Tasios v. Reno

possession behind a dresser month for the of co- here was found sentence issue from which the caine in the bedroom base. drawer in which author- exit and officer saw Jones IT IS SO ORDERED personal papers, we ities discovered Jones’ court, sitting as say that the district cannot fact, finding erred Jones

trier of cocaine.

possessed the distribute, Jones asserts

As to intent to quantity of cocaine discover-

that the small suggests an intent to use the cocaine

ed rather than to distribute it.

personally, However, drug paraphernalia sale was dis- TASIOS, Konstantinos Petitioner- with cocaine in the along covered bed- Appellee, room, expert at trial that and an testified grams 3.4 of cocaine could be redistributed units, RENO; Meissner, many

in as as 35 see J.A. 118. The Janet Doris Commis clearly per- thus sufficient to sioner of the and Natu evidence was Service; Walters, fact Patrick mit the trier of to conclude Jones ralization J. Charge the cocaine. as the for the intended distribute Officer Char lotte Subdivision of the Immi Office IV. Service, gration and Naturalization Respondents-Appellants. argues, government Jones and the concedes, possession of cocaine base is No. 99-6061. possession lesser included offense of with base, Appeals, States Court intent to cocaine see distribute Unit Baker, Fourth Circuit. ed States v.

(4th Cir.1993), that, because Jones was Argued: Sept. charged with convicted of the two Decided: Feb. regard grams with offenses the same 3.4 cocaine, possession conviction must merged possession into the with intent sentencing pur distribute conviction for Ohio, poses, see Brown v. L.Ed.2d such, impos

As the district court erred in separate on Jones a twelve-month sen base, for possession

tence of cocaine

we therefore portion vacate that of Jones’

sentence.

CONCLUSION reasons, foregoing

For the affirm the

judgment respect of the district court with suppress the denial of Jones’ motion to

and the sufficiency sup- of the evidence However,

porting his conviction.

we conclude that possession Jones’ cocaine merged

conviction should have been into possession with intent to distribute

conviction, separate we vacate the twelve- Williams,

ARGUED: John Darren Of- Litigation of Immigration fice Civil Divi- sion, Justice, Department States D.C., Washington, Appellants. for Lee P. Gelernt, Union, American Civil Liberties York, York; Aziz, Cynthia New New Ann AZIZ, P.A., Charlotte, C.A. North Car- olina, Appellee. ON BRIEF: David Ogden, Acting W. Assistant Gen- Fuller, eral, Litiga- C. Christopher Senior tion, Immigration Office of Litigation, Civil Division, Department United States Justice, D.C., Washington, for Appellants. Devereux, P. Sean Law Sean Office of Devereux, Asheville, Carolina, North Appellee. LUTTIG, MICHAEL,

