Uniformity Clause applies… and there’s, for example, a parallel Uniformity Clause for bankruptcy… that’s never been interpreted to mean that consequences of certain conduct under State law can have no impact on bankruptcy law, and that there can’t be a variation.

The State-law homestead exemption under the… under the bankruptcy laws is a good example of that.

But, going beyond that, with respect to the issue of uniformity generally, Congress has established uniform standards in Section 1101, either in terms of identifying the conduct in certain instances; in other instances, by identifying the minimum sentence that was actually imposed.

In this case, we think, with respect to drug-trafficking crimes, it… it’s imposed a uniform standard, in terms of the length of the sentence; it has to be a felony.

That’s… that is uniformity.

But the… to answer your point more directly, it is a principle throughout 1101(a)(43) that one looks to State law, not to… not to a… some supposed uniform standard of Federal law.

And, for example, if you… several subparagraphs… and if you’ll… 1101(a)(43) is set out at page 12(a) of the appendix to our brief… three subparagraphs… (j), (q), and (t)… refer to the sentence that may be imposed for a violation.

Well, when you’re talking about a State conviction, that’s clearly referring to the sentence that may be imposed under State law for a conviction.

Four other subparagraphs… (f), (g), (r), and (s)… turn on the sentence that was actually imposed.

That means that… in the case of a State crime, as we have here, that State law has to authorize the sentence, and that the State Court, applying State sentencing principles, has actually imposed a crime of… for… of at least 1 year.

So, it is… it is infused in Section 1101(a)(43) that, in fact, you do look to the consequences of an offense under State law.

Stephen G. Breyer:

I’m prepared to accept perfect ambiguity here, linguistically.

Stephen G. Breyer:

And I thought of an empirical question, that you may know the answer to, that might shed some light.

Now, going along the way… maybe I’m making a mistake to point it out, if I am… but I go to the key thing here, which is the words in 924(c), What is a “drug-trafficking crime”?

A “drug-trafficking crime” is a crime…

“any felony punishable under the Controlled Substances Act. “

That could mean an act, physically, that is a felony under some law, and is also punishable under the Controlled Substances Act as a misdemeanor.

Okay?

Felony under… it could pick that up.

And it also could mean any conduct which is punishable as a felony under the Controlled Substances Act.

And I could look at those words a thousand times and not have a clue which it means.

So, I thought of an empirical test.

This statute, 924(c), happens to be a statute that, if you engage in a drug-trafficking crime, as defined, and you have a gun with you, you get mandatory 5 years.

That’s the point of it.

And the Government does all the prosecuting.

So, in how many cases where a person committed a misdemeanor offense, simple possession, and had a gun, did the Government insist that they get the 5 years minimum?

Now, if you’re prepared to tell me “a lot of ’em”, I’m prepared to tell you, the Government has consistently interpreted the statute the way you are now.

But if you’re prepared to tell me “zero”, I would say I would be suspicious of an interpretation that comes along now for the first time.

And my mind is open on it.

I’m quite interested in the answer.

Edwin S. Kneedler:

To my knowledge, we have not brought crime… prosecutions under 924(c)(1), based on the circumstances you posit, but that’s–

Stephen G. Breyer:

But if–

Edwin S. Kneedler:

–but I don’t think that that goes very far with respect to answering this question.

For one thing, as this Court pointed out in the Gonzales decision, the requirement that there be a Federal crime, and, therefore, a Federal felony under 924(c)(2), comes from the language in 924(c)(1) that says that the crime must be subject to prosecution in a court of the United States.

And this Court, in Gonzales, said it’s that language that renders the… renders it a requirement that it be a Federal crime.

The definition of–

Stephen G. Breyer:

–No, no.

We both agree.

All… everybody agrees here.

It doesn’t have to be a Federal crime.

Edwin S. Kneedler:

–It doesn’t have to be–

Stephen G. Breyer:

And–

Edwin S. Kneedler:

–under 1101–

Stephen G. Breyer:

–Correct, it doesn’t have–

Edwin S. Kneedler:

–Right.

Stephen G. Breyer:

–to be.

It could be conduct that violates the State law, but… and punish it under the State law… but the conduct involved would have to constitute what is a felony under the Controlled Substances–

Edwin S. Kneedler:

Would have to–

Stephen G. Breyer:

–Act.

Edwin S. Kneedler:

–in our view, it would have to constitute–

Stephen G. Breyer:

A felony or a misdemeanor.

