*1 v. HOLDER, ATTORNEY CARACHURI-ROSENDO GENERAL THE UNITED OF TO STATES COURT APPEALS FOR

CERTIORARI

THE FIFTH CIRCUIT 31,2010 14, 2010 Argued 09-60. March June No. —Decided *3 Stevens, J., opinion Court, Roberts, J., delivered the in which C. Ginsburg, Kennedy, Breyer, Auto, Sotomayor, JJ., joined. and and post, p. post, p. J., Thomas, J., 584, opinions and Scalia, filed concur ring judgment. in argued petitioner. the cause for him

Sri Srinivasan With Irving Kathryn L. Gornstein, the briefs were E. Tarbert, on Geoffrey A. and Hoffman. Saharsky argued respondent. A. the cause for Nicole Kagan, on the brief her were Solicitor General With As Attorney Deputy West, General Solicitors General sistant Manning Dreeben, Keener, and Donald E. Kneedler W. Holly Evans, Greenstein, MacLachlan, Saul Andrew and * M. Smith. of amici curiae urging Center on reversal were filed *Briefs Amirfar, Berg, Jill van Catherine M. Law of Criminal

Administration Edwards; Barkow, Anthony B. S. David for the National Association delivered of the Court. opinion

Justice Stevens Carachuri-Rosendo, Petitioner Jose Angel lawful perma- who nent resident has lived in the United since he States old, was faced under years deportation five federal law after committed he two in drug misdemeanor offenses possession For the than first, Texas. less ounces possession two he received For second, in days jail. pos- marijuana, without of one anti- session tablet a common prescription medication, he anxiety received 10 After this days jail. offense, second the Federal Government initiated removal him. He conceded that he proceedings against was remov- but claimed he relief able, eligible was from discretionary 1229b(a). under 8 U. removal To decide whether is to seek eligible Carachuri-Rosendo cancellation removal or waiver of inadmissibility § 1229b(a), we must has decide whether he been convicted of an felony,” §1229b(a)(3), crimes “aggravated category out for the singled harshest deportation consequences. held that a Appeals offense, Court simple drug possession committed after the conviction for a first offense became final, always felony. We now re- aggravated hold verse and that second or subsequent simple possession 1101(a)(43) offenses are not felonies when, as case, state conviction is based on the of a fact prior conviction.

I *4 (INA), Under and Act 66 Immigration Nationality seq., C. 1101 et § Stat. 8 a lawful amended, per- U. S. Walden and Richard Jim A. Lawyers by Criminal Defense et al. Bierschbach; by al. for the et National Association Federal Defenders Pratt, Sweitzer, Bennett, Rashkind, Iris E. H. G. Paul M. Frances Brett Love; Mary Price, Organizations Repre- Margaret Colgate and for Coberly. senting Asylum Linda T. by Seekers Nancy Morawetz Asian American Justice Center a brief filed for al. as amici curiae. et

manent resident to removal from subject the United States inter for discretionary cancellation of apply if, removal alia, he “has not been of any convicted aggravated felony,” 1229b(a)(3). § The statutory definition of the term “aggra- vated felony” includes a list of numerous federal offenses,1 of which is “illicit one ain trafficking controlled substance including (as .. . drug crime defined in trafficking section 18).” 924(c) of 1101(a)(43)(B). § title Section 924(c)(2), in defines a turn, “drug crime” to mean trafficking “any felony under,” inter alia, “the Controlled Substances (21 Act U. S. C. 801 et A seq.).” is a crime for which term “maximum of imprisonment authorized” is “more than one year.” 3559(a).2 § U. S. C.

