Moncrieffe v. Holder

certiorari to the united states court of appeals for the ąfth circuit No. 11–702. Argued October 10, 2012—Decided April 23, 2013 Under the Immigration and Nationality Act (INA), a noncitizen convicted of an “aggravated felony” is not only depor t able, 8 U. S. C. § 1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled sub­ stance,” § 1101(a)(43)(B), which, as relevant here, includes the conviction of an offense that the Controlled Substances Act (CSA) makes punish­ able as a felony, i. e., by more than one year’s imprisonment, see 18

U. S. C. §§ 924(c)(2), 3559(a)(5). A conviction under state law “consti­

tutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549

Petitioner Moncrieffe, a Jamaican citizen here legally, was found by police to have 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute.

The Federal Government sought to deport him, reasoning that his con­ viction was an aggravated felony because possession of marijuana with intent to distribute is a CSA offense, 21 U. S. C. § 841(a), punishable by up to five years’ imprisonment, § 841(b)(1)(D). An Immigration Judge ordered Moncrieffe removed, and the Board of Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s petition for review, re­ jecting his reliance on § 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration, and holding that the felony provision, § 841(b)(1)(D), provides the default punishment for his offense.

Held: If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. Pp. 190–207. (a) Under the categorical approach generally employed to determine whether a state offense is comparable to an offense listed in the INA, see, e. g., Nijhawan v. Holder, 557 U. S. 29, 33–38, the noncitizen’s actual conduct is irrelevant. Instead “the state statute defining the crime of conviction” is examined to see whether it fits within the “generic” federal definition of a corresponding aggravated felony. Gonzales v.

Duenas-Alvarez, 549 U. S. 183, 186. The state offense is a categorical

Cite as: 569 U. S. 184 (2013) 185 Syllabus

match only if a conviction of that offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v. United States, 544 U. S. 13, 24 (plurality opinion). Because this Court exam­ ines what the state conviction necessarily involved and not the facts underlying the case, it presumes that the conviction “rested upon [noth­ ing] more than the least of th[e] acts” criminalized, before determining whether even those acts are encompassed by the generic federal offense.

Johnson v. United States, 559 U. S. 133, 137. Pp. 190–191. (b) The categorical approach applies here because “illicit trafficking in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. Thus, a state drug offense must meet two conditions: It must “necessarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that con­ duct. Possession of marijuana with intent to distribute is clearly a fed­ eral crime. The question is whether Georgia law necessarily proscribes conduct punishable as a felony under the CSA. Title 21 U. S. C. § 841(b)(1)(D) provides that, with certain exceptions, a violation of the marijuana distribution statute is punishable by “a term of imprison­ ment of not more than 5 years.” However, one of those exceptions, § 841(b)(4), provides that “any person who violates [the statute] by dis­ tributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, i. e., as a misdemeanant. These dovetailing provisions create two mutually exclusive categories of pun­ ishment for CSA marijuana distribution offenses: one a felony, the other not. The fact of a conviction under Georgia’s statute, standing alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Thus, the conviction did not “necessarily” involve facts that correspond to an offense punish­ able as a felony under the CSA. Pp. 192–195.

(c) The Government’s contrary arguments are unpersuasive. The Government contends that § 841(b)(4) is irrelevant because it is merely a mitigating sentencing factor, not an element of the offense. But that understanding is inconsistent with Carachuri-Rosendo v. Holder, 560

U. S. 563, which recognized that when Congress has chosen to define the

generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. The Government also asserts that any marijuana distribution conviction is presumptively a felony, but the CSA makes neither the felony nor the misdemeanor provision the default. The Government’s approach would lead to the absurd result that a conviction under a statute that punishes misde­ meanor conduct only, such as § 841(b)(4) itself, would nevertheless be a categorical aggravated felony.

Syllabus

The Government’s proposed remedy for this anomaly—that non- citizens be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration—is in­ consistent with both the INA’s text and the categorical approach.

The Government’s procedure would require the Nation’s overburdened immigration courts to conduct precisely the sort of post hoc investiga­ tion into the facts of predicate offenses long deemed undesirable, and would require uncounseled noncitizens to locate witnesses years after the fact.

Finally, the Government’s concerns about the consequences of this decision are exaggerated. Escaping aggravated felony treatment does not mean escaping deportation, because any marijuana distribution offense will still render a noncitizen deportable as a controlled sub­ stances offender. Having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, but the Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a more serious drug trafficker.

Pp. 195–206.

662 F. 3d 387, reversed and remanded.

Sotomayor, J., delivered the opinion of the Court, in which Roberts,

Thomas, J., post, p. 207, and Alito, J., post, p. 210, filed dissenting opinions.

Thomas C. Goldstein argued the cause for petitioner.

With him on the briefs were Kevin K. Russell, Amy Howe, Tejinder Singh, Pamela S. Karlan, Jeffrey L. Fisher, and Angel L. Arias.

Pratik A. Shah argued the cause for respondent. With him on the brief were Solicitor General Verrilli, Acting As­ sistant Attorney General Delery, Deputy Solicitor General Kneedler, Donald E. Keener, and W. Manning Evans.*

*Briefs of amici curiae urging reversal were filed for the Center on the Administration of Criminal Law, New York University School of Law, by Wayne L. Stoner, Anna E. Lumelsky, and Rachel E. Barkow; for Human Rights First by Linda T. Coberly and Gene C. Schaerr; for the National Immigrant Justice Center et al. by William Lynch Schaller, Angela Vigil, and Charles Roth; and for Muneer I. Ahmad et al. by Alina Das.

Cite as: 569 U. S. 184 (2013) 187 Opinion of the Court Justice Sotomayor delivered the opinion of the Court.

The Immigration and Nationality Act (INA), 66 Stat. 163, 8 U. S. C. § 1101 et seq., provides that a noncitizen who has been convicted of an “aggravated felony” may be deported from this country. The INA also prohibits the Attorney General from granting discretionary relief from removal to an aggravated felon, no matter how compelling his case.

Among the crimes that are classified as aggravated felonies, and thus lead to these harsh consequences, are illicit drug trafficking offenses. We must decide whether this category includes a state criminal statute that extends to the social sharing of a small amount of marijuana. We hold it does not.

The INA allows the Government to deport various classes of noncitizens, such as those who overstay their visas, and those who are convicted of certain crimes while in the United States, including drug offenses. § 1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he may ask the Attorney General for certain forms of discretionary relief from removal, like asylum (if he has a well-founded fear of persecution in his home country) and cancellation of removal (if, among other things, he has been lawfully present in the United States for a number of years). §§ 1158, 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as “aggravated felon­ ies,” then he is not only deportable, § 1227(a)(2)(A)(iii), but also ineligible for these discretionary forms of relief. See §§ 1158(b)(2)(A)(ii), (b)(2)(B)(i); §§ 1229b(a)(3), (b)(1)(C).1

1

In addition to asylum, a noncitizen who fears persecution may seek withholding of removal, 8 U. S. C. § 1231(b)(3)(A), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or De­ grading Treatment or Punishment (CAT), Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 114; 8 CFR § 1208.17(a) (2012).

These forms of relief require the noncitizen to show a greater likelihood

Opinion of the Court

The INA defines “aggravated felony” to include a host of offenses. § 1101(a)(43). Among them is “illicit traffick­ ing in a controlled substance.” § 1101(a)(43)(B). This gen­ eral term is not defined, but the INA states that it “includ[es] a drug trafficking crime (as defined in section 924(c) of title 18).” Ibid. In turn, 18 U. S. C. § 924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act,” or two other statutes not rele­ vant here. The chain of definitions ends with § 3559(a)(5), which provides that a “felony” is an offense for which the “maximum term of imprisonment authorized” is “more than one year.” The upshot is that a noncitizen’s conviction of an offense that the Controlled Substances Act (CSA) makes punishable by more than one year’s imprisonment will be counted as an “aggravated felony” for immigration purposes. A conviction under either state or federal law may qualify, but a “state offense constitutes a ‘felony punishable under the [CSA]’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales, 549 U. S. 47, 60 (2006).

Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally in 1984, when he was three.

During a 2007 traffic stop, police found 1.3 grams of mari­ juana in his car. This is the equivalent of about two or three marijuana cigarettes. Moncrieffe pleaded guilty to posses­ sion of marijuana with intent to distribute, a violation of Ga.

Code Ann. § 16–13–30( j)(1) (2007). Under a Georgia stat­ ute providing more lenient treatment to first-time offenders,

of persecution or torture at home than is necessary for asylum, but the Attorney General has no discretion to deny relief to a noncitizen who establishes his eligibility. A conviction of an aggravated felony has no effect on CAT eligibility, but will render a noncitizen ineligible for with­ holding of removal if he “has been sentenced to an aggregate term of imprisonment of at least 5 years” for any aggravated felonies. 8 U. S. C. § 1231(b)(3)(B).

Cite as: 569 U. S. 184 (2013) 189 Opinion of the Court

§ 42–8–60(a) (1997), the trial court withheld entering a judg­ ment of conviction or imposing any term of imprisonment, and instead required that Moncrieffe complete five years of probation, after which his charge will be expunged alto­ gether.2 App. to Brief for Petitioner 11–15.

Alleging that this Georgia conviction constituted an aggra­ vated felony, the Federal Government sought to deport Moncrieffe. The Government reasoned that possession of marijuana with intent to distribute is an offense under the CSA, 21 U. S. C. § 841(a), punishable by up to five years’ im­ prisonment, § 841(b)(1)(D), and thus an aggravated felony.

An Immigration Judge agreed and ordered Moncrieffe removed. App. to Pet. for Cert. 14a–18a. The Board of Im­ migration Appeals (BIA) affirmed that conclusion on appeal.

Id., at 10a–13a.

The Court of Appeals denied Moncrieffe’s petition for re­ view. The court re jected Moncrieffe’s reliance upon § 841(b)(4), a provision that, in effect, makes marijuana dis­ tribution punishable only as a misdemeanor if the offense involves a small amount of marijuana for no remuneration.

It held that in a federal criminal prosecution, “the default sentencing range for a marijuana distribution offense is the CSA’s felony provision, § 841(b)(1)(D), rather than the misde­ meanor provision.” 662 F. 3d 387, 392 (CA5 2011). Because Moncrieffe’s Georgia offense penalized possession of mari­ juana with intent to distribute, the court concluded that it was “equivalent to a federal felony.” Ibid.

We granted certiorari, 566 U. S. 920 (2012), to resolve a conflict among the Courts of Appeals with respect to whether a conviction under a statute that criminalizes con­ duct described by both § 841’s felony provision and its mis­ demeanor provision, such as a statute that punishes all

2

The parties agree that this resolution of Moncrieffe’s Georgia case is nevertheless a “conviction” as the INA defines that term, 8 U. S. C. § 1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5, n. 2.

Opinion of the Court

marijuana distribution without regard to the amount or re­ muneration, is a conviction for an offense that “proscribes conduct punishable as a felony under” the CSA.3 Lopez, 549

U. S., at 60. We now reverse.

When the Government alleges that a state conviction qual­ ifies as an “aggravated felony” under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA.

See, e. g., Nijhawan v. Holder, 557 U. S. 29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185–187 (2007).

Under this approach we look “not to the facts of the particu­ lar prior case,” but instead to whether “the state statute defining the crime of conviction” categorically fits within the “generic” federal definition of a corresponding aggravated felony. Id., at 186 (citing Taylor v. United States, 495 U. S.

575, 599–600 (1990)). By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a con­ viction of the state offense “ ‘necessarily’ involved . . . facts equating to [the] generic [federal offense].” Shepard v.

United States, 544 U. S. 13, 24 (2005) (plurality opinion).

Whether the noncitizen’s actual conduct involved such facts “is quite irrelevant.” United States ex rel. Guarino v. Uhl, 107 F. 2d 399, 400 (CA2 1939) (L. Hand, J.).

Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume

3

Compare 662 F. 3d 387 (CA5 2011) (case below), Garcia v. Holder, 638

F. 3d 511 (CA6 2011) (is an aggravated felony), and Julce v. Mukasey, 530

F. 3d 30 (CA1 2008) (same), with Martinez v. Mukasey, 551 F. 3d 113 (CA2

2008) (is not an aggravated felony), and Wilson v. Ashcroft, 350 F. 3d 377 (CA3 2003) (same).

Cite as: 569 U. S. 184 (2013) 191 Opinion of the Court

that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized, and then determine whether even those acts are encompassed by the generic federal offense. Johnson v. United States, 559 U. S. 133, 137 (2010); see Guarino, 107 F. 2d, at 400. But this rule is not without qualification. First, our cases have addressed state statutes that contain several different crimes, each described sepa­ rately, and we have held that a court may determine which particular offense the noncitizen was convicted of by examin­ ing the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or “ ‘some comparable judicial record’ of the factual basis for the plea.” Nijhawan, 557 U. S., at 35 (quoting Shepard, 544

U. S., at 26). Second, our focus on the minimum conduct

criminalized by the state statute is not an invitation to apply “legal imagination” to the state offense; there must be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Duenas-Alvarez, 549

U. S., at 193.

This categorical approach has a long pedigree in our Na­ tion’s immigration law. See Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669, 1688–1702, 1749–1752 (2011) (tracing judicial decisions back to 1913).

The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U. S. C. § 1227(a)(2)(A)(iii), not what acts he committed. “[C]onviction” is “the relevant statu­ tory hook.” 4 Carachuri-Rosendo v. Holder, 560 U. S. 563, 580 (2010); see United States ex rel. Mylius v. Uhl, 210 F. 860,

4

Carachuri-Rosendo construed a different provision of the INA that concerns cancellation of removal, which also requires determining whether the noncitizen has been “convicted of any aggravated felony.” 8 U. S. C. § 1229b(a)(3) (emphasis added). Our analysis is the same in both contexts.

Opinion of the Court

The aggravated felony at issue here, “illicit trafficking in a controlled substance,” is a “generic crim[e].” Nijhawan, 557 U. S., at 37. So the categorical approach applies. Ibid.

As we have explained, supra, at 188, this aggravated felony encompasses all state offenses that “proscrib[e] conduct punishable as a felony under [the CSA],” Lopez, 549 U. S., at

60. In other words, to satisfy the categorical approach, a

state drug offense must meet two conditions: It must “neces­ sarily” proscribe conduct that is an offense under the CSA, and the CSA must “necessarily” prescribe felony punishment for that conduct.

Moncrieffe was convicted under a Georgia statute that makes it a crime to “possess, have under [one’s] control, man­ ufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” Ga.

Code Ann. § 16–13–30( j)(1). We know from his plea agree­ ment that Moncrieffe was convicted of the last of these offenses. App. to Brief for Petitioner 11; Shepard, 544 U. S., at 26. We therefore must determine whether possession of marijuana with intent to distribute is “necessarily” conduct punishable as a felony under the CSA.

We begin with the relevant conduct criminalized by the CSA. There is no question that it is a federal crime to “pos­ sess with intent to . . . distribute . . . a controlled substance,” 21 U. S. C. § 841(a)(1), one of which is marijuana, § 812(c).5 So far, the state and federal provisions correspond. But this is not enough, because the generically defined federal crime is “any felony punishable under the Controlled Substances Act,” 18 U. S. C. § 924(c)(2), not just any “offense under the

5

“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . . . .”

Cite as: 569 U. S. 184 (2013) 193 Opinion of the Court

CSA.” Thus we must look to what punishment the CSA imposes for this offense.

Section 841 is divided into two subsections that are rele­ vant here: (a), titled “Unlawful acts,” which includes the of­ fense just described, and (b), titled “Penalties.” Subsection (b) tells us how “any person who violates subsection (a)” shall be punished, depending on the circumstances of his crime (e. g., the type and quantity of controlled substance involved, whether it is a repeat offense).6 Subsection (b)(1)(D) pro­ vides that if a person commits a violation of subsection (a) involving “less than 50 kilograms of marihuana,” then “such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years,” i. e., as a felon. But one of the exceptions is important here. Paragraph (4) provides: “Not­ withstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as” a simple drug possessor, 21 U. S. C. § 844, which

6

In pertinent part, §§ 841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V)

“Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sen­

. . . . . “[(1)](D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. . . . . . . . . “(4) Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of title 18.”