Edwin S. Kneedler:

–it would have to be punishable under the Controlled Substances–

Stephen G. Breyer:

Yes.

Edwin S. Kneedler:

–Act.

Stephen G. Breyer:

All right.

Edwin S. Kneedler:

But the important point here is–

Stephen G. Breyer:

All right.

So, I say it’s suspicious.

Edwin S. Kneedler:

–But the question is not what 924(c)(2) means, standing alone or in the abstract; it’s what it means, as incorporated into 1101(a)(43).

And–

John G. Roberts, Jr.:

And, of–

Edwin S. Kneedler:

–there–

John G. Roberts, Jr.:

–course, that’s… when you get to that, it must give you pause that your analysis is of a term, “drug-trafficking crime” or “illicit trafficking”, and your theory leads to the conclusion that simple possession equates with drug trafficking.

Edwin S. Kneedler:

–Well, the Petitioner has conceded, as I understand it… I heard Mr. Long, I think, concede… that possession offenses can constitute aggravated felonies under this provision, that there is the recidivist possession, there is the possession of the date-rape drug, there is possession of 5 grams or more of cocaine.

All of those are specified as being… of being felonies under the… under 940… or 844.

But, beyond that, it’s important to take into account that a lot of State statutes dealing with drugs do not… are not patterned directly after the Federal statute, and there’s no reason why Congress would have insisted that they do so in order for this statute to operate sensibly.

And one notable example, for instance, is, when it comes to possession of a substantial amount of drugs, that that certainly would create a strong implication that the defendant was engaged in trafficking activities, or intended to.

The Federal statute deals with that by making it a felony to possess with intent to distribute the drug.

A number of States don’t do that.

They, instead, have graduated possession offenses, based on the quantity of drugs that the defendant is possessing; that above a certain quantity of drugs, it would be a felony.

They’re getting at the same problem, but they’ve come at it in a different way.

Ruth Bader Ginsburg:

Then, in those cases, you can say the conduct would constitute a felony under the Federal statute; but here, if I recall correctly, the amount involved would not have qualified for possession with intent to distribute, under Federal law.

Edwin S. Kneedler:

Well, it would always be up to the jury to decide that.

Now, in Mr. Lopez’s case, he was… he was initially charged with a series of offenses that went beyond the aiding and abetting of possession that he ultimately pleaded guilty to, but, as he testified in his… in his immigration hearing, his aiding and abetting of possession was assisting someone in purchasing drugs, which was, itself, a trafficking element.

And so, this shows that the way the State crimes are defined or applied are often getting at what Federal law–

John Paul Stevens:

Yes.

We have a case in which we’re assuming, for our purposes, we just have possession.

I mean, I understand the facts of this case.

And I wanted to ask… I have two questions, Mr. Kneedler.

One of them… the second one, I’d ask that… you were going to mention three different points, one about conviction; you had two other points you didn’t get to.

I want to learn what those were.

But, before that, it seems to me that, when you put the whole statute… all the… all the different statutory provisions together, you really boil down and focus on 924(c)(2) and the words

“for purpose of this subsection, the term “drug-trafficking crime” means any felony punishable under the Controlled Substances Act. “

And if the word “Federal” had been inserted before the word “felony” in the statute, would that not make the statute perfectly clear?

Edwin S. Kneedler:

–It probably would, but I think it’s interesting that the version of 924(c) that was in effect prior to 1988 said exactly that.

It said “felony violation of Federal law”.

John Paul Stevens:

It was a question of–

Edwin S. Kneedler:

It was… it was explicit.

John Paul Stevens:

–whether the change was intended to be–

Edwin S. Kneedler:

Well, but–

John Paul Stevens:

–substantive–

Edwin S. Kneedler:

–Congress–

John Paul Stevens:

–or merely–

Edwin S. Kneedler:

–But–

John Paul Stevens:

–stylistic.

Edwin S. Kneedler:

–Congress did change it, in the 1988 Act, but it did it… and this is significant… it did it in connection with two changes in the immigration law.

One is the enactment of the definition of “aggravated felony”, which, as I have explained, the definition of “aggravated felony” looks to State law, in a number of respects, in terms of the severity of the offense or the punishment actually imposed.

That was one change.

The other change that was made in the 1988 Act was to amend Section 1326 with respect to illegal reentries, and it did that by enhancing the penalty for conviction of any felony other than an aggravated felony, and an aggravated felony.

