- A recent Supreme Court decision – Mellouli v. Lynch, 135 S. Ct. 1980 (2015) – held a state drug conviction didn’t qualify as a controlled substance offense under immigration law because the state controlled substance schedules included substances not included in the federal controlled substance schedules.
- This is essentially the same holding reflected in a series of Ninth Circuit immigration cases starting with Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007) and including Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009) and S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010).
- This takes the Supreme Court at least partway toward the Ninth Circuit’s holding in United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012), which extended the Ninth Circuit immigration cases to hold that a California drug conviction doesn’t categorically qualify as a drug trafficking offense under the illegal reentry guideline.
NOW THE BLOG:
While I’m on the subject of recent Supreme Court cases (see last week’s post), I thought I’d touch on a case decided at the beginning of last month – Mellouli v. Lynch, 135 S. Ct. 1980 (2015). It’s an immigration case, but, as with many immigration cases nowadays, it has potential implications for our criminal practice.
Mellouli was another application of the categorical approach to an immigration statute. The statute in question was 8 U.S.C. § 1227(a)(2)(B), which makes an alien subject to removal if he “has been convicted of violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Mellouli, 135 S. Ct. at 1984. The alien in Mellouli had been convicted of possession of drug paraphernalia in Kansas state court. See id. at 1983. The controlled substances in the Kansas controlled substance schedules included a small number of substances not included in the federal controlled substance schedules, which the dissent characterized as “approximately three percent of the substances appearing on Kansas’ lists,” Mellouli, 135 S. Ct. at 1993 (Thomas, J., dissenting). The Supreme Court held that even this relatively small overbreadth in the Kansas “controlled substance” schedules made Kansas’ “controlled substance” convictions fail the categorical approach. Because “[t]he state law involved in Mellouli’s conviction . . . was not confined to federally controlled substances,” the state conviction failed to categorically qualify under 8 U.S.C. § 1227(a)(2)(B). Mellouli, 135 S. Ct. at 1988. The Court cited with approval to an old Bureau of Immigration Appeals decision – Matter of Paulus, 11 I. & N. Dec. 274 (1965) – in which the Bureau of Immigration Appeals held a conviction under a California drug statute failed to satisfy § 1227(a)(2)(B) because California included in its definition of “narcotics” a substance not included in the federal definition. See Mellouli, 135 S. Ct. at 1987-88.
Mellouli’s at least a half step toward the Ninth Circuit’s holding in United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012), which I discussed in a post several years ago. (See “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance” in the June 2012 link at the right.) Leal-Vega held a prior drug conviction didn’t qualify categorically as a “drug trafficking offense” under the sentencing guidelines – specifically, the illegal reentry guideline – because the California controlled substance schedules include several relatively rare controlled substances that aren’t included in the federal schedules. See id. at 1167. The Leal-Vega court based its holding on the holdings in several Ninth Circuit immigration cases that had held California drug convictions didn’t categorically qualify for immigration purposes under the very same statute interpreted by the Supreme Court in Mellouli – 8 U.S.C. § 1227(a)(2)(B). See Leal-Vega, 680 F.3d at 1164 (citing Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007); Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009); and S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010)).
Mellouli held essentially what the Ninth Circuit held in these cases cited in Leal-Vega. It’s therefore at least a half step toward the holding in Leal-Vega. It solidifies Leal-Vega for us and supports the making of similar arguments in other circuits. Cf. United States v. Gomez-Alvarez, 781 F.3d 787, 793-94 (5th Cir. 2015) (following Leal-Vega). So good luck out there.