Opinion of the Court

for our purposes means as a misdemeanant.7 These dove­ tailing provisions create two mutually exclusive categories of punishment for CSA marijuana distribution offenses: one a felony, and one not. The only way to know whether a mar­ ijuana distribution offense is “punishable as a felony” under the CSA, Lopez, 549 U. S., at 60, is to know whether the conditions described in paragraph (4) are present or absent. A conviction under the same Georgia statute for “sell[ing]” marijuana, for example, would seem to establish remunera­ tion. The presence of remuneration would mean that para­ graph (4) is not implicated, and thus that the conviction is necessarily for conduct punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a con­ viction for possession with intent to distribute marijuana, standing alone, does not reveal whether either remuneration or more than a small amount of marijuana was involved. It is possible neither was; we know that Georgia prosecutes this offense when a defendant possesses only a small amount of marijuana, see, e. g., Taylor v. State, 260 Ga. App. 890, 581

S. E. 2d 386, 388 (2003) (6.6 grams), and that “distribution”

does not require remuneration, see, e. g., Hadden v. State, 181 Ga. App. 628, 628–629, 353 S. E. 2d 532, 533–534 (1987).

So Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. Ambiguity on this point means that the conviction did not “necessarily” involve

7

Although paragraph (4) speaks only of “distributing” marijuana, the parties agree that it also applies to “the more inchoate offense of posses­ sion with intent to distribute that drug.” Matter of Castro Rodriguez, 25

I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for Petitioner 6, n. 2; Brief

for Respondent 8, n. 5.

The CSA does not define “small amount.” The BIA has suggested that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25 I. & N.

Dec., at 703, noting that the INA exempts from deportable controlled sub­ stances offenses “a single offense involving possession for one’s own use of 30 grams or less of marijuana,” 8 U. S. C. § 1227(a)(2)(B)(i). The mean­ ing of “small amount” is not at issue in this case, so we need not, and do not, define the term.

Cite as: 569 U. S. 184 (2013) 195 Opinion of the Court

facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Mon­ crieffe was not convicted of an aggravated felony.

The Government advances a different approach that leads to a different result. In its view, § 841(b)(4)’s misdemeanor provision is irrelevant to the categorical analysis because paragraph (4) is merely a “mitigating exception” to the CSA offense, not one of the “elements” of the offense. Brief for Respondent 12. And because possession with intent to dis­ tribute marijuana is “presumptive[ly]” a felony under the CSA, the Government asserts, any state offense with the same elements is presumptively an aggravated felony. Id., at 37. These two contentions are related, and we reject both of them.

First, the Government reads our cases to hold that the categorical approach is concerned only with the “elements” of an offense, so § 841(b)(4) “is not relevant” to the categori­ cal analysis. Id., at 20. It is enough to satisfy the categori­ cal inquiry, the Government suggests, that the “elements” of Moncrieffe’s Georgia offense are the same as those of the CSA offense: (1) possession (2) of marijuana (a controlled substance), (3) with intent to distribute it. But that under­ standing is inconsistent with Carachuri-Rosendo, our only decision to address both “elements” and “sentencing factors.” There we recognized that when Congress has chosen to de­ fine the generic federal offense by reference to punishment, it may be necessary to take account of federal sentencing factors too. See 560 U. S., at 567–568. In that case the rel­ evant CSA offense was simple possession, which “becomes a ‘felony punishable under the [CSA]’ only because the sen­ tencing factor of recidivism authorizes additional punishment beyond one year, the criterion for a felony.” Id., at 583 (Scalia, J., concurring in judgment). We therefore called

Opinion of the Court

the generic federal offense “recidivist simple posses­ sion,” even though such a crime is not actually “a separate offense” under the CSA, but rather an “ ‘amalgam’ ” of of­ fense elements and sentencing factors. Id., at 567, and n. 3, 572 (majority opinion).

In other words, not only must the state offense of convic­ tion meet the “elements” of the generic federal offense de­ fined by the INA, but the CSA must punish that offense as a felony. Here, the facts giving rise to the CSA offense es­ tablish a crime that may be either a felony or a misdemeanor, depending upon the presence or absence of certain factors that are not themselves elements of the crime. And so to qualify as an aggravated felony, a conviction for the predi­ cate offense must necessarily establish those factors as well.

The Government attempts to distinguish Carachur i- Rosendo on the ground that the sentencing factor there was a “narrow” aggravating exception that turned a misde­ meanor into a felony, whereas here § 841(b)(4) is a narrow mitigation exception that turns a felony into a misdemeanor.

Brief for Respondent 40–43. This argument hinges upon the Government’s second assertion: that any marijuana dis­ tribution conviction is “presumptively” a felony. But that is simply incorrect, and the Government’s argument collapses as a result. Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in para­ graph (4) attach: Section 841(b)(1)(D) makes the crime pun­ ishable by five years’ imprisonment “except as provided” in paragraph (4), and § 841(b)(4) makes it punishable as a misde­ meanor “[n]otwithstanding paragraph (1)(D)” when only “a small amount of marihuana for no remuneration” is involved.

(Emphasis added.) The CSA’s text makes neither provision the default. Rather, each is drafted to be exclusive of the other.

Like the BIA and the Fifth Circuit, the Government be­ lieves the felony provision to be the default because, in prac­ tice, that is how federal criminal prosecutions for marijuana

Cite as: 569 U. S. 184 (2013) 197 Opinion of the Court

distribution operate. See 662 F. 3d, at 391–392; Matter of Aruna, 24 I. & N. Dec. 452, 456–457 (2008); Brief for Re­ spondent 18–23. It is true that every Court of Appeals to have considered the question has held that a defendant is eligible for a 5-year sentence under § 841(b)(1)(D) if the Gov­ ernment proves he possessed marijuana with the intent to distribute it, and that the Government need not negate the § 841(b)(4) factors in each case. See, e. g., United States

v. Outen, 286 F. 3d 622, 636–639 (CA2 2002) (describing

§ 841(b)(4) as a “mitigating exception”); United States v.

Hamlin, 319 F. 3d 666, 670–671 (CA4 2003) (collecting cases).

Instead, the burden is on the defendant to show that he qualifies for the lesser sentence under § 841(b)(4). Cf. id., at 671.

We cannot discount § 841’s text, however, which creates no default punishment, in favor of the procedural overlay or burdens of proof that would apply in a hypothetical federal criminal prosecution. In Carachuri-Rosendo, we rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ” which exam­ ined whether conduct “ ‘could have been punished as a felony’ ‘had [it] been prosecuted in federal court.’ ” 560 U. S., at 572, 573.8 The outcome in a hypothetical prosecution is not the relevant inquiry. Rather, our “more focused, categorical inquiry” is whether the record of conviction of the predicate

8

Justice Alito states that the statute “obviously” requires examina­ tion of whether “conduct associated with the state offense . . . would have supported a qualifying conviction under the federal CSA.” Post, at 212 (dissenting opinion) (emphasis added); see also post, at 217. But this echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in the text, our opinion explicitly rejected such reasoning based on conditional perfect formulations. See also, e. g., Carachuri-Rosendo, 560 U. S., at 580 (criticiz­ ing approach that “focuses on facts known to the immigration court that could have but did not serve as the basis for the state conviction and pun­ ishment” (emphasis altered)). Instead, as we have explained, supra, at 196, our holding depended upon the fact that Carachuri-Rosendo’s convic­ tion did not establish the fact necessary to distinguish between misde­ meanor and felony punishment under the CSA. The same is true here.

Opinion of the Court

offense necessarily establishes conduct that the CSA, on its own terms, makes punishable as a felony. Id., at 580.

The analogy to a federal prosecution is misplaced for an­ other reason. The Court of Appeals cases the Government cites distinguished between elements and sentencing factors to determine which facts must be proved to a jury, in light of the Sixth Amendment concerns addressed in Apprendi v.