Before KING, Judges. Circuit months; to 18 he sentenced Judge opinion. published Affirmed conviction Tasios’s prison. months in which opinion, wrote MICHAEL “aggravated satisfied definition joined. Judge LUTTIG Judge KING felony,” as defined opinion. concurring wrote (INA) 101(a)(43), Nationality Act OPINION 1101(a)(43) (1995), § and thus ren- U.S.C. INA deportable. him dered MICHAEL, Judge: Circuit 241(a)(2)(A)(iii), § 8 U.S.C. petitioned for a writ Tasios Konstantinos 1251(a)(2)(A)(iii) (1995), at 8 § recodified court, corpus in federal district of habeas 1227(a)(2)(A)(iii)(1999). § Never- U.S.C. to refusal consider challenging the INS’s theless, sentence prison his actual discretionary waiver a application his for (in 1995) years, Tasios under five INS that the argued The deportation. Attorney General apply to the could still Death Pen- and Effective Anti-Terrorism discretionary deportation, for relief from (AEDPA) Illegal and alty Act 1996 1182(c) 212(c), § § INA 8 see U.S.C. Re- Immigrant and Immigration Reform (1995), ultimately petition and for review (IIRIRA) Act 1996 divested sponsibility of appeals. court subject juris- matter court district .of addition, argued In INS diction. following plea and year Tasios’s 440(d) drug § AEDPA Tasios’s sentence, passed the Anti-Ter him from conviction barred conspiracy Penalty Act of and Effective Death rorism any application for making 104-132, (AEDPA), Pub.L. No. rejected both The court district (1996), Illegal Immigra and Stat. and arguments, granted petition, Tasios’s Responsibility Immigrant and tion Reform to make a determina- instructed INS (IIRIRA), Pub.L. No. Act of for a waiver of Tasios’s legislation, That Stat. deportation. appeals, The INS and sweeping changes in the which worked affirm. laws, to this case immigration is relevant 440(d) § respects. two I. 212(c) § to preclude INA discre a a citizen has been Tasios is Greek who Tasios, aliens, relief for like who tionary the United permanent lawful resident of trafficking drug convicted of have been when, 10, he came age States since 1967 offenses, length of the regardless country family. his to this with His six- Second, AEDPA and IIRIRA sentence. son, brothers, year-old and uncle three availability ap narrow combined citizens, parents are while his are deportation proceed pellate review over In 1995 lawful residents. Tas- permanent INS, See Bowrin ings. 194 F.3d a count of con- single ios was indicted on (4th Cir.1999); Hall spiracy possess with intent distribute Cir.1999). (4th 852, 854-56 cocaine, § of 21 U.S.C. violation 1996 the INS initiated de- In November agreement He a with the plea entered (and against Tasios. He portation proceedings un- government pled guilty) on the sought and discre- sentenced to conceded derstanding that he 212(c). INA The prison tionary relief under years than five thus be less judge issued an order of de- deportation. immigration eligible to seek relief from 212(c) ap- portation denied Tasios’s government stipulated Tasios and the 440(d) facts, amount, that AEDPA plication, reasoning that led including the retroactively to convictions entered that his total district court to find his This, exhausting After together before its enactment. offense level was 15. with remedies, I, petitioned administrative Tasios history category of Tasios’s criminal federal for a writ yielded guideline imprisonment range court, that the INS’s inter- offense would arguing precluded district him from The if pretation applying was incorrect. tried INS juris- deport following year, that it had habeas him. The district held howev er, claim pursuant expanded diction over Tasios’s the list of that AEDPA criminal convictions would render a U.S.C. retroactively. ap- person ineligible did not INS relief. Un der peals any determinations. We affirm the the amended law alien both who “has (or district court for the reasons set out below. been convicted of a violation violate) spiracy attempt or an law II. regulation State, States, aof the United foreign country relating or a to a con challenges INS district substance, trolled other a single than of holding that AEDPA and IIRIRA court’s possession involving fense for one’s own jurisdiction do not eliminate that court’s to grams use of 30 marijuana less of claim decide Tasios’s under 28 U.S.C. deportable” ineligible § 2241. INS contends that the deportation. waiver 8 U.S.C. implicitly 1961 enactment of the INA re 1227(a)(2)(B)(i); 440(d). § § AEDPA § 2241 pealed jurisdiction over claims aris deportation proceedings. from In the above, sought As we noted after INS alternative, the INS argues AEDPA deport Tasios because of his con- § repealed jurisdic implicitly viction, Tasios conceded deportable tion for aliens who are 212(c) § sought immigration they Finally, committed certain crimes. judge application denied Tasios’s § argues 242(g), INS INA 212(c) relief, § Immigra- and the Board of IIRIRA, by § repealed 2241 ha- (BIA) Appeals appeal. dismissed his jurisdiction beas over claim Tasios’s immigration judge BIA relied Attorney misinterpreted has General on the General’s decision Mat- 440(d). § AEDPA Each these argu (BIA) Soriano, ter Interim Decision holding ments is our recent foreclosed (BIA 1997), WL juris Boimin that district courts have 440(d) § which held that AEDPA bars § very diction to review the felony alien of an aggravated convicted here, claim presented involving ques one from relief seeking pursuant to section relating tion of law to the administrative 212(c) Act, regardless of the date of 212(c) Bowrin, § denial of relief. See argues, his conviction. Tasios and the dis- 489-90. agreed, trict that the INS erred § applying AEDPA retroactively.