The maze of statutory cross-references continues. Sec- tion of the Controlled Substances Act criminalizes simple offenses, the possession of offense type issue this case. But it prescribes for punishment both misdemeanor and fel- offenses. ony Except simple crack cocaine possession or flunitrazepam, first-time offense simple possession is a misdemeanor; maximum term authorized for such a conviction is less than 844(a). one year. U. C.S. However, a conviction for a simple offense “after conviction under prior this under the subchapter [or] law State .. . has become any final” —what we call recidi- will simple vist possession3 may be punished with felony, — term “aggravated felony” 1The “applies to an . offense . . whether violation of Federal or (or, circumstances, State law” in certain “the law 1101(a)(43). foreign country”). of a 8 U. S. C. 2The Controlled “any Substances Act itself defines the term ‘Telón/’ or Federal State offense applicable classified law as Federal or State felony.” §802(13). 21 U. C.S. The Government concedes the classi 3559(a) fication of felonies under 18 U. S. C. controls in case. Brief Respondent 4. 844(a) Although does expressly separate define a offense of “recid simple possession,” ivist the fact of nonetheless be conviction must True, subject before a defendant is the statu- found to a sentence. *5 **4 Ibid.* a sentence of to prison Thus, two up years. except for simple possession offenses isolated involving categories recidivist of at issue, drugs presently only simple posses are sion a “punishable” offenses under the “felony” 924(c)(2). § Substances And thus Act, Controlled S. C. conviction within a particular simple category offenses be an might, conceivably, “aggravated 1101(a)(43). under 8 U. S. C. For a offense to be subsequent simple possession eligible e., i. an enhanced be punishment, as a fel- the Controlled Substances Act that a ony, requires prosecu- tor the existence of the con- charge prior simple possession trial, viction before or before a 21 See U. S. C. plea. guilty 851(a)(1).5 6Notice, the va- plus opportunity challenge conviction to enhance prior used the current lidity United, tory comports States, scheme with Almendarez-Torres 523 U. S. (1998), explained 247 in which we that the Constitution does not re- quire treating words, recidivism as an element of the offense. In other Congress permissibly has set out a simple possession criminal offense for whereby finding by by a a judge, preponderance recidivist of the evi- dence, punishment a pen- authorizes exceeds maximum alty simple possession prior offense. But the fact of conviction only by if by judge preponderance must still be found —if and felony punishment. subject evidence —before a defendant For §844(a)’s present purposes, felony simple possession we therefore view distinct provision separate simple possession from the misdemeanor prescribes. offense section also 4 part: “Any person relevant provides The statute who violates this imprisonment subsection be sentenced to a term of not more than year prior ... such offense after except that if he commits conviction imprisonment ... to a he shall be sentenced term for not less than 15 844(a). days years ....” but not more than person who stands convicted of an provides: This subsection “No of punishment be to increased rea part fense under this shall sentenced convictions, trial, entry before of one or more unless or before son attorney files an with plea guilty, of a States information the United (and person of such information on the copy court serves or counsel writing previous convictions to be relied person) stating for the 851(a)(1). upon.” *6 §§851(b)-(c), mandatory prerequisites to ob- are

conviction, taining punishment a on the fact of conviction.6 a based necessary they prerequisites also under federal law are And §3559(a), felony punishment, 18 U. S. for a C. to “authorize” simple type at in this case. offense issue trafficking” of an “illicit offense the definition Neither 1101(a)(43)(B) § “drug traffick- nor that under 924(c)(2) ing or 18 describes refer- crime” under U. S. C. felony” any “aggravated defini- state offenses. ences explain applies “to an offense the term tion does paragraph of Federal in this whether in violation described 1101(a)(43). Lopez Gonzales, 549 But v. or law.” State (2006), that, in order to be an U. 56 we determined 47, S. felony” immigration purposes, “aggravated law a state for felony punishable drug as a under must be conviction federal pun- 'felony held that “a state offense constitutes law. We pro- Act’ if it ishable under Controlled Substances punishable felony federal under that scribes conduct as petitioner Despite Lopez at 60. the fact that the Id., law.” punished and, indeed, a felon under state had been law— 5-year conduct of his offense was sentence—the received felony pre- punishable law, qualifying as an the state convictionfrom vented 6 require mandatory nature of these previously recognized the haveWe LaBonte, United States v. 520 Appeals. ments, have the Courts of See (1997) (“We penalty imposition an enhanced 751, 754, 1 note that n. U. S. not file does ... If the Government recidivism] not automatic. [for 851(a)(1)] sentencing ... the lower 21 U. S. C. [under notice such eligible may otherwise be applied though even the defendant range hewill Beasley, 495 g., e. United States also, v. penalty”); see the increased Ceballos, 679, 690-692 (CA4 2007); F. 3d v. United States 142, 148 F. 3d (CA5 2002); 153, Dodson, States v. F. 3d United (CA7 2002); (CA8 2002). Although Mooring, 287 F. 3d 725, States 727-728 United see constitutionally compelled, safeguards are not procedural §851’s mandatory Almendarez-Torres, are nevertheless they securing a prerequisite Act and a Substances of the Controlled feature 844(a) offense. simple possession for a successive conviction (“Unless immigration purposes. Id., law at 55 felony it a state offense is as a federal does not count”). argues case us,