New Jersey, 530 U. S. 466 (2000). The courts considered which “provision . . . states a complete crime upon the fewest facts,” Outen, 286 F. 3d, at 638, which was significant after Apprendi to identify what a jury had to find before a defend­ ant could receive § 841(b)(1)(D)’s maximum 5-year sentence.

But those concerns do not apply in this context. Here we consider a “generic” federal offense in the abstract, not an actual federal offense being prosecuted before a jury. Our concern is only which facts the CSA relies upon to distin­ guish between felonies and misdemeanors, not which facts must be found by a jury as opposed to a judge, nor who has the burden of proving which facts in a federal prosecution.9 Because of these differences, we made clear in Carachuri- Rosendo that, for purposes of the INA, a generic federal of­ fense may be defined by reference to both “ ‘ “elements” in the traditional sense’ ” and sentencing factors. 560 U. S., at 567–568, n. 3, 572; see also id., at 584 (opinion of Scalia, J.) (describing the generic federal offense there as “the [CSA] felony of possession-plus-recidivism”). Indeed, the distinc­ tion between “elements” and “sentencing factors” did not exist when Congress added illicit drug trafficking to the list of aggravated felonies, Anti-Drug Abuse Act of 1988, 102

9

The Government also cites 21 U. S. C. § 885(a)(1), which provides that the Government need not “negative any exemption or exception set forth” in the CSA, and instead “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.” Brief for Respondent 21. Even assuming § 841(b)(4) is such an “exception,” § 885(a)(1) applies, by its own terms, only to “any trial, hearing, or other proceeding under” the CSA itself, not to the rather different proceedings under the INA.

Cite as: 569 U. S. 184 (2013) 199 Opinion of the Court

Stat. 4469–4470, and most courts at the time understood both § 841(b)(1)(D) and § 841(b)(4) to contain sentencing factors that draw the line between a felony and a misdemeanor.

See, e. g., United States v. Campuzano, 905 F. 2d 677, 679 (CA2 1990). Carachuri-Rosendo controls here.

Finally, there is a more fundamental flaw in the Govern­ ment’s approach: It would render even an undisputed misde­ meanor an aggravated felony. This is “just what the Eng­ lish language tells us not to expect,” and that leaves us “very wary of the Government’s position.” Lopez, 549 U. S., at 54.

Consider a conviction under a New York statute that pro­ vides: “A person is guilty of criminal sale of marihuana in the fifth degree when he knowingly and unlawfully sells, with­ out consideration, [marihuana] of an aggregate weight of two grams or less; or one cigarette containing marihuana.”

N. Y. Penal Law Ann. § 221.35 (West 2008) (emphasis added).

This statute criminalizes only the distribution of a small amount of marijuana for no remuneration, and so all convic­ tions under the statute would fit within the CSA misde­ meanor provision, § 841(b)(4). But the Government would categorically deem a conviction under this statute to be an aggravated felony, because the statute contains the corre­ sponding “elements” of (1) distributing (2) marijuana, and the Government believes all marijuana distribution offenses are punishable as felonies.

The same anomaly would result in the case of a noncitizen convicted of a misdemeanor in federal court under §§ 841(a) and (b)(4) directly. Even in that case, under the Govern­ ment’s logic, we would need to treat the federal misdemeanor conviction as an aggravated felony, because the convic­ tion establishes elements of an offense that is presump­ tively a felony. This cannot be. “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors,” only to have courts presume felony treatment and ignore the very factors that distinguish felonies from misdemeanors. Lopez, 549 U. S., at 58.

Opinion of the Court

Recognizing that its approach leads to consequences Con­ gress could not have intended, the Government hedges its argument by proposing a remedy: Noncitizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution con­ victions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing. Brief for Respondent 35–39. This is the procedure adopted by the BIA in Matter of Castro Rodri­ guez, 25 I. & N. Dec. 698, 702 (2012), and endorsed by Jus­ tice Alito’s dissent, post, at 220.

This solution is entirely inconsistent with both the INA’s text and the categorical approach. As noted, the relevant INA provisions ask what the noncitizen was “convicted of,” not what he did, and the inquiry in immigration proceed­ ings is limited accordingly. 8 U. S. C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3); see Carachuri-Rosendo, 560 U. S., at 576. The Government cites no statutory authority for such case- specific factfinding in immigration court, and none is appar­ ent in the INA. Indeed, the Government’s main categori­ cal argument would seem to preclude this inquiry: If the Government were correct that “the fact of a marijuana- distribution conviction alone constitutes a CSA felony,” Brief for Respondent 37, then all marijuana distribution con­ victions would categorically be convictions of the drug traf­ ficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the Government’s follow-on factfinding procedure. The Govern­ ment cannot have it both ways.

Moreover, the procedure the Government envisions would require precisely the sort of post hoc investigation into the facts of predicate offenses that we have long deemed undesir­

It promotes judicial and administrative efficiency by pre­ cluding the relitigation of past convictions in minitrials con­

Cite as: 569 U. S. 184 (2013) 201 Opinion of the Court ducted long after the fact. Chambers v. United States, 555

U. S. 122, 125 (2009); see also Mylius, 210 F., at 862–863.

Yet the Government’s approach would have our Nation’s overburdened immigration courts entertain and weigh testi­ mony from, for example, the friend of a noncitizen who may have shared a marijuana cigarette with him at a party, or the local police officer who recalls to the contrary that cash traded hands. And, as a result, two noncitizens, each “con­ victed of ” the same offense, might obtain different aggra­ vated felony determinations depending on what evidence remains available or how it is perceived by an individual im­ migration judge. The categorical approach was designed to avoid this “potential unfairness.” Taylor, 495 U. S., at 601; see also Mylius, 210 F., at 863.

Furthermore, the minitrials the Government proposes would be possible only if the noncitizen could locate wit­ nesses years after the fact, notwithstanding that during removal proceedings noncitizens are not guaranteed legal representation and are often subject to mandatory detention, § 1226(c)(1)(B), where they have little ability to collect evi­ dence. See Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3, 5–10 (2008); Brief for National Immigrant Justice Center et al. as Amici Curiae 5–18; Brief for Immigration Law Professors as Amici Curiae 27–32. A noncitizen in removal proceedings is not at all similarly situated to a defendant in a federal criminal prosecution. The Government’s sug­ gestion that the CSA’s procedures could readily be repli­ cated in immigration proceedings is therefore misplaced.

Cf. Carachuri-Rosendo, 560 U. S., at 579 (rejecting the Gov­ ernment’s argument that procedures governing determina­ tion of the recidivism sentencing factor could “be satisfied during the immigration proceeding”).

The Government defends its proposed immigration court proceedings as “a subsequent step outside the categorical approach in light of Section 841(b)(4)’s ‘circumstance-specific’

Opinion of the Court

nature.” Brief for Respondent 37. This argument rests upon Nijhawan, in which we considered another aggravated felony, “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” 8 U. S. C. § 1101(a)(43)(M)(i). We held that the $10,000 threshold was not to be applied categorically as a required component of a generic offense, but instead called for a “circumstance- specific approach” that allows for an examination, in im­ migration court, of the “particular circumstances in which an offender committed the crime on a particular occasion.” Nijhawan, 557 U. S., at 38–40. The Government suggests the § 841(b)(4) factors are like the monetary threshold, and thus similarly amenable to a circumstance-specific inquiry.

We explained in Nijhawan, however, that unlike the provi­ sion there, “illicit trafficking in a controlled substance” is a “generic crim[e]” to which the categorical approach applies, not a circumstance-specific provision. Id., at 37; see also Carachuri-Rosendo, 560 U. S., at 576–578, n. 11. That dis­ tinction is evident in the structure of the INA. The mone­ tary threshold is a limitation, written into the INA itself, on the scope of the aggravated felony for fraud. And the monetary threshold is set off by the words “in which,” which calls for a circumstance-specific examination of “the conduct involved ‘in’ the commission of the offense of conviction.” Nijhawan, 557 U. S., at 39. Locating this exception in the INA proper suggests an intent to have the relevant facts found in immigration proceedings. But where, as here, the INA incorporates other criminal statutes wholesale, we have held it “must refer to generic crimes,” to which the categori­ cal approach applies. Id., at 37.