III. begin After the deporta- by asking INS ordered Tasios’s We “whether August tion in sought expressly he prescribed discretion- has 212(c), ary under INA [temporal] Landgraf 8 U.S.C. statute’s reach.” 1182(c).1 Prods., 244, 280, to AEDPA Prior that section Film USI (1994). permitted the Attorney General to waive S.Ct. L.Ed.2d 229 “If deportation long person subject so as the is no congressional there directive on ag- statute, not deportation temporal had committed an reach of we determine gravated felony and had not five application served whether statute years prison. or more in in a See 8 U.S.C. the conduct at issue would result 1182(c) (1995). Thus, so, when Tasios retroactive If then in pled keeping effect. guilty possess conspiracy presumption’ against -withintent with our ‘traditional cocaine, retroactivity, presume to distribute his conviction for that that the statute however, repealed by apply, subject 1. Section was continues to IIRIRA 304(b). rules, Under IIRIRA's transitional to certain restrictions. “apply 154 will Chapter pressly states that conduct.” Martin apply to does after the date of on or pending to cases Hadix, 119 S.Ct. 527 U.S. 107(c); this Act.” enactment of con- We 144 L.Ed.2d 347 Lindh, 2059. clearly indi- Congress has not clude that reach of temporal cated that the new Thus, stating by explicitly of the section and that cases, pending Con Chapter applies deporta- guilt or concessions pleas amendments to implied that gress AEDPA’s enactment bility predating Lindh, 521 U.S. Chapter 153 do not. See Thus, we retroactive effect. interpretation That court. affirm the district his legislative support finds further chapters that the two which reveals tory, A. single shortly bill joined into a had been 107(e)’s retroactivity provision AEDPA before To determine whether backward, id. & n. 6. The different we of course inserted. See reaches accident, statute, treatment, then, “a was no since language of the begin with the Congress was statutory con Member of the thoughtful rules of using the normal later intended what the Murphy, likely 521 U.S. most to have See Lindh v. struction. “nega 2059, by inference.” Id. This 320, 326, 138 L.Ed.2d 481 reader sees 117 S.Ct. in expressed Congress’s implication” made its intent tive Congress If has apply prospectively clear, Chapter of its acting within the limits tent that while any need to determine only, obviating As we inquiry is concluded. power, our however, below, pending to cases Congress’s whether demonstrate 440(d) effect. § retro actual retroactive make AEDPA would have intent to 326, 327-28, 117 anything S.Ct. 2059. but at spective prospective or is id. clear. 440(d) 101-106, § §§ Like AEDPA expressly stating provision tains no Supreme question before 104, pending cases. As applies § whether to in Lindh was whether observed, however, 2254(d), other § ap- the district amended 28 U.S.C. which explic AEDPA Title IV are provisions of noncapital proceedings plied to habeas See, e.g., AEDPA itly AEDPA’s retroactive. the time of pending were 401(f) of new INA (applying provisions § § on that As 104 was silent enactment. regard to the to all aliens “without general Title V the Court turned point, entry”); entry attempted id. AEDPA, of or particular in AEDPA date scheme (applying “applications § I, 413(g) § section contains 104. The Court Title which before, on, after” AEDPA’s date or “independent I filed that Title stands noted enactment). circuits, of our sister Most provides in that it the Act’s other titles” treatment, this difference observing for “the revision of federal habeas negative im Lindh’s rule things.” applied main practice, and does two in Lindh, 326, and concluded plication 521 U.S. 440(d) (footnote omitted). apply prospectively § §§ tended for 101-106 Reno, 144 28, v. F.3d only. Title See Goncalves provisions of amended various (1st denied, Cir.1998), cert. 110, 153, cor- 128-29 Chapter governs all habeas 143 L.Ed.2d 119 S.Ct. courts. 526 U.S. pus proceedings in- the federal INS, (1999); v. Henderson any lan- 208 sections contains None of these — (2d denied, Cir.1998), cert. 129-30 amendments guage suggesting that those cases, -, 143 L.Ed.2d do and U.S. apply pending or do not Reno, (1999); 166 F.3d Second, § Sandoval none has an effective date. Reno, (3d Cir.1999); Pak v. 241-42 154 for entirely Chapter created an new (6th Cir.1999); May 675-76 196 F.3d cases. Sec- proceedings capital (11th 1302-03 107(c), 175 F.3d §§ tion ex- ers v. in contrast to Cir.1999). chapter But see Jurado-Gutierrez cerned to ensure that 154 be (10th Greene, cases, Cir. pending it should have 1999) finding just Lindh and the in (applying chapter been concerned about § Al ambiguous). 153.” tended reach agree with the conclusion that