And certainly the conviction of any felony includes State law offenses in this–

John Paul Stevens:

Just again, Mr. Kneedler… focusing again on that specific language, you’re saying, in effect, that that phrase means any State or Federal felony punishable under the Federal statutes.

Edwin S. Kneedler:

–It says… yes, it says “any felony”.

Edwin S. Kneedler:

And that is our… doing it… and what–

John Paul Stevens:

And is it ever true that a State felony is punishable under a Federal statute?

Edwin S. Kneedler:

–The conduct is–

John Paul Stevens:

Yes, I know, but–

Edwin S. Kneedler:

–punishable.

The conduct is punishable, not–

John Paul Stevens:

–but do you know of any instance where we’ve said a State felony is punishable under a Federal statute?

Edwin S. Kneedler:

–I think not… I think not used in that sense, but I think it’s important… it’s important to look at the language, as a whole.

It does not say “punishable as a felony under”–

John Paul Stevens:

But you do agree–

Edwin S. Kneedler:

–“under the Controlled”–

John Paul Stevens:

–that the key to the case is how we read that one sentence.

Edwin S. Kneedler:

–Well, no, I agree that the… I… in my view, the key to the case is in 1101(a)(43), because, if you look at the structure of 1101(a)(43)… and this gets to the question you… you said… you mentioned that I had three reasons.

One is that under the… under the INA, the conviction consequences turn on the conviction of an aggravated felony, and it only makes sense to look at the jurisdiction of conviction to determine the nature of the crime, whether it’s a felony.

Antonin Scalia:

Well, but you don’t… you don’t look to the jurisdiction of conviction.

Are you telling me you require a conviction?

You… I thought you told me you don’t require a conviction.

Edwin S. Kneedler:

No.

Under 924(c), you don’t.

But under the… under the… if you’re bringing a Federal prosecution under 924(c), the term “aggravated felony” has no role in that determination.

It is a… it is a separate Federal crime.

We’re talking about, here, the consequences of… the consequences of being an aggravated felon under 1101(a)(43) are, Where does the definition of “aggravated felony” apply?

It only applies under the INA if someone has been convicted of an aggravated felony.

You’re only… you’re only subject to deportation for aggravated felony if you’ve been convicted, you’re ineligible for cancellation or removal, you’re subject to sentence enhancement.

All those things follow on conviction.

And we think it only makes sense to look to the jurisdiction of conviction.

That is–

David H. Souter:

All right, Mr. Kneedler, assuming that… as I understand it, the answer you just gave, your second point, as well as the point that you and Justice Stevens were debating, turns, in your view, on a definition, or a reading, of the statute that would work this way: that if, under State law, the act were a felony, but, under Federal law, the action was merely a misdemeanor, it would still, for purposes of this definition, be an aggravated felony.

Edwin S. Kneedler:

–That’s correct.

David H. Souter:

That… isn’t that very strange, that Congress would have wanted a reading of the statute that would turn its definition of a “misdemeanor crime” into an aggravated felony for purposes of the immigration law?

Edwin S. Kneedler:

I don’t think so at all.

And for one… for one thing… as I’ve mentioned, the structure of the act, as a whole, of 1101(a)(43)… and there are numerous subsections… look to how the crime… what the authorized punishment was, or look to how the person was actually sentenced under State law, not under Federal law.

David H. Souter:

No, but I’m–

Edwin S. Kneedler:

And I–

David H. Souter:

–saying, if–

Edwin S. Kneedler:

–No… I–

David H. Souter:

–No, go ahead.

Edwin S. Kneedler:

–I also haven’t mentioned the explicit provision, that one of the other Justices mentioned earlier… I think, the Chief Justice… that the penultimate sentence of 1101(a)(43) says that something… a… an offense constitutes an aggravated felony, whether in violation of Federal or State laws.

David H. Souter:

Well–

Edwin S. Kneedler:

So–

David H. Souter:

–I know it says that, but that doesn’t necessarily take you any further than saying that if the words of the statute refer to something that could be a State law felony, under the… under the penultimate sentence, it will count.

It does not necessarily answer the question that we have, and that is whether a particular reference in the statute is a reference to a Federal felony or a State felony.

So, it has a… the penultimate sentence has work to do.

And, in fact, we can see the work being done in the… in the very definition of “drug trafficking”… but it doesn’t necessarily lead to the conclusion that you draw from it.