In the before Government despite having 10-day Carachuri-Rosendo, received simple possession for his Texas sentence misdemeanor of- “aggravated nevertheless has been of an fense, “convicted” meaning within the INA. This is so, the Gov- contends, ernment had because Carachuri-Rosendo been prosecuted in federal court, court instead state he could prosecuted 2-year been as a felon and received a sen- prior simple possession tence on *7 based the fact of his offense. holding Lopez that, Our teaches for a state conviction to qualify “aggravated felony” as an is neces- INA, sary underlying for the conduct to be as a federal felony. Id., at 60. We now must determine whether the possibility, 2-year mere remote, no matter how that a sen- might imposed tence have been in a federal trial is a suffi- concluding cient basis that state misdemeanant who was charged “aggra- not as recidivist has been “convicted” of an 1229b(a)(3). meaning within vated II Carachuri-Rosendo was born in Mexico in 1978. He came parents to the United States with his and has been permanent a lawful resident of Texas ever since. His common-lawwife and four children are American citizens, are his mother and two sisters. many country, got-

Like so in this Carachuri-Rosendo has drug ten into some trouble with our laws. In 2004, he pleaded guilty possessing less than two ounces mari- juana, misdemeanor, a class B and was sentenced con- days by App. finement for 20 a Texas court. See 19a-22a; 481.121(a) (b)(1) §§ Safety Tex. Health & Code Ann. and (West 2009). pleaded Supp. 2005, In he nolo contendere to possessing grams alprazolam less than 28 tablet —of —one Xanax) (known prescription, commercially without a App. Health & 31a-34a; Tex. A misdemeanor. See class (b). 481.117(a) §§ Although Safety law, Texas Ann. Code sentencing like if the enhancement law, authorized pre- proved prosecutor that Carachuri-Rosendo had been viously class, of an offense a similar State convicted an enhancement based on his criminal elect seek did not history. App. 32a. pos- on basis of Carachuri-Rosendo’s second

In the Federal Government initiated removal offense, session against pro Appearing proceedings him. se before dispute Immigration Judge, that Carachuri-Rosendo did possessing one his conviction for tablet of Xanax without applied prescription made he for a removable,7 him but dis- pursuant cretionary cancellation of removal to 8 U. S. C. §1229b(a). statutory provision, Attorney that Under or cancel an order of removal an order of inad- General missibility long alia, so inter the noncitizen “has not been as, 1229b(a)(3). felony.” a[n] convicted Immigration Judge petitioner’s simple pos- held that second “aggravated felony” conviction was an him session made ineligible for cancellation of removal. (BIA) Immigration Appeals

The Board followed Circuit disagreed precedent and affirmed but it with decision, *8 Immigration Judge’s legal analysis. opin In its bane en the arising in BIA ruled that in cases in which ion, the Circuits question yet decided, had not been the BIA would not a as an treat second or successive misdemeanor conviction aggravated unless conviction contained find ing was a recidivist. In re Carachuri- offender (2007). Rosendo, 382, 387, 24 I. & Dec. N. statutory question explained is

The BIA that the com- possession’” by not a plicated the fact “‘recidivist (such marijuana possession offenses as Carachuri But for trivial offense), drug grounds are virtually all offenses 2004 state Rosendo's 1227(a)(2)(B)(i). S. C. under 8 U. removal Id., at Federal law.” 388. While offense under “discrete by elements that be offenses are defined must most federal beyond pos- jury proved doubt, to reasonable recidivist “amalgam sentencing substantive elements, is an session procedural safeguards.” Id., at 389. Section factors, and 844(a) simple possession by reference to defines leading felony punishment, but “facts to recidivist elements, prior qualify as conviction, of a do not such as the existence in the traditional sense.” Ibid. ‘elements’ §851 pre- BIA that “21 U. observed, however, judge enhancing drug from sen- cludes a Federal offender’s compliance the basis recidivism absent with tence on among safeguards things, pro- that, other serve to number right opportunity tect the of the accused to notice and an propriety punishment be heard an increased Therefore, on convictions.” Ibid. these based re- quirements part parcel “are of what it means for a crime “[Ujnless Id., to be ‘recidivist’offense.” at 391. the State impose successfully sought punishment for a recidivist drug simple posses- conviction,” concluded, the BIA a state ‘proscribe sion “conviction cannot conduct as’ re- possession” cidivist under federal law. Ibid. Appeals review,