Finally, the Government suggests that the immigration court’s task would not be so daunting in some cases, such as those in which a noncitizen was convicted under the New York statute previously discussed or convicted directly under § 841(b)(4). True, in those cases, the record of convic­ tion might reveal on its face that the predicate offense was

Cite as: 569 U. S. 184 (2013) 203 Opinion of the Court

punishable only as a misdemeanor. But most States do not have stand-alone offenses for the social sharing of marijuana, so minitrials concerning convictions from the other States, such as Georgia, would be inevitable.10 The Government suggests that even in these other States, the record of con­ viction may often address the § 841(b)(4) factors, because noncitizens “will be advised of the immigration consequences of a conviction,” as defense counsel is required to do under Padilla v. Kentucky, 559 U. S. 356 (2010), and as a result counsel can build an appropriate record when the facts are fresh. Brief for Respondent 38. Even assuming defense counsel “will” do something simply because it is required of effective counsel (an assumption experience does not always bear out), this argument is unavailing because there is no reason to believe that state courts will regularly or uni­ formly admit evidence going to facts, such as remuneration, that are irrelevant to the offense charged.

In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the cate­ gorical approach, the Government proposes a solution that largely undermines the categorical approach. That the only cure is worse than the disease suggests the Government is simply wrong.

The Government fears the consequences of our decision, but its concerns are exaggerated. The Government ob­

10

In addition to New York, it appears that 13 other States have separate offenses for § 841(b)(4) conduct. See Cal. Health & Safety Code Ann. § 11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. § 18–18–406(5) (2012); Fla. Stat. § 893.13(3) (2010); Ill. Comp. Stat., ch. 720, §§ 550/3, 550/4, 550/6 (West 2010); Iowa Code § 124.410 (2009); Minn. Stat. § 152.027(4)(a) (2010);

N. M. Stat. Ann. § 30–31–22(E) (Supp. 2011); Ohio Rev. Code Ann.

§ 2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore. Rev. Stat. § 475.860(3) (2011); Pa. Stat. Ann., Tit. 35, § 780–113(a)(31) (Purdon Supp. 2012); S. D.

Codified Laws § 22–42–7 (Supp. 2012); Tex. Health & Safety Code Ann. § 481.120(b)(1) (West 2010); W. Va. Code Ann. § 60A–4–402(c) (Lexis 2010).

Opinion of the Court

serves that, like Georgia, about half the States criminalize marijuana distribution through statutes that do not require remuneration or any minimum quantity of marijuana. Id., at 26–28. As a result, the Government contends, noncitizens convicted of marijuana distribution offenses in those States will avoid “aggravated felony” determinations, purely be­ cause their convictions do not resolve whether their offenses involved federal felony conduct or misdemeanor conduct, even though many (if not most) prosecutions involve either remuneration or larger amounts of marijuana (or both).

Escaping aggravated felony treatment does not mean es­ caping deportation, though. It means only avoiding manda­ tory removal. See Carachuri-Rosendo, 560 U. S., at 581.

Any marijuana distribution offense, even a misdemeanor, will still render a noncitizen deportable as a controlled substances offender. 8 U. S. C. § 1227(a)(2)(B)(i). At that point, having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligi­ bility criteria. §§ 1158(b), 1229b(a)(1)–(2). But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” post, at 210 (opinion of Alito, J.), just as he may deny relief if he concludes the negative equities out­ weigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on polic­ ing our Nation’s borders, it is a limited one.” Carachuri- Rosendo, 560 U. S., at 581.

In any event, serious drug traffickers may be adjudicated aggravated felons regardless, because they will likely be con­ victed under greater “trafficking” offenses that necessarily establish that more than a small amount of marijuana was involved. See, e. g., Ga. Code Ann. § 16–13–31(c)(1) (Supp.

Cite as: 569 U. S. 184 (2013) 205 Opinion of the Court

2012) (separate provision for trafficking in more than 10 pounds of marijuana). Of course, some offenders’ conduct will fall between § 841(b)(4) conduct and the more serious conduct required to trigger a “trafficking” statute. Brief for Respondent 30. Those offenders may avoid aggravated felony status by operation of the categorical approach. But the Government’s objection to that underinclusive result is little more than an attack on the categorical approach itself.11 We prefer this degree of imperfection to the heavy burden of relitigating old prosecutions. See supra, at 200. And we err on the side of underinclusiveness because ambiguity in criminal statutes referenced by the INA must be con­ strued in the noncitizen’s favor. See Carachuri-Rosendo, 560 U. S., at 581; Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004).

Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provi­ sions, like § 1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18

U. S. C. § 921(a)(3). The Government fears that a conviction

under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas­

11

Similarly, Justice Alito’s dissent suggests that he disagrees with the first premises of the categorical approach. He says it is a “strange and disruptive resul[t]” that “defendants convicted in different States for com­ mitting the same criminal conduct” might suffer different collateral conse­ quences depending upon how those States define their statutes of convic­ tion. Post, at 218. Yet that is the longstanding, natural result of the categorical approach, which focuses not on the criminal conduct a defend­ ant “commit[s],” but rather what facts are necessarily established by a conviction for the state offense. Different state offenses will necessarily establish different facts. Some will track the “uniform” federal definition of the generic offense, and some will not. Taylor v. United States, 495

U. S. 575, 590 (1990). Whatever disparity this may create as between de­

fendants whose real-world conduct was the same, it ensures that all de­ fendants whose convictions establish the same facts will be treated con­ sistently, and thus predictably, under federal law. This was Taylor’s chief concern in adopting the categorical approach. See id., at 599–602.

Opinion of the Court

Alvarez requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U. S., at 193. To defeat the categorical comparison in this manner, a noncitizen would have to dem­ onstrate that the State actually prosecutes the relevant of­ fense in cases involving antique firearms. Further, the Gov­ ernment points to § 1101(a)(43)(P), which makes passport fraud an aggravated felony, except when the noncitizen shows he committed the offense to assist an immediate fam­ ily member. But that exception is provided in the INA itself. As we held in Nijhawan, a circumstance-specific inquiry would apply to that provision, so it is not compara­ ble. 557 U. S., at 37–38.

* * * This is the third time in seven years that we have consid­ ered whether the Government has properly characterized a low-level drug offense as “illicit trafficking in a controlled substance,” and thus an “aggravated felony.” Once again we hold that the Government’s approach defies “the ‘com­ monsense conception’ ” of these terms. Carachuri-Rosendo, 560 U. S., at 573 (quoting Lopez, 549 U. S., at 53). Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, “does not fit easily into the ‘everyday understanding ’ ” of “ trafficking, ” which “ ‘ordinarily . . . means some sort of commercial dealing.’ ” Carachuri-Rosendo, 560 U. S., at 574 (quoting Lopez, 549

U. S., at 53–54). Nor is it sensible that a state statute that

criminalizes conduct that the CSA treats as a misdemeanor should be designated an “aggravated felony.” We hold that it may not be. If a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense in­ volved either remuneration or more than a small amount of marijuana, the conviction is not for an aggravated felony under the INA. The contrary judgment of the Court of Ap­

Cite as: 569 U. S. 184 (2013) 207 Thomas, J., dissenting

peals is reversed, and the case is remanded for further pro­ ceedings consistent with this opinion.

It is so ordered.

Justice Thomas, dissenting. A plain reading of 18 U. S. C. § 924(c)(2) identifies two re­ quirements that must be satisfied for a state offense to qual­ ify as a “felony punishable under the Controlled Substances Act [(CSA)].” “First, the offense must be a felony; second, the offense must be capable of punishment under the [CSA].” Lopez v. Gonzales, 549 U. S. 47, 61 (2006) (Thomas, J., dis­ senting). Moncrieffe’s offense of possession of marijuana with intent to distribute satisfies both elements. No one disputes that Georgia punishes Moncrieffe’s offense as a fel­ ony. See Ga. Code Ann. § 16–13–30( j)(2) (Supp. 2012) (“Ex­ cept as otherwise provided in subsection (c) of Code Section 16–13–31 or in Code Section 16–13–2, any person who vio­ lates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years”).1 And, the offense is “punishable under the [CSA],” 18 U. S. C.