Edwin S. Kneedler:

–Well, we think… we think it is quite a… we think it’s a strong confirmation of the pattern in 1101(a)(43), that the statute looks to what happened in State Court, and the State punishment that was authorized there, and the express mention of that… or–

David H. Souter:

Even when–

Edwin S. Kneedler:

–requirement.

David H. Souter:

–the consequence, in effect, is to turn for… turn the gravity of the Federal misdemeanor into the gravity of–

Edwin S. Kneedler:

But the–

David H. Souter:

–a felony that–

Edwin S. Kneedler:

–the Federal Controlled–

David H. Souter:

–just happens to be a State felony.

Edwin S. Kneedler:

–The Federal Controlled Substances Act does not occupy the field of drug control in the country, any more than any other Federal crime occupies that field.

And–

David H. Souter:

No, I realize that.

But, if we’re asking,

“What is important in the mind of Congress, for purposes of the immigration law? “

one would suppose that the most obvious touchstone of importance is the way Federal law deals with it… i.e., in the case of a crime, whether Federal law calls it a felony or Federal law calls it a misdemeanor.

You know, in your reading, when Federal law calls it a misdemeanor, if State law calls it a felony, it becomes a Federal felony for the immigration law.

And that’s what seems to me odd.

Edwin S. Kneedler:

–Right.

And this is not the only place where that consequence can arise.

There are… there are cases involving “What’s a crime of violence”?

which is… which, under subparagraph (g), is another aggravated felony.

The crime of violence is defined in 18 U.S.C. Section 16, subsection (b) of that… this Court considered that statute in Leocal… requires that the offense be a felony which creates a serious risk of physical harm.

The courts have looked to the State law of conviction to determine whether something is a felony–

Antonin Scalia:

Mr. Kneedler, could–

David H. Souter:

Yes, but–

Edwin S. Kneedler:

–under that provision.

David H. Souter:

–May I just ask one–

Antonin Scalia:

–Sure.

David H. Souter:

–It’s one thing to turn to State law to get an answer where there is no other answer.

The problem here is that State law and Federal law are at odds in determining the gravity of the offense.

The Federal law, on my hypothesis, would say,

“It is minor; it’s just a misdemeanor. “

The State says,

“No, it is a felony. “

It seems to me very odd, given the tension between the State and Federal classifications, to say that, for Federal purposes, the State classification is going to trump the Federal classification; and that’s a different situation from the one you posit.

Edwin S. Kneedler:

Well, and… if I could just mention one other… on other example, under the theft… offense category in subsection… I think it’s (f)… where a theft offense is deemed to be an aggravated felony if a sentence of at least 1 year was imposed.

There are misdemeanor offenses there that… as a matter of Federal law, it can be a misdemeanor for certain types of theft offenses; and yet, they are covered as aggravated felonies.

And, again, that would–

Antonin Scalia:

Mr. Kneedler, could I ask you about your assertion that you

“look to the State of conviction? “

What do you mean by that?

For purposes of 1101.

Does that mean, if you’re convicted, in State court, of a misdemeanor… and even though that action would be a Federal felony, it’s not an aggravated felony?

Edwin S. Kneedler:

–That is our position, yes.

Because the requirement… the–

Antonin Scalia:

So, it’s sort of a double inconsistency.

Not only do you treat State… State actions that are… that are minimal… I’m sorry, where the State treats it more seriously than the Federal Government, not only do you follow the State, but, where the State treats it less leniently than the Federal Government, you also follow the State.

Edwin S. Kneedler:

–Well, and–

Antonin Scalia:

Is that right?

Edwin S. Kneedler:

–Yes.

And we… yes.

We think that’s–

Antonin Scalia:

So, you look to the State of conviction.

What–

Edwin S. Kneedler:

–that’s–

Antonin Scalia:

–That’s for purposes of the immigration law.

Edwin S. Kneedler:

–Of the immigration law.

And, again, we think that–

Antonin Scalia:

Okay.

Now, do you do the same for purposes of the felony enhancement provision?

Edwin S. Kneedler:

–924(c)?

No, you don’t, because–

Antonin Scalia:

You–

Edwin S. Kneedler:

–the aggravated-felony question has no… has no… the 924–

Antonin Scalia:

–Well, that seems to me–

Edwin S. Kneedler:

–itself.

Antonin Scalia:

–very strange.

You would look to the… you would look to the State law for purposes of the immigration section; but, for purposes of 924(c), what would you look to?