On Court affirmed BIA’s deci reading in case, sion Carachuri-Rosendo’s our decision Lopez dictating proscribed “[I]f its outcome. the conduct prosecuted offense could have been state Controlled Substances the court Act, reasoned, qualifies then the defendant’s conviction as an 2009) (CA5 felony. (citing Lopez, 263, 267 570F. 3d 549U. 60). analysis hypothetical ap “[t]he at The court deemed its proach,” understanding a term it derived from its of our analysis Lopez. method of 3d, 266, 3; 570 F. and n. see (CA7 Pacheco-Diaz, United also States v. 513 F. 3d curiam) 2008) (per (employing “hypothetical-federal- felony approach”). approach, Ap Under this as the Court “g[o] beyond peals it, understood courts the state statute’s

573 a state statute the conduct hypothetical look at elements at “con- any n. 3. 3d, Accordingly, 570 F. proscribes.” have been as a punished “could duct” “hypothetically” court” is an “had “ag- been federal felony” prosecuted [it] federal law immigration purposes. Id., for felony” gravated In Court of hypothetical approach, 265. applying §851 did not discuss procedural requirements. Appeals Instead, it concluded because Carachuri-Rosendo’s “con- could have as simple possession been with prosecuted duct” under recidivist enhancement state law —even though also not —it been under punished was could Thus, view, law. in the Court of his convic- Appeals’ under without a law, tion state recidi- simple possession an enhancement, was “aggravated immigra- vist law purposes.8 tion granted certiorari resolve conflict among

We over whether Appeals subsequent simple posses- Courts (2009). offenses are felonies.9 U. S. 1091 sion 558 aggravated Ill statutory provisions

When interpreting dispute, at the terms of the and begin looking we provisions those “eommonsense terms. 549 conception” Lopez, S., 8 case, Appeals Since the Court of issued its in this decision Carachuri Respondent party, has been Brief for 10-11. Rosendo removed. Neither however, suggested case has that this is now moot. If Carachuri-Rosendo “aggravated felony,” satisfy not convicted of if was an and he continues to requirements § 1229b(a), C. of U. he still seek 8 S. cancellation of 1229b(a) (“The even after having Attorney removal been removed. See may cancel in the General removal case an alien who is inadmissible or criteria). deportable horn the if the alien” several United States meets 9 (CA5 2009) Compare F. (holding simple 570 3d 263 state conviction for simple possession after conviction for is a Fer felony) Controlled Act and Substances thus and (CA7 2008) Mukasey, nandez Berhe v. Gonza (same), v. 862 with 544 P. 3d (CA1 2006) les, Mukasey, Alsol v. (taking contrary view), 464 F. 74 3d 548 (CA2 2008) (CA3 2002) Holmes, Gerbier v. (same), F. F. 3d 3d (CA6 2008) (same). Mukasey, (same), Rashid F. 3d *10 574 ineligible of is for re- cancellation

