Tuesday, October 11, 2016
Pennsylvania Drug Priors Not Necessarily Qualifying Predicates for Recidivist Enhancements
In Singh v. Attorney General, No. 15-2274, the Court reverses the Board of Immigration Appeals’ determination that an alien's prior Pennsylvania drug offense was an “aggravated felony” making him subject to removal and ineligible for discretionary relief. In both this immigration context and those presented by recidivist enhancements such as the Sentencing Guidelines’ career offender provision, the court must determine whether the prior conviction was for an offense matching the “generic” federal definition of the pertinent crime. If the state offense sweeps more broadly, it is not a predicate.
With regard to Pennsylvania's principal controlled substance law at 35 Pa. C. S. § 780-113(a)(30), that requirement can present an issue inasmuch as the state’s controlled substance schedules at § 780-104 include drugs not embodied in the federal schedule at 21 U.S.C. § 802. A prior conviction therefore cannot be deemed a predicate unless the sentencing court (or immigration judge) is permitted to inquire into underlying judicial records to determine what substance formed the basis for the defendant’s prior Pennsylvania conviction. For such inquiry to be permissible, § 780-113(a)(30) must be “divisible,” meaning that drug type must be an element of the offense.
Here, the Court quotes its recent decision in Bedolla Avila v. Attorney General, No. 15-1860 (June 23, 2016), to confirm that § 780-113(a)(30) is “divisible ‘with regard to both the conduct and the controlled substances to which it applies,’” i.e., that the type of substance is one element of the offense, and the mode of trafficking — for example, “manufacturing” vs. “delivering” — is another. Accordingly, courts may make inquiry into the limited class of judicial documents cognizable on the “modified categorical approach” under Shepard v. United States, 544 U.S. 13 (2005).
In Singh’s case, the cognizable portions of the underlying judicial record featured language one would imagine was formulated to keep the conviction from triggering immigration consequences: his offenses were said to involve a “PA Counterfeit Substance – Non Fed.” Rejecting the government’s view that state courts and prosecutors lack authority to determine what substances are or are not within the scope of the federal Controlled Substances Act, the Court reads the “Non Fed” language to permit a conclusion that "whichever drug identity Singh’s previous conviction involved, it was not a drug identity listed as a federal controlled substance.”
The Court also rejects an end-run ventured by the Board of Immigration Appeals, which had held that Pennsylvania drug priors constitute aggravated felonies as a categorical matter. According to the BIA, “no ‘reported decision of a Pennsylvania court’” indicates any defendant has been convicted for “conduct involving a substance that was not included in the Federal controlled substance schedules.” The Board thus concluded that Pennsylvania drug offenses qualify as predicates because there is no “realistic probability” that “Pennsylvania actually prosecutes people under § 780-113(a)(30) for misconduct involving substances that are not federally controlled.” In rejecting that conclusion, the Court explains that no such “realistic probability” inquiry is appropriate where the elements of the state and federal offenses do not match. In the case of 35 Pa. C. S. § 780-113(a)(30), the different penalties provided by state law for different substances, as well as discussion in a Superior Court decision, supply the correct points of reference to hold that drug type is an element, such that no match appears.
Amendment 801 to § 2G2.2(b)(3)(F) is a substantive change to the Guidelines, and does not apply retroactively under § 2255
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