§ 924(c)(2), because it involved “possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance,”

21 U. S. C. § 841(a)(1). Accordingly, Moncrieffe’s offense is a

“drug trafficking crime,” 18 U. S. C. § 924(c)(2), which consti­

1

Section 16–13–31(c) (Supp. 2012) increases the punishment for traffick­ ing in marijuana, while § 16–13–2(b) (2011) decreases the punishment for simple possession of one ounce or less of marijuana. Neither provision is applicable to Moncrieffe’s offense of possession of marijuana with intent to distribute.

The Court correctly points out that Moncrieffe was sentenced pursuant to § 16–13–2(a) because he was a first-time offender. Ante, at 188–189.

That provision does not alter the felony status of the offense. Rather, it gives courts discretion to impose probation instead of imprisonment and to do so without entering a conviction. As the majority recognizes, peti­ tioner has waived any argument that he was not convicted for purposes of the Immigration and Nationality Act. Ante, at 189, n. 2.

Thomas, J., dissenting

tutes an “aggravated felony” under the Immigration and Na­ tionality Act (INA), 8 U. S. C. § 1101(a)(43)(B).2 The Court re jected the plain meaning of 18 U. S. C. § 924(c)(2) in Lopez. 549 U. S., at 50. There, the defendant was convicted of a state felony, but his offense would have been a misdemeanor under the CSA. Id., at 53. The Court held that the offense did not constitute a “ ‘felony punishable under the [CSA]’ ” because it was not “punishable as a felony under that federal law.” Id., at 60 (quoting § 924(c)(2); em­ phasis added). I dissented in Lopez and warned that an in­ quiry into whether a state offense would constitute a felony in a hypothetical federal prosecution would cause “significant inconsistencies.” Id., at 63. I explained that one such in­ consistency would arise if an alien defendant never convicted of an actual state felony were subject to deportation based on a hypothetical federal prosecution. Id., at 67.

This precise issue arose in Carachuri-Rosendo v. Holder, 560 U. S. 563 (2010). Instead of following the logic of Lopez, however, the Court contorted the law to avoid the harsh re­ sult compelled by that decision. In Carachuri-Rosendo, the defendant was convicted of a crime that the State catego­ rized as a misdemeanor, but his offense would have been a felony under the CSA because he had a prior conviction.

560 U. S., at 567–568, 570–571. The Court held that the of­ fense did not constitute an “aggravated felony” because the state prosecutor had not charged the existence of a prior conviction and, thus, the defendant was not “actually con­ victed of a crime that is itself punishable as a felony under federal law.” Id., at 582. Concurring in the judgment, I

2

See 8 U. S. C. § 1227(a)(2)(A)(iii) (providing that aliens convicted of an “aggravated felony” after admission are deportable); § 1229b(a)(3) (provid­ ing that aliens convicted of an “aggravated felony” are ineligible for cancellation of removal); § 1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in [18 U. S. C. § 924(c)])”); 18 U. S. C. § 924(c)(2) (defining “drug trafficking crime” as “any felony punishable under the [CSA]”).

Cite as: 569 U. S. 184 (2013) 209 Thomas, J., dissenting

explained that the Court’s decision was inconsistent with Lopez because the defendant’s conduct was punishable as a felony under the CSA, but that Lopez was wrongly decided and that a proper reading of § 924(c)(2) supported the Court’s result. 560 U. S., at 585. Carachuri-Rosendo’s crime of conviction was a state-law misdemeanor and, as a result, it did not qualify as a “felony punishable under the [CSA].” See ibid. I declined to apply Lopez in Carachuri-Rosendo, and I am unwilling to apply it here. Indeed, the Court itself declined to follow the logic of Lopez to its natural end in Carachuri- Rosendo. And, now the majority’s ill-advised approach once again leads to an anomalous result. It is undisputed that, for federal sentencing purposes, Moncrieffe’s offense would constitute a federal felony unless he could prove that he dis­ tributed only a small amount of marijuana for no remunera­ tion. Cf. United States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (Sotomayor, J.) (agreeing with the Government that 21 U. S. C. § 841(b)(4) is a mitigating exception to the “default provision” under § 841(b)(1)(D) and that it need not negate the § 841(b)(4) factors to support a sentence under § 841(b)(1)(D)). But, the Court holds that, for purposes of the INA, Moncrieffe’s offense would necessarily correspond to a federal misdemeanor, regardless of whether he could in fact prove that he distributed only a small amount of mari­ juana for no remuneration. Ante, at 196–197 (asserting that neither § 841(b)(1)(D) nor § 841(b)(4) is the “default” provision).

The Court’s decision, thus, has the effect of treating a sub­ stantial number of state felonies as federal misdemeanors, even when they would result in federal felony convictions.

The majority notes that “[t]his is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as . . . an ‘aggravated felony.’ ” Ante, at 206. The Court has brought this upon itself. The only principle uniting Lopez, Carachuri-Rosendo, and the decision today appears to be

Alito, J., dissenting

that the Government consistently loses. If the Court con­ tinues to disregard the plain meaning of § 924(c)(2), I expect that these types of cases will endlessly—and needlessly— recur. I respectfully dissent.

Justice Alito, dissenting.

The Court’s decision in this case is not supported by the language of the Immigration and Nationality Act (INA) or by this Court’s precedents, and it leads to results that Con­ gress clearly did not intend.

Under the INA, aliens 1 who are convicted of certain of­ fenses may be removed from this country, 8 U. S. C. § 1227(a)(2) (2006 ed. and Supp. V), but in many instances, the Attorney General (acting through the Board of Immigra­ tion Appeals (BIA)) has the discretion to cancel removal, §§ 1229b(a), (b). Aliens convicted of especially serious crimes, however, are ineligible for cancellation of removal. § 1229b(a)(3) (2006 ed.). Among the serious crimes that carry this consequence is “illicit trafficking in a controlled substance.” § 1101(a)(43)(B).

Under the Court’s holding today, however, drug traffickers in about half the States are granted a dispensation. In those States, even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribu­ tion is a major source of income for some of the world’s most dangerous drug cartels, Dept. of Justice, National Drug In­ telligence Center, National Drug Threat Assessment 2, 7 (2011), but the Court now holds that an alien convicted of

1

“Alien” is the term used in the relevant provisions of the INA, and this term does not encompass all noncitizens. Compare 8 U. S. C. § 1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with § 1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (Gins­ burg, J., dissenting).

Cite as: 569 U. S. 184 (2013) 211 Alito, J., dissenting

participating in such activity may petition to remain in this country.

The Court’s decision also means that the consequences of a conviction for illegal possession with intent to distribute will vary radically depending on the State in which the case is prosecuted. Consider, for example, an alien who is ar­ rested near the Georgia-Florida border in possession of a large supply of marijuana. Under the Court’s holding, if the alien is prosecuted and convicted in Georgia for possession with intent to distribute, he is eligible for cancellation of re­ moval. But if instead he is caught on the Florida side of the line and is convicted in a Florida court—where possession with intent to distribute a small amount of marijuana for no remuneration is covered by a separate statutory provision, compare Fla. Stat. § 893.13(3) (2010) with § 893.13(1)(a)(2)— the alien is likely to be ineligible. Can this be what Con­ gress intended?

Certainly the text of the INA does not support such a result. In analyzing the relevant INA provisions, the start­ ing point is 8 U. S. C. § 1229b(a)(3), which provides that a lawful permanent resident alien subject to removal may apply for discretionary cancellation of removal if he has not been convicted of any “aggravated felony.” The term “ag­ gravated felony” encompasses “illicit trafficking in a con­ trolled substance . . . including a drug trafficking crime (as defined in [18 U. S. C. § 924(c)]).” 8 U. S. C. § 1101(a)(43)(B).