at 53. Carachuri-Rosendo felony,” a[n] if was of he “convicted moval 1229b(a)(3), case, be a which, in this could U. C. S. trafficking in for “illicit a controlled substance ... conviction 1101(a)(43)(B). drug trafficking including crime,” possession offense such as Carachuri- A recidivist easily “everyday fit does not into understand- Rosendo’s type Lopez, ing” terms, 549 U. This S., of those 53. possession simple typically thought petty is offense not of as trafficking.” “aggravated or as “illicit We ex- an ‘trafficking’ Lopez “ordinarily plained means in some dealing.” (citing Id., at of commercial 53-54 Black’s sort (8th just Dictionary Lopez, And as in Law “[cjommerce ed. 2004». part pos- of” . was no Caraehuri-Rosendo’s . . sessing certainly single Xanax, “and it no tablet of is ele- possession.” simple atS., 54. As an initial ment reading statutory then, we observe that a of this matter, apply “aggravated” “trafficking” an scheme that would or simple say any possession offense to is, label to the least, “unorthodox,” ibid. counterintuitive type penalty at The same is true for the issue. We do usually 10-day not think of a sentence for unauthorized possession prescription drug trivial amount of a as an felony.” “felony,” “aggravated A we have come to under- usu[ally] punishable by imprison- stand, is “serious crime year by ment more than one or death.” Black’s Law (9th 2009) (hereinafter Black’s). Dictionary “ag- ed. An gravated” by “made or offense is one worse more serious presence deadly violence, circumstances such as a weapon, or Id., the intent to commit another crime.” at 75. “aggravated felony” unique The term is to Title 8, which cov- immigration term matters; ers it is used elsewhere within United Code. Our criminal States law insignificant classifies the most of federal E” felonies—“Class carrying years felonies—as a sentence of “less than five but §3559(a)(5). than one more 18 U. S. C. While it is year.” true that criminal be seen defendant’s history might an offense Black’s thereof, make “worse” virtue classify type nevertheless unorthodox petty simple recidivism as “aggravated felony.” course, Of Justice Souter observed his opinion like has the Lopez, Congress, “Humpty Court Dumpty,” words give unorthodox at 54. power meanings. in this case the But Government for a result argues that “the *11 us tells not to so English language we must be expect,” “very of the Government’s Ibid. the wary position.” Because tells us that most are English language felonies aggravated sentences far than 10 punishable by and that longer days, mere of one tablet of possession Xanax does not constitute instructs us to “trafficking,” Lopez wary be of the doubly in this position Government’s ease.10

IV The the Government’s like Court of position, Appeals’ “hy- would treat all “conduct pothetical approach,” the of a “conviction” of a when- equivalent felony Lopez stated in possession, Court that "recidivist see 21 U. S. C. 844(a), clearly § by Congress fall[s] within the definitions used in 8 U. C.S. 1101(a)(43)(B) § 924(c)(2), S. regardless and 18 U. C. of whether these fed possession counterparts eral felonies their or state constitute ‘illicit traf ficking in a ‘drug trafficking’ controlled or are substance’ as those terms ordinary speech.” used in today n. 6. Our decision is footnote; simple pos not in conflict with this it is still true that recidivist charged prosecuted “clearly session offenses as such fall” within the aggravated felony. definition of an we had no occasion to decide What address, Lopez, and what we now is to be convicted of an what it means necessary felony. Lopez that the aggravated teaches us that it conduct punished correspond felony punishable law the under state to a under Con 1101(a)(43)(B). felony trolled Substances Act to be an under aggravated possibility it does not that conduct But instruct as whether the mere felony punishable as a charged could be—but is as an offense not — law is sufficient. underlying speaking, hypothetically conduct could ever, law. find treatment under federal We received have reasoning “hypothetical approach” itself—un- —and following persuasive reasons. fundamentally, position and most Government’s

First, Attorney ignores INA, which limits Gen- the text power alia, inter nonciti- when, eral’s cancellation felony.” aggravated a[n] . “has . . been convicted zen added). 1229b(a)(3) (emphasis The text thus to the conviction that we are look itself as our indicates might starting place, or not to could have been what pun- charged. And to be of an convicted such Act, ishable as Controlled Substances imprisonment term must “maximum authorized” be “more 3559(a)(5). year,” Congress, S. recall, than one U. C. only 1-year nearly chose to authorize sentence for all sim- exception ple offenses, but it created a narrow prosecutor charge for those cases in which a elects to as a recidivist and the defendant receives defendant notice against charge. opportunity and an to defend See 21 supra. §851; I, Part U. S. C.