Either one.

Whichever–

Edwin S. Kneedler:

No, 924–

Antonin Scalia:

–whichever… for 924… whichever one would make it a felony.

Edwin S. Kneedler:

–No, under–

Antonin Scalia:

You lose.

Edwin S. Kneedler:

–under 924(c)(1), this Court… this Court, in the Gonzales case, said that it… that it has to be a Federal crime, but not because of the–

Antonin Scalia:

Yes.

Edwin S. Kneedler:

–definition in–

Antonin Scalia:

Right.

Edwin S. Kneedler:

–924(c)(2)–

Antonin Scalia:

All right.

Edwin S. Kneedler:

–but–

Antonin Scalia:

If it’s a felony under either one, for purposes of 924(c), you lose, right?

Edwin S. Kneedler:

–I don’t think I–

Antonin Scalia:

If the act is either a State felony or a Federal felony, you lose.

I mean, the defendant gets the enhanced sentence, right, under 924(c)?

Edwin S. Kneedler:

–No.

Antonin Scalia:

No?

Edwin S. Kneedler:

Under 924(c), the cases that have been brought have all been situations where it is a Federal offense.

But, because… not because of the language in 924(c)(2)–

Antonin Scalia:

Well–

Edwin S. Kneedler:

–but because of the… of the language–

Antonin Scalia:

–Listen.

Edwin S. Kneedler:

–in 924(c)(1).

Antonin Scalia:

Listen.

My question is a simple one.

If it’s… it seems to me, if it’s… what you’re saying is, if it is either a felony under Federal law or a felony under State law, you get the enhanced sentence under 924(c), isn’t that right?

Edwin S. Kneedler:

I… my understanding of the way 924(c)(1) has operated is that if it is a misdemeanor under Federal law, but maybe it would be a Federal felony, it would not be… it would not give rise to the enhancement, because it is not a–

Antonin Scalia:

I thought that’s–

Edwin S. Kneedler:

–it–

Antonin Scalia:

–what the whole argument is about, whether it has to be a felony under Federal law.

You’re telling me, if it’s a misdemeanor under Federal law, that you don’t get–

Edwin S. Kneedler:

–But not–

Antonin Scalia:

–the enhanced sentence?

Edwin S. Kneedler:

–but not under… not under 924(c)(2)–

Stephen G. Breyer:

But why not?

Edwin S. Kneedler:

–the definitional–

Antonin Scalia:

You’ve thoroughly confused me now.

Stephen G. Breyer:

But 924(c)(1) says that if you have a gun, and you have a drug-trafficking crime, book, 5 years.

Okay, now we go to two, what’s a “drugtrafficking crime”?

It means any felony punishable under the… under the Controlled Substances Act.

Now, in your definition, we first look to see whether simple possession is punishable under the… in Controlled Substances Act.

It sure is.

It’s punishable as a misdemeanor.

So, it meets that.

Under your definition, is it a felony?

Yup, it’s a felony in South Dakota.

Okay.

So, now we’ve got a prosecution, in Federal Court in South Dakota.

And, on your reading of the statute, that guy should get a bump-up of 5 years.

Edwin S. Kneedler:

–No, that is not our reading of the statute.

The–

Stephen G. Breyer:

Because?

Edwin S. Kneedler:

–The only thing that is incorporated into 1101(a)(43) is the definition in (c)(2)… not (c)(1), the definition of–

Stephen G. Breyer:

Yes.

Edwin S. Kneedler:

–of (c)(2), which says–

Stephen G. Breyer:

Yes.

Edwin S. Kneedler:

–“felony punishable under the Controlled”–

Stephen G. Breyer:

Right.

Edwin S. Kneedler:

–“Substances Act”.

Stephen G. Breyer:

Right.

Edwin S. Kneedler:

That is what gets plugged into–

Stephen G. Breyer:

That’s correct.

Edwin S. Kneedler:

–1101(a)–

Stephen G. Breyer:

Right.

Edwin S. Kneedler:

–(43).

Stephen G. Breyer:

Right.

Edwin S. Kneedler:

Along with all of the other provisions in 1101(a)(43), you look to State law, in the case of a State offense… the State of conviction, the jurisdiction–

Stephen G. Breyer:

Yes.

Edwin S. Kneedler:

–of conviction… to determine the nature of the crime.