And this latter provision defines a “drug trafficking crime” to include “any felony punishable under the Controlled Sub­ stances Act [(CSA)] (21 U. S. C. 801 et seq.).” 18 U. S. C. § 924(c)(2). Thus “any felony punishable under the [CSA]” is an “aggravated felony.” Where an alien has a prior federal conviction, it is a straightforward matter to determine whether the conviction was for a “felony punishable under the [CSA].” But 8

U. S. C. § 1101(a)(43) introduces a complication. That provi­

Alito, J., dissenting

sion states that the statutory definition of “aggravated fel­ ony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” (Emphasis added.) As noted, the statutory definition of “aggravated felony” includes a “felony punishable under the [CSA],” and therefore § 1101(a)(43)(B) makes it necessary to determine what is meant by a state “offense” that is a “felony punish­ able under the [CSA].” What § 1101(a)(43) obviously contemplates is that the BIA or a court will identify conduct associated with the state of­ fense and then determine whether that conduct would have supported a qualifying conviction under the federal CSA.2 Identifying and evaluating this relevant conduct is the ques­ tion that confounds the Court’s analysis. Before turning to that question, however, some preliminary principles should be established.

In Lopez v. Gonzales, 549 U. S. 47, 50 (2006), we held that felony status is controlled by federal, not state, law. As a result, once the relevant conduct is identified, it must be de­ termined whether proof of that conduct would support a fel­ ony conviction under the CSA. The federal definition of a felony is a crime punishable by imprisonment for more than one year. 18 U. S. C. §§ 3559(a)(1)–(5). Consequently, if the

2

The Court’s disagreement with this proposition, ante, at 197, n. 8, is difficult to understand. If, as § 1101(a)(43) quite plainly suggests and the Court has held, a state conviction can qualify as an “aggravated felony,” we must determine what is meant by a state “offense” that is a “felony punishable under the [CSA].” There is no way to do this other than by identifying a set of relevant conduct and asking whether, based on that conduct, the alien could have been convicted of a felony if prosecuted under the CSA in federal court. In rejecting what it referred to as a “hypothetical approach,” the Carachuri-Rosendo Court was addressing an entirely different question, specifically, which set of conduct is relevant.

Carachuri-Rosendo v. Holder, 560 U. S. 563, 572, 580 (2010). We held that the relevant set of conduct consisted of that which was in fact charged and proved in the state-court proceeding, not the set of conduct that could have been proved in a hypothetical federal proceeding.

Cite as: 569 U. S. 184 (2013) 213 Alito, J., dissenting

proof of the relevant conduct would support a conviction under the CSA for which the maximum term of imprison­ ment is more than one year, the state conviction qualifies as a conviction for an “aggravated felony.”

This brings us to the central question presented in this case: how to determine and evaluate the conduct that consti­ tutes the state “offense.” One possibility is that actual con­ duct is irrelevant, and that only the elements of the state crime for which the alien was convicted matter. We have called this the “categorical approach,” Taylor v. United States, 495 U. S. 575, 600 (1990), and we have generally used this approach in determining whether a state conviction falls within a federal definition of a crime, see id., at 600–601 (“Section 924(e)(2)(B)(i) defines ‘violent felony’ as any crime punishable by imprisonment for more than a year that ‘has as an element’—not any crime that, in a particular case, involves—the use or threat of force. Read in this context, the phrase ‘is burglary’ in § 924(e)(2)(B)(ii) most likely refers to the elements of the statute of conviction, not to the facts of each defendant’s conduct”). But, as will be discussed below, we have also departed in important ways from a pure categorical approach.

The Court’s opinion in this case conveys the impression that its analysis is based on the categorical approach, but that is simply not so. On the contrary, a pure categorical approach leads very quickly to the conclusion that petition­ er’s Georgia conviction was a conviction for an “aggravated felony.” The elements of the Georgia offense were as follows: knowledge, possession of marijuana, and the intent to dis­ tribute it. Ga. Code Ann. § 16–13–30( j)(1) (2007); Jackson v.

State, 295 Ga. App. 427, 435, n. 28, 671 S. E. 2d 902, 909,

n. 28 (2009). Proof of those elements would be sufficient to

support a conviction under 21 U. S. C. § 841(a), and the maxi­

Alito, J., dissenting

mum punishment for that offense is imprisonment for up to five years, § 841(b)(1)(D) (2006 ed., Supp. V), more than enough to qualify for felony treatment. Thus, under a pure categorical approach, petitioner’s Georgia conviction would qualify as a conviction for an “aggravated felony” and would render him ineligible for cancellation of removal.

The Court departs from this analysis because § 841(b)(4) (2006 ed.) provides a means by which a defendant convicted of violating § 841(a) may lower the maximum term of impris­ onment to no more than one year. That provision states that “any person who violates [§ 841(a)] by distributing a small amount of marihuana for no remuneration shall be treated as” a defendant convicted of simple possession, and a defendant convicted of that lesser offense faces a maximum punishment of one year’s imprisonment (provided that the defendant does not have a prior simple-possession convic­ tion), § 844 (2006 ed. and Supp. V). Reading this provision together with § 841(a), the Court proceeds as if the CSA created a two-tiered possession-with-intent-to-distribute of­ fense: a base offense that is punishable as a misdemeanor and a second-tier offense (possession with intent to distribute more than a “small amount” of marijuana or possession with intent to distribute for remuneration) that is punishable as a felony.

If the CSA actually created such a two-tiered offense, the pure categorical approach would lead to the conclusion that petitioner’s Georgia conviction was not for an “aggravated felony.” The elements of the Georgia offense would not suf­ fice to prove the second-tier offense, which would require proof that petitioner possessed more than a “small amount” of marijuana or that he intended to obtain remuneration for its distribution. Instead, proof of the elements of the Geor­ gia crime would merely establish a violation of the base of­ fense, which would be a misdemeanor.

The CSA, however, does not contain any such two-tiered provision. And § 841(b)(4) does not alter the elements of the

Cite as: 569 U. S. 184 (2013) 215 Alito, J., dissenting

§ 841(a) offense. As the Court notes, every Court of Ap­ peals to consider the question has held that § 841(a) is the default offense and that § 841(b)(4) is only a mitigating sen­ tencing guideline, see United States v. Outen, 286 F. 3d 622, 636–639 (CA2 2002) (Sotomayor, J.) (describing § 841(b)(4) as a “mitigating exception”); United States v. Hamlin, 319 F. 3d 666, 670 (CA4 2003) (collecting cases), and the Court does not disagree, ante, at 196–198.

Confirmation of this interpretation is provided by the use of the term “small amount” in § 841(b)(4). If § 841(b)(4) had been meant to alter the elements of § 841(a), Congress surely would not have used such a vague term. Due process re­ quires that the elements of a criminal statute be defined with specificity. Connally v. General Constr. Co., 269 U. S.

385, 393 (1926). Accordingly, it is apparent that § 841(b)(4) does not modify the elements of § 841(a) but instead consti­ tutes what is in essence a mandatory sentencing guideline.

Under this provision, if a defendant is convicted of violating § 841(a), the defendant may attempt to prove that he pos­ sessed only a “small amount” of marijuana and that he did not intend to obtain remuneration for its distribution. If the defendant succeeds in convincing the sentencing judge, the maximum term of imprisonment is lowered to one year.

In sum, contrary to the impression that the Court’s opinion seeks to convey, the Court’s analysis does not follow the pure categorical approach.

Nor is the Court’s analysis supported by prior case law.

The Court claims that its approach follows from our decision in Carachuri-Rosendo v. Holder, 560 U. S. 563 (2010), but that case—unlike the Court’s opinion—faithfully applied the pure categorical approach.

In Carachuri-Rosendo, the alien had been convicted in a Texas court for simple possession of a controlled sub­ stance. Id., at 570–571. At the time of that conviction, Carachuri-Rosendo had a prior state conviction for simple

Alito, J., dissenting

possession, but this fact was not charged or proved at his trial and was apparently not taken into account in setting his sentence, which was 10 days in jail. Ibid. Arguing that Carachuri-Rosendo was ineligible for cancellation of re­ moval, the Government maintained that his second simple- possession conviction qualified under the INA as a conviction for an “aggravated felony.” Id., at 570. This was so, the Government contended, because, if Carachuri-Rosendo’s sec­ ond simple-possession prosecution had been held in federal court, he could have been punished by a sentence of up to two years due to his prior simple-possession conviction.