though we Martin, at -, S.Ct. only, cannot prospective Lindh, (quoting negative impli agree that Lindh’s rule 2059). contrast, we cannot be confident cation here. applies make, that Congress’s say, clear intent to (Denial § 413 While AEDPA Title TV contains some Other Relief for Alien Terrorists) (Limita retroactive, explicitly that are retroactive or provisions See, tion explicitly e.g., on Collateral Attacks on prospective. Underlying others are 441(b) Order) (amendment limiting Deportation prospective says col- much of anything respect on about intent with deportation lateral attacks orders its 440(d)’s applies criminal on proceedings criminal “to bar relief. See id. (refusing apply analysis the date of en- proceedings initiated after Lindh “whol 440(f) (sec- AEDPA); ly provisions distinct” Litiga actment” of id. the Prison 440(e)’s Act). tion Ultimately, amendments to definition of Reform our exami “aggravated felony” apply retrospective, to “convictions nation of the sometimes prospective provisions entered after the date of the enact- sometimes that sur AEDPA). 440(f) round AEDPA ment” of But see id. unveils the Janus- 440(e)(3), proviso Congress, relat- like (containing faces but its mind leaves retro- smuggling, to alien concealed. if actively the enactment of “as included routinely Courts confront such am 222 of section and Nation- biguities legislative drafting and have 1994”). ality Technical Corrections Act of judicial developed just for default rules The time frames and triggering various Among such occasions. the venera most events AEDPA Title scattered about TV ble of default rules is the presump these (rela- in stand marked contrast Title I’s retroactivity. tion against statutory See tively) disjunction neat between the silence Landgraf, 511 U.S. at 114 S.Ct. 1483. §§ of clear 101-106 and the statement of Absent evidence of in congressional “clear 107(c). an Consequently, examination of tent that apply statute] should cases [a provides help discerning Title IV little in enactment,” the arising pre before its thoughtful “a what member of the Con- sumption against statutory retroactivity is gress likely was most to have intended.” not 114 rebutted. Id. S.Ct. 1483. Lindh, 521 U.S. at 117 S.Ct. 2059. firmly princi presumption This rests addition, the provisions substantive of ples political accountability. of fairness and subject Title IV also mat- address distinct people op that Fairness dictates have recently ters. explained, As the portunity to know what the law is and negative implication argument in Lindh accordingly; conform their conduct “set special weight

carried because both tled not expectations lightly be dis chapters rupted.” addressed similar issues: Id. at 114 1483. And S.Ct. Chapter legislature new a that established standards because there is risk tempted corpus applications “may legisla review habeas to use retroactive against state and 154 cre- a means of un prisoners, chapter as retribution individuals,” ated new for review popular groups standards of habeas or id. by state rule as applications prisoners 114 S.Ct. a clear evidence Congress under sentences. Because both that itself has considered capital sures chapters “govern[ed] affecting any potential standards unfairness and allocates to cases, in Congress political responsibility weigh entitlement to relief’ Congress reasonably ing ... against “[i]f was con- that unfairness the benefits (4th Cir.1993). De Osorios were The legislation. See id. Here, early no is clear evi- victed of offenses 1483. there deport Congress that has considered moved to dence 1988. When INS 440(d)’s reach, temporal Mean them, they sought decided Congress presume thus we that intended while, enacted in November retroactive effect. that no Act of Anti-Drug Abuse “aggra the De Osorios’ offenses defined