Stephen G. Breyer:

But you still have to know whether that word, (2) means

“any felony punishable as a felony under the Controlled– “

Edwin S. Kneedler:

Right.

And–

Stephen G. Breyer:

–“Substances Act”.

Edwin S. Kneedler:

–And–

Stephen G. Breyer:

And there–

Edwin S. Kneedler:

–a number–

Stephen G. Breyer:

–Yeah.

You have to know the answer to that.

Edwin S. Kneedler:

–a number of Courts of Appeals that have looked at this in the sentencing context over the years have concluded that it… that the absence of that language is very significant, and the presence of the language that says “any felony” is also significant.

Antonin Scalia:

Never mind sentencing, let’s get back to the immigration.

If I understand what you’re now saying, if you’re convicted in State Court of action that is a Federal felony, but it’s just a State misdemeanor… right +/?

you look to the State of conviction, and it would be a misdemeanor, and the immigration provisions would not… would not take effect.

Is–

Edwin S. Kneedler:

Yes.

Antonin Scalia:

–that right?

Edwin S. Kneedler:

And that… and that… that’s not true–

Antonin Scalia:

That’s extraordinary.

Edwin S. Kneedler:

–No, but it’s… that’s not… only true under this provision of 1101(a)(43).

The other… the other provisions… (f) and (g) and (j) and (q) and (t) that I mentioned, that looked to the sentence that may be imposed under State law, or that was actually imposed… would, likewise, render someone in that situation who was convicted of only a misdemeanor in State Court… even though it might be a felony under Federal law, they would not be… they would not be convicted of an aggravated felony, because–

Ruth Bader Ginsburg:

Mr. Kneedler–

Edwin S. Kneedler:

–of the way Congress chose to write 1101(a)(43).

John Paul Stevens:

But is–

Ruth Bader Ginsburg:

–Do you–

John Paul Stevens:

–that a reasonable… let’s say the statute’s ambiguous, and you’ve convinced us there’s no constitutional requirement of uniformity.

But is it reasonable to assume that Congress would want the different consequences to depend on the State of conviction?

Edwin S. Kneedler:

I think it is.

Edwin S. Kneedler:

I mean, they’re–

John Paul Stevens:

Is there anything in the legislative history suggesting that?

Edwin S. Kneedler:

–I think… as I say, I think it’s on face of the statute.

Ruth Bader Ginsburg:

–Barrett suggests otherwise.

If what Congress was trying to do was to codify that practice of looking for an analogous crime under State law, that’s… that seems to me the… at least what Congress was trying to do.

Edwin S. Kneedler:

Well, that… the legislative history of the amendment in 1990 does not discuss the aspect of Barrett that went to the comparison to decide what… in what circumstances there would be an analogous Federal crime.

It was clear that it wanted to ratify the result that State crimes are covered.

But we think that that was evident from the 1988 amendments to… that both enacted the definition of 1988… and enhanced sentences–

Ruth Bader Ginsburg:

You–

Edwin S. Kneedler:

–under 1326, clearly on the… on… by reference to whether someone was convicted of a State felony, without any… without any general Federal minimum.

Ruth Bader Ginsburg:

–May I–

Edwin S. Kneedler:

What Congress–

Ruth Bader Ginsburg:

–May I just switch gears for a moment, because your time is almost up, and we… you haven’t addressed the mootness problem in Toledo-Flores.

Edwin S. Kneedler:

–In Toledo-Flores.

Ruth Bader Ginsburg:

Is the Second Circuit wrong in U.S. v. Hamdi?

Because it seems to me that U.S. v. Hamdi is on all fours with respect to mootness.

Edwin S. Kneedler:

Yes.

We think it is wrong, be… under this Court’s decision in Spencer versus Kemna and other cases, that, if the possible consequence turns on a discretionary judgment that may be made by someone else, that is too speculative to constitute a real live case or controversy.

And that’s what I understand Toledo-Flores to be arguing, is that if he applied for discretionary relief in the future, that it might… it might matter, because his sentence might be reduced slightly.

I should point out that in the District Court Toledo-Flores conceded that if he didn’t get an eight… level sentence enhancement, he would get a four-level sentence enhancement, because this is at least a felony, within the meaning of the adjacent provision of the guidelines.

That would result in a guideline range of 24 to 30 months.

He would then have gotten 24 months, under that guideline range, the very same thing that he got here.

And, under the guidelines at the time, a term of supervised release was mandatory.

And a 1-year term of supervised release was mandatory in those circumstances.

