U.S. v. Rivera-Sanchez: 9th Circuit Holds Marijuana Conviction Is Not "Aggravated Felony"

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

U.S. V. RIVERA-SANCHEZ: 9TH CIRCUIT HOLDS MARIJUANA CONVICTION IS NOT "AGGRAVATED FELONY"
Immigrants' Rights Update, Vol. 15, No. 3, May 10, 2001

In an important en banc ruling, the Ninth Circuit Court of Appeals has held that a conviction under a California anti-marijuana statute does not constitute conviction of an aggravated felony for the purposes of sentencing pursuant to United States Sentencing Guidelines (U.S.S.G.) section 2L1.2(b)(1)(A). Under that guideline, a district court that finds a person guilty under 8 U.S.C. section 1326 of illegally reentering the U.S. after having been deported must increase the defendant's "base offense level" by 16 levels if the defendant was deported after having been convicted of an aggravated felony.

The petitioner in the case, Javier Rivera-Sanchez, was arrested for entering the U.S. without inspection on Sept. 13, 1998, and he subsequently pled guilty to having reentered the U.S. illegally after having been deported. Rivera-Sanchez had a number of convictions on his record, the most critical of which was a 1986 conviction under California Health and Safety Code section 11360(a) (the anti-marijuana law), for which he had been sentenced to 3 years' probation and 36 days in jail. The district court treated this conviction as an aggravated felony pursuant to sentencing guideline 2L1.2(b)(1)(A) and increased Rivera-Sanchez's base offense level by 16. As a result, the district court sentenced him to 84 months in prison, followed by 3 years of supervised release. Rivera-Sanchez appealed the sentence.

Under 8 U.S.C. section 1101(a)(43)(B), an "aggravated felony" includes "illicit trafficking in [a] controlled substance," which includes any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.). The term "aggravated felony" applies to violations of both federal and state law.

The California law under which Rivera-Sanchez was convicted in 1986 provides: "Every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years." California Health and Safety Code § 11360(a).

In determining whether Rivera-Sanchez's 1986 conviction should be considered an aggravated felony for federal sentencing purposes, the Ninth Circuit used the analytical model laid out by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). According to the Ninth Circuit's decision, "Under Taylor, courts do not examine the conduct underlying the prior offense, but 'look only to the fact of conviction and the statutory definition of the prior offense.'" However, in a narrow range of cases, Taylor permits courts to take into account more than the mere fact that the defendant was convicted. When the statute under which the defendant was convicted allows for the punishment of both conduct that would constitute a crime of violence and conduct that would not, the Ninth Circuit has held that documentation or judicially noticeable facts may be taken into account if they can help to clearly establish that the defendant's sentence should or should not be enhanced based on the conviction. If the statute and the judicially noticeable facts would allow the defendant to be convicted of an offense that is not defined as a qualifying offense by the sentencing guidelines, the conviction does not qualify as one on which an enhanced sentence can be based.

Upon examining the California statute upon which the enhancement of Rivera-Sanchez's sentence was based, the Ninth Circuit noted that it is extremely broad and concluded that its basic thrust is to criminalize solicitation of the acts it enumerates. The Ninth Circuit has held previously that solicitation offenses are not aggravated felonies. Moreover, the Controlled Substances Act does not list solicitation as an act punishable under its provisions. In Coronado-Durazo v. INS, 123 F.3d 1322, 1325-26 (9th Cir. 1997), the court held that where a statute lists some generic offenses but omits others, the statute covers only the offenses expressly listed. Because California Health and Safety Code section 11360(a) criminalizes solicitation, "the full range of conduct encompassed by the statute does not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(B)," according to the court. "Therefore, Rivera-Sanchez's 1986 conviction facially does not qualify as an aggravated felony."

Since Rivera-Sanchez's 1986 conviction "does not qualify facially" as an offense upon which a sentence enhancement can be based, the next step under Taylor requires an analysis of whether other judicially noticeable facts in the record would prove that the conviction does qualify as such an offense. The court declined to conduct such an analysis and chose to vacate the sentence and remand it for further evaluation by the district court.

U.S. v. Rivera-Sanchez, No. 99-10275 (9th Cir. April 18, 2001).