B. Immigration Act of felonies.” The vated 440(d)’s proper agrees that INS make then INA clearly Appellant’s reach not defined.” “is to aliens relief unavailable Soriano, Br. at 29. also Matter See aggravat who been convicted of these had (noting “nothing WL 426888 argued ed felonies. De Osorios 440(d) specifies ... ei- language felony enacted aggravated definition pending it to be applied ther that is then- retroactively did not it or that is not deportation proceedings, disagreed, conclud prior convictions. We be”). Nevertheless, may be that section interpretation INS’s Tasios, argues, because applied to INS aggra Anti-Drug Abuse Act’s definition has no actual retroactive such felony as be applying vated convictions disagree. As we illustrate be- effect. We date, on, fore, and after that Act’s effective low, application of AEDPA permissible construction of the stat a pleas guilty concessions U.S.A., Chevron, language utory has an predate AEDPA’s enactment Inc. Natural Resources Coun Defense undeniably retroactive effect. cil, Inc., 837, 842-43, U.S. operate statute not ‘ret “A does 81 L.Ed.2d 694 De Oso rospectively’ merely applied rio, F.3d at Here does the INS antedating a from arising case conduct interpretation not us to defer to its ask Landgraf, 511 the statute’s enactment.” 440(d)’s reach; indeed, temporal Rather, S.Ct. 1483. score, interpretation INS offers no on this rights party “would impair statute that conceding that the statute’s reach is acted, par he increase a possessed when clearly Although defined. resolved conduct, ty’s liability past impose to the by deferring in De Osorio issue respect new duties with to transactions INS, say on that of we went already completed” has true retroactive 212(c) the to the De Osorios 280, In effect. Id. at 114 S.Ct. 1483. in was not retroactive event. Id. determining operates whether a statute in two 1041-42. We made observations retroactively, we turn to “familiar consid First, suggest support of this dictum. we notice, reliance, erations of fair reasonable felony ed “past aggravated that the convic 270, expectations.” Id. at 114 settled the only prerequisite prospective tion is considerations, turn, Those in S.Ct. 1483. relief.” at 1042. discretionary denial of Id. principle on “individuals rest the that Second, we noted that De Osorios opportunity have an what know they that plausibly argue relied could their the law is and to conform conduct discretionary availability on the of relief 265, Id. at 114 S.Ct. 1483. accordingly.” they vio deportation from when chose to id.2 late the laws. See Since question similar