Ibid.

This more severe sentence, however, would have required the federal prosecutor to file a formal charge alleging the prior conviction; Carachuri-Rosendo would have been given the opportunity to defend against that charge; and the heightened sentence could not have been imposed unless the court found that the prior conviction had occurred. Id., at 578.

Our rejection of the Government’s argument thus repre­ sented a straightforward application of the pure categorical approach. The elements of the Texas offense for which Carachuri-Rosendo was convicted were knowledge or intent, possession of a controlled substance without a prescription, and nothing more. Id., at 570–571; Tex. Health & Safety Code Ann. §§ 481.117(a), (b) (West 2010). Proof of a prior simple-possession conviction was not required, and no such proof appears to have been offered. The maximum penalty that could have been imposed under federal law for simple possession (without proof of a prior simple-possession convic­ tion) was one year’s imprisonment. Thus, proof in federal court of the elements of the Texas offense would not have permitted a felony-length sentence, and consequently the state conviction did not qualify as a felony punishable under the CSA.

Cite as: 569 U. S. 184 (2013) 217 Alito, J., dissenting

Unsupported by either the categorical approach or our prior cases, the decision of the Court rests instead on the Court’s belief—which I share—that the application of the pure categorical approach in this case would lead to results that Congress surely did not intend.

Suppose that an alien who is found to possess two mari­ juana cigarettes is convicted in a state court for possession with intent to distribute based on evidence that he intended to give one of the cigarettes to a friend. Under the pure categorical approach, this alien would be regarded as having committed an “aggravated felony.” But this classification is plainly out of step with the CSA’s assessment of the severity of the alien’s crime because under the CSA the alien could obtain treatment as a misdemeanant by taking advantage of

21 U. S. C. § 841(b)(4).

For this reason, I agree with the Court that such an alien should not be treated as having committed an “aggravated felony.” In order to avoid this result, however, it is neces­ sary to depart from the categorical approach, and that is what the Court has done. But the particular way in which the Court has departed has little to recommend it.

To begin, the Court’s approach is analytically confused.

As already discussed, the Court treats § 841(b)(4) as if it modified the elements of § 841(a), when in fact § 841(b)(4) does no such thing. And the Court obviously knows this because it does not suggest that § 841(b)(4) changes the ele­ ments of § 841(a) for criminal law purposes.3

3

The Court defends its interpretation of 21 U. S. C. §§ 841(a), (b)(4) by arguing that Carachuri-Rosendo, 560 U. S. 563, rejected any recourse to a “hypothetical approach” for determining how a criminal prosecution likely would have proceeded, see ante, at 197, and that is true enough. But, as discussed above, see n. 2, supra, just because the categorical approach does not require conjecture as to whether a hypothetical federal prosecu­ tor would be likely to charge and prove a prior conviction does not mean

Alito, J., dissenting

In addition, the Court’s approach leads to the strange and disruptive results noted at the beginning of this opinion. As an initial matter, it leads to major drug trafficking crimes in about half the States being excluded from the category of “illicit trafficking in a controlled substance.” Moreover, it leads to significant disparities between equally culpable de­ fendants. We adopted the categorical approach to avoid dis­ parities in our treatment of defendants convicted in different States for committing the same criminal conduct. See Tay­ lor, 495 U. S., at 590–591 (rejecting the view that state law determined the meaning of “burglary” because “[t]hat would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that con­ duct ‘burglary’ ”). Yet the Court reintroduces significant disparity into our treatment of drug offenders. All of this can be avoided by candidly acknowledging that the categori­ cal approach is not the be-all and end-all.

When Congress wishes to make federal law dependent on certain prior state convictions, it faces a difficult task. The INA provisions discussed above confront this problem, and their clear objective is to identify categories of criminal con­ duct that evidence such a high degree of societal danger that an alien found to have engaged in such conduct should not be allowed to obtain permission to remain in this country.

Since the vast majority of crimes are prosecuted in the state courts, Congress naturally looked to state, as well as federal, convictions as a metric for identifying these dangerous aliens.

that it also precludes analysis of the structure of the federal criminal stat­ ute at hand. Indeed, our categorical-approach cases have done little else.

See, e. g., Carachuri-Rosendo, supra, at 578 (discussing procedural protec­ tions Carachuri-Rosendo would have enjoyed had he been prosecuted fed­ erally); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185, 189–194 (2007) (the term “theft offense” in 8 U. S. C. § 1101(a)(43)(G) includes the crime of aiding and abetting a theft offense).

Cite as: 569 U. S. 184 (2013) 219 Alito, J., dissenting

But state criminal codes vary widely, and some state crimes are defined so broadly that they encompass both very serious and much less serious cases. In cases involving such state provisions, a pure categorical approach may frustrate Congress’ objective.

The Court has said that the categorical approach finds sup­ port in the term “conviction.” Id., at 600; Shepard v. United States, 544 U. S. 13, 19 (2005). But the Court has never held that a pure categorical approach is dictated by the use of that term,4 and I do not think that it is. In ordinary speech, when it is said that a person was convicted of or for doing something, the “something” may include facts that go be­ yond the bare elements of the relevant criminal offense.

For example, it might be said that an art thief was convicted of or for stealing a Rembrandt oil painting even though nei­ ther the identity of the artist nor the medium used in the painting are elements of the standard offense of larceny.

See 3 W. LaFave, Substantive Criminal Law § 19.1(a) (2d ed. 2003).

For these reasons, departures from the categorical ap­ proach are warranted, and this Court has already sanctioned such departures in several circumstances. See Taylor, supra, at 602 (modified categorical approach); Gonzales v.

Duenas-Alvarez, 549 U. S. 183, 193 (2007) (categorical ap­ proach does not exclude state-law convictions unless there is “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”); Nijhawan v. Holder, 557

U. S. 29, 32 (2009) (interpreting an enumerated “aggravated

felony” in 8 U. S. C. § 1101(a)(43) not to be a generic crime).

4

Instead, the Court adopted the categorical approach based on a combi­ nation of factors, including judicial efficiency. See Taylor, 495 U. S., at 601 (“[T]he practical difficulties and potential unfairness of a factual ap­ proach are daunting. In all cases where the Government alleges that the defendant’s actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was”).

Alito, J., dissenting

Consistent with the flexibility that the Court has already recognized, I would hold that the categorical approach is not controlling where the state conviction at issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard and a sub­ stantial number that do not. In such situations, it is appro­ priate to look beyond the elements of the state offense and to rely as well on facts that were admitted in state court or that, taking a realistic view, were clearly proved. Such a look beyond the elements is particularly appropriate in a case like this, which involves a civil proceeding before an expert agency that regularly undertakes factual inquiries far more daunting than any that would be involved here. See,

e. g., Negusie v. Holder, 555 U. S. 511 (2009).

Applying this approach in the present case, what we find is that the Georgia statute under which petitioner was con­ victed broadly encompasses both relatively minor offenses (possession of a small amount of marijuana with the intent to share) and serious crimes (possession with intent to dis­ tribute large amounts of marijuana in exchange for millions of dollars of profit). We also find that petitioner had the opportunity before the BIA to show that his criminal con­ duct fell into the category of relatively minor offenses carved out by § 841(b)(4). Administrative Record 16–26. The BIA takes the entirely sensible view that an alien who is con­ victed for possession with intent to distribute may show that his conviction was not for an “aggravated felony” by proving that his conduct fell within § 841(b)(4). Matter of Castro Rodriguez, 25 I. & N. Dec. 698, 701–702 (2012). Petitioner, for whatever reason, availed himself only of the opportunity to show that his conviction had involved a small amount of marijuana and did not present evidence—or even contend— that his offense had not involved remuneration. Adminis­ trative Record 16–26, 37. As a result, I think we have no alternative but to affirm the decision of the Court of Appeals, which in turn affirmed the BIA.