He would have gotten exactly the same term of supervised release if he had been… if he had gotten only the four… level enhancement, rather than the eight-level enhancement.

I also think that it is somewhat farfetched to think that, given the fact that Toledo-Flores had more than 12 illegal entries into the United States, and various State offenses, that the determination of whether the attorney general would actually grant discretionary relief would turn on a marginal difference in the sentence on that particular offense.

John G. Roberts, Jr.:

Thank you, Mr. Kneedler.

Mr. Long, you have 4 minutes remaining.

Robert A. Long, Jr.:

Thank you, Mr. Chief Justice.

In answer to Justice Breyer’s question, Mr. Kneedler said that a Federal misdemeanor is a drug… trafficking crime under Section 924(c) if a State punishes it as a felony.

Robert A. Long, Jr.:

“Well, the Federal Government never prosecutes Federal misdemeanors under Section 924(c). “

He said,

“The reason is because of 924(c)(1)(A). “

and the language there is, it has to be an offense for which the person may be prosecuted in a court of the United States.

But that language… a person may be prosecuted in a court of the United States for a misdemeanor.

So, the Government is making an argument that, to my knowledge, has never been accepted by any court, has not ever been advanced by the Government in a criminal context, and that would significantly expand Section 924(c) and numerous other criminal statutes that we cite in our brief that used the same definition of “drug-trafficking crime”.

The… Mr. Kneedler also said that the aggravated felony provisions in Section 101(a)(43) refer to State law, but I read them just the opposite.

There are two kinds.

There are 21 of them.

Many of them say,

“an offense described in 18 U.S. Code Section X.. “

I mean, that’s really what… we’re dealing with one of those here.

So, it clearly goes to Federal law to define the offense.

Now, if State law or foreign law also punishes that offense, then it’s an aggravated felony, but, clearly, Federal law is defining the offense.

There are other categories, such as murder and theft, that are defined, in general terms; but the Government’s position, as I understand it, is, again, you use a generic uniform definition.

You don’t pick any definition that the States may have.

The Court just granted–

John G. Roberts, Jr.:

Well, I thought… I thought you conceded that a State offense could constitute illicit trafficking–

Robert A. Long, Jr.:

–Well, yes–

John G. Roberts, Jr.:

–in a Controlled Substance–

Robert A. Long, Jr.:

–Yes, Mr. Chief Justice.

But, again, to be clear… and I think this is consistent with the Government’s position in other cases… ultimately, there will be some uniform Federal definition of what constitutes illicit trafficking.

It would be… some commercial element would probably be the definition the Court hasn’t decided.

States can define it more broadly.

But the actual definition… just as the definition of “burglary” or “theft”–

Samuel A. Alito, Jr.:

You think there’s a uniform Federal definition of a theft offense?

Robert A. Long, Jr.:

–Well, it’s… I mean, as… this… in the Taylor case, in burglary, the Court has a methodology for this.

You pick a sort of generic definition.

It may not… it may not come from a Federal statute; it could–

Samuel A. Alito, Jr.:

There’s… they’ll… there’s no variation in State offenses that would fall within that, a theft offense?

Robert A. Long, Jr.:

–Well, it’s… again, this is… the provision we’re dealing with is… looks to Federal law, the Controlled Substances Act and two other statutes.

My understanding of the Government’s position… and it’s consistent with this Court’s cases, in Taylor… is that, even when it’s a generic offense, you would… you would still have a uniform definition.

And that is certainly consistent with the principle of uniformity that applies both in criminal law and in immigration law.

I mean, if there’s any ambiguity, at the end of the day, ambiguities are supposed to be resolved in favor of uniformity, uniform Federal law… uniform Federal criminal law, and uniform immigration law.

Effectively, what the Government is arguing that… is that States can banish noncitizens, and can do so by enacting drug laws, deciding to make a simple possession offense a felony.

That’s a decision that a State would make, almost certainly, for reasons that have little or nothing to do with immigration, and it’s highly unlikely that Congress would have left that determination to States.

On uniformity, aggravated felonies is a condition for citizenship.

If you’re convicted of an aggravated felony, you may not become a U.S. citizen.

You are foreclosed from establishing good moral character.

So, in fact, citizenship is at stake here, and the Uniformity Clause is in play.

If there are no further questions, thank you.

John G. Roberts, Jr.:

–Thank you, Mr. Long.

The case is submitted.