Indisputably, of Carachuri-Rosendo’s record conviction finding prior drug no of the fact of his contains offense. argues finding even a Carachuri-Rosendo that such would be charge prosecutorial a and that of insufficient, recidivism and against opportunity charge that also defend would be required he could a before be deemed “convicted” of the Substances Act. In Controlled the any finding need recidivism, not, absence of we and do procedures not, decide whether these additional would be necessary. immigration Although may a court power finding in instance, the to make a recidivist the first g., States, see, 224, e. Almendarez-Torres v. United 523 U. S. (1998), post, 247 it ex enhance the cannot, state offense just to it au- of record because facts known would have greater penalty a under either state or federal thorized “convicted,” was not actually law.11 Carachuri-Rosendo offense committed “after 1229b(a)(3), a drug possession 844(a), has final,” conviction . . become and no . can that undo subsequent development history.12 Holder, (2009), Nijhawan Our decision last Term in v. S. upon by Government, case, contrary. relied the is not to the also In that categorical rejected approach employed the so-called we in cases like Rodriquez, (2008), whether, S. assessing United States 553 U. when § 1101(a)(43)(M)(i), C. 8 U. S. noncitizen has committed “an offense . fraud that . . involves or deceit in . which the loss to the . . victims $10,000.” analysis exceeds Our was tailored to the “circumstance- specific” language particular in aggra contained that of the subsection S., Nijhawan, vated definition. specifically at 38. And we distinguished “generic” categories the for which .a felonies categorical approach might appropriate including be “illicit the traffick — ing” provision “circumstance-specific” Id., offense at hand. at —from Moreover, ease, 36-39. unlike instant Nij there was no debate in the petitioner actually fraud; hawan over whether had been “convicted” we how to considered calculate amount of loss once a conviction particular category aggravated felony for a has occurred. 12Linking inquiry our comports the record of conviction with how categorized we have convictions for state within the offenses definition generic federal criminal sanctions under the Armed Career Criminal Act 924(e). (ACCA), 18 U. S. C. urges The United States that our decision Rodriquez, ease, in 553 U. S. an ACCA supports position its Respondent Brief for To case. 29-30. Rodriquez extent that is rele hand, contrary vant to the issue at we think the is true. In that decision finding we considered whether recidivist under state law that had increasing imprisonment” effect of the “maximum term of years, to 10 irrespective of imposed, the actual sentence made offense “serious 924(e)(1) drug meaning within the of 18 S. offense” U. C. and therefore predicate an ACCA offense. 553 U. 382. We held that recidivist finding imprisonment,” could set the “maximum term of but when finding part Id., Indeed, record of conviction. at 389. we specifically observed that those “in cases which the records properly be consulted do not show possibility defendant faced the enhancement, may of a recidivist well be that the Government bewill *13 that a precluded establishing qualifying from conviction was for a offense.” words, finding In when the giving 10-year Ibid. other recidivist rise to a itself, apparent appears sentence is from sentence or neither as part of conviction” nor “judgment charging document,” of the the “formal if had Carachuri-Rosendo contends that

The Government simple possession prosecuted in federal court been 844(a) circumstances, he would under identical C. 21 U. S. immigration “aggravated felony” for law committed have Arg. is so, This Govern- purposes. Tr. of 36-37. Oral matters suggests, text that because ment 924(c)(2): “punishable” in U. C. 18 S. Whatever is word felony, regardless might “punishable” be conduct felony actually punished not, or is a for immi- is so whether just purposes. stated, the reasons gration But for law prosecution were not of Carachuri-Rosendo’s circumstances hypothesized And the Government. to those identical 924(c)(2) approach to cannot abstracted the Government’s guidance of U. the more concrete S. C. reconciled with be 1229b(a)(3), Attorney cancella- limits the General’s which actually authority when the noncitizen has been tion merely a[n] when he “convicted —not felony but not. have convicted was could been relatedly, position fails to Second, and Government’s mandatory process requirements give notice and effect to §851. purposes, in 21 For federal-law contained “punishable” simple possession offense is not as un- prosecutor charge a federal first elects a defendant less statute, in the criminal information. The as a recidivist mandatory supra, speaks 568-569, I, in Part described person” subject “[n]o permitting to be to a recidivist terms, therefore, case, enhancement—and sen- given he has been notice of the Govern- tence—“unless” prior prove the ment’s intent to fact conviction. Fed- gives opportunity challenge law also the defendant an eral §§851(b)-(c). the fact conviction itself. procedures meaningless, these would dismiss Government ibid., the Government will not established had a defendant imprisonment which the maximum term of prior conviction for was necessary precursor (assuming finding or more the recidivist years sentence). such a *14 as satisfied the they during immigration be long so proceeding. practical