We considered Osorio, here, has dictum, Supreme in decided De presented though one INS, 1034, involving a number cases retro- De Osorio v. 1041-42 decided of ability deporta- did this of a waiver of The De Osorios not make second Osorio, argument. engage illegal drug De 10 F.3d at 1042 choosing See tion when ("The argument, make nor could Osorios no activity.”). they, they that relied on the avail- somehow See, Martin; modify principles. e.g., reasonably his conduct in reliance activity Lindh; 212(c) v. Hughes prospect Co. on the relief. Aircraft Schumer, ex rel. U.S. might right States an alien waive the to trial and (1997); 138 L.Ed.2d 135 Rivers S.Ct. plead guilty a criminal charge, banking Inc., Roadway Express, v. U.S. a lighter on sentence that preserve (1994); 128 L.Ed.2d 274 S.Ct. 212(c) availability of a waiver. See Landgraf. light guidance In of this recent Reno, Mojica F.Supp. v. 175-78 Court, we Supreme from the conclude (E.D.N.Y.1997); Soriano, Matter in De do the observations made Osorio Second, might WL 426888. an alien con not account for the essential retroactive deportability, despite having cede a color- consequences removing availability defense, knowing able the facts his 212(c) §of 212(c) provide good possibility case Reyes-Hernandez relief. See ‘principle legal “The that the effect (7th Cir.1996) (“Considering ordinarily of conduct should be assessed consequences deportation, fell espe under the law that existed when the con cially in exceptional cases of hardship, place duct took has timeless and universal ” which are precisely the cases which an Landgraf, 511 appeal.’ U.S. at 212(c) appeal to section would have a Kaiser & (quoting S.Ct. 1483 Aluminum success, chance of we think unlikely Corp. Bonjorno, Chemical Congress intended to mousetrap aliens (1990) 855, 110 1570, 108 L.Ed.2d 842 conceding deportability by into holding out J., (Scalia, concurring)). legal When hope to them the section effect of conduct is determined subse 212(c) only they to dash that after hope law, quently operates enacted that law ret deportability.”). had conceded Because roactively. considering whether 212(c) grounds for a criminal alien to chal would alter the legal effect lenge specif are narrow predates conduct AEDPA’s enact ic, ment, there will be few cases in which such an analysis we do not limit our alien a colorable defense. felony conduct that resulted convic has Neverthe less, Aircraft, possibility tion. of a defense Hughes successful At (finding categorically. that amend cannot be ruled out least prior ment had retroactive one fact that it effect confirms was reasonable duct, rely whether relevant conduct prospect for an alien to on the claim pleading guilty submission of a false or the defen relief when or con ceding deportability: years dant’s disclosure of the false claim to the immedi AEDPA, government). ately preceding While no one could reason the enactment of ably rely BIA availability immigration judges granted “on the of a discre and the tionary deportation applications they waiver of when choos over half of the Mojica, engage illegal activity,” F.Supp. De decided.3 See 178. Osorio, Moreover, denied, applications 10 F.3d at there are at least when were person ap- two circumstances in which a could review was in the courts of available evaluating In dence of value and service to the communi- relief, Marin, the INS ty. "balances social and hu- 16 I. & N. Dec. Matter of mane in the (BIA 1978). considerations alien’s favor 1978 WL 36472 Fac- against any factors that adverse demonstrate weighing against relief include: tors undesirability permanent his her a resi- or exclusion; underlying ground violation Osorio, in the De dent United States.’’ nature, laws; immigration recen- F.3d at 1038. record; cy, and seriousness of a criminal favoring has described factors [BIA] other of an alien's bad evidence including: family relief as ties in the United undesirability permanent character or as a States; duration; long residence of a mili- resident. Id. service; tary history employment; a Osorio, De F.3d at 1038 n.3. rehabilitation; character; good and evi- retroactive effect. jurisdiction lacks denials “on vacated those peals, which Reyes- govern- which the Landgraf language on of occasions.” nontrivial number Hernandez, by qualified at 492. subsequently 89 F.3d relies was ment Hughes Court in the unanimous Aircraft. AEDPA Thus, passage of prior to the rejected the In the latter case con guilty or pleading effect of legal jur- creating statute argument that a new by the mitigated ceding deportability was given presumptively isdiction obtaining a waiver possibility realistic effect, distinguishing between retroactive 212(c). charged “That an alien under addressing court “merely involving controlled sub statutes a crime with immigration jurisdiction to entertain a cause factor the stances would shall deciding wheth [a of conviction those that affect “whether sequences of action” and well-documented.” to trial is plead proceed Hughes or brought er Magana at all.” may be claim] 117 S.Ct. 1871. Aircraft, 520 U.S. -Pizano (9th Cir.1999). By with 200 F.3d jurisdiction grant The elimination of relief, availability of that drawing the creation, 212(c) relief, than its no less a fundamental worked just power particu- of a to the “speaks plea or legal effect of such change rights of lar court but to the substantive 612; id., F.3d at See concession. also Matter parties as well.” Id. See It 492-93. Reyes-Hernandez, (“[T]here Soriano, 1996 WL 426888 is consequence of no here is to which the crimi- no alternative tribunal decided discretionary. As cases relief is 440(d) is may petition.”). nal alien Section establish, Facto the Ex Post Clause against subject presumption to the thus any change system from a id., retroactivity, presumption see and that is prescribed one of outcomes relief to III.A., rebutted, part see has not been See, Washing e.g., Lindsey v. retroactive. supra. ton, 301 U.S. (maximum (1937) sentence L.Ed. C. discretionary mandatory);