But these procedural requirements great with the conviction are to itself and inte- respect significance to the structure and our design drug laws. They gral to when authorize exercise discretion prosecutors electing to whether recidivist enhancement. See pursue United (CA5 (“Whereas Dodson, 2002) 153, F. 3d States 851(a)] version of the made enhancements prior [§ mandatory, the new gave offenses scheme prosecu- to tors discretion whether enhancements based seek on prior convictions”). Because are the to procedure^ prerequisites §851 an enhanced federal sentence, allows to prosecutors whether to seek choose conviction is “punishable” as 844(a). the felony Underscoring significance §851 United States procedures, Attorney’s Manual with to decisions recidivist enhance- respect seeking places ments on with the of a criminal par filing charge against a defendant. See of Justice, United States Attor- Dept, §9-27.300(B) Manual neys’ (1997), online http:// www.justice.gov/usao/eousa/foia_reading_room/usam/title9/ (as 27mcrm.htm#9-27.300 visited June 2010, and available file) Clerk Court’s case should re- (“Every prosecutor of an information under 21 . filing U. S. C. 851 . . gard to the equivalent as filing charges”). state criminal like

Many codes, scheme, afford to similar deference discretion when prescrib- prosecutorial is one recidivist enhancements. Texas such State. ing See, (West §§ Tex. 12.42, e. Penal Code Ann. 12.43 and g., 2009) (recidivist enhancement it is available Supp. “[i]f on trial” that defendant was convicted previously shown misdemeanors). identified And, felonies categories “[ajbandon” to case, in this elected prosecutor specifically under state law. 32a a recidivist enhancement App. (repro- a federal immi- state Were we judgment). permit ducing his own recidivist enhancement after judge apply gration fact make noncitizen’s offense “punishable” so law deni- we would immigration purposes, of state to exe- the independent judgment prosecutors grate of those the laws sovereigns. cute the Court of Third, Appeals’ hypothetical approach *15 Lopez. our a decision in never misreading based on We is term to describe our in that “hypothetical” analysis used the look to the conduct” of “proscribed case. We did a state it is felony to determine whether “punishable offense S., at 60. But “hypo- that federal law.” 549 U. the Court of intro- by thetical approach” employed Appeals a level at the outset this that conjecture inquiry duces Lopez. (the in It both the has no basis conviction ignores hook) and the relevant conduct actually punished on Instead, the state offense. focuses facts known to that could have but did not serve court as immigration and the basis for state conviction As the punishment. “ is a really Sixth Circuit has explained, approach ‘hypo- Mukasey, Rashid thetical 531 F. 3d hypothetical.’” (2008). 438, 445 Not does the wish us to Government a fictional federal the crime for consider felony —whether be a which Carachuri-Rosendo was convicted would actually Gov- Controlled Substances Act — but ernment wants us to facts not at issue in also consider (i. e., conviction) of a crime of conviction the existence could have been to determine whether Carachuri-Rosendo with a is far re- felony. methodology federal This charged from the more focused, categorical inquiry employed moved in Lopez.

Fourth, it seems clear that is argument Government’s in the courts. It with common practice inconsistent “conduct” that rise is quite unlikely gave have punished conviction would been Caraehuri-Rosendo’s in States federal court. Under the United Sentenc-' sentence, recommended Guidelines, Carachuri-Rosendo’s ing issue, would not at on the of controlled substance based type year very likely exceeded one would have been less Sentencing months. than six See United States Commis- (Nov. 2009) §2D2.1(a)(3) (base sion, Guidelines Manual of- 4). Lopez, And as true in fense level was the Government empirical provided suggesting us with no data has that “even single eager Attorney” Assistant United States has ever prosecute sought comparable federal defendant aas “hypotheti- felon. 57-58. The Government’s approach misleading is cal” to this case therefore as well as speculative, in that Carachuri-Rosendo’s federal-court coun- any terpart actuality, felony charge. in not, would have faced Finally, we in noted Leocal v. 543 U. S. Ashcroft, 1, 11, (2004),ambiguities n. 8 criminal statutes referenced im migration laws in the should be construed noncitizen’sfavor. language appears And here the critical statute, in criminal 924(e)(2). 18 U. S. C. “ag- note whether noncitizen has committed an

We gravated type alia, inter to the relevant, of relief *16 