changed from 305-07 Thompson, Fender v. reasons, we conclude For these (4th Cir.1989) (revocation parole eligibil 440(d), pleas guilty if Aircraft, ity). Hughes also made to concessions of Ex (analogizing to Post date, up- AEDPA’s effective before retroactivity analy cases in Facto Clause reasonable, expectations settled set sis). conduct. change legal prior effect of gov Finally, unpersuaded arewe expressly com- Congress has not Because has no argument that ernment’s effect, § retroactive manded such simply de retroactive effect because in those inapplicable cases. power of the prives General analogous to a grant relief and thus is Br. jurisdictional Appellant’s new rule. IV. cites Land government 33-34. Here the that the district summary, we hold jurisdictional a new

graf, which said that jurisdiction under had habeas ... “normally governs rule [pending cases] chal- 2241 to review Tasios’s 28 U.S.C. jurisdictional speak statutes Attorney and the lenge to the General rather than to the power of the court 440(d). interpretation of INS’s rights parties.” obligations 440(d)’s merits, bar of we hold On Landgraf, not (internal omitted). Assuming quotations felo- pled guilty aggravated who aliens jurisdiction that sense some nies, prior al, deportability, conceded or who agree we cannot that its elimination judgment gether, to AEDPA’s effective date. The as implications well as to the of the court the district is therefore opinion Hughes Court’s for the Aircraft Attorney General’s decision in In re Sori- AFFIRMED. And, again only ano. insofar as I am LUTTIG, concerned, Circuit it Judge, concurring: should also address itself fully more than it did in its brief before I concur in the judgment the court very this court to the specific question of join opinion. and I I so court’s do whether the legal consequences of Tasios’ question of whether the district guilty plea were altered by the enactment we) (and jurisdiction, have I because 440(d). of section am opinion bound this in Bow court’s rin Immigration v. United States & Natu (4th Service,

ralization 194 F.3d 483 Cir.

1999). join opinion I the court’s with re

spect to the retroactive effect of the enact 440(d) largely,

ment of AEDPA’s section

though exclusively, the Su

preme Hughes Court’s decision in Aircraft Schumer, Co. v. States rel. United ex America, UNITED STATES of L.Ed.2d Plaintiff-Appellee,

(1997), after which decided both this opinion court’s De Osorio v. United States & Ser Naturalization FRAZIER-EL, Clinton

vice, (4th Bernard Cir.1993), Defendant-Appellant. opinion in In General’s re Sori ano, (Feb. 21, 1997). 1996WL 426888 No. 98-4462. I realize dis- United States United Court of Appeals, States agrees with this decision in Bow- court’s Fourth Circuit. rin, today’s and with decision the extent Bounin, that it I presume follows Argued Sept. rehearing United States will en seek today’s judgment jurisdiction banc of Decided March lay adjudicate in the district court to Tas- that, I presume

ios’ claims. if the rehearing

States seek en our does banc of

jurisdictional decision, it will seek likewise

rehearing judgment en banc of our on the

merits that section is impermissibly petitioner

retroactive as Tasios. so, should, it

Should do insofar I am

concerned, more fully address itself than it

did in its brief before this court to those

portions the Supreme Court’s unani- opinion

mous in Hughes in which Aircraft explained the Court that our attention only

must petition- be directed not conduct, primary

er’s but also to rele- conduct,

vant secondary and distinguished

between merely statutes that address jurisdiction shall forum jurisdiction

statutes withdraw alto-

Case Details

Case Name: Tasios v. Reno

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 28, 2000

Citation: 204 F.3d 544

Docket Number: 99-6061

Court Abbreviation: 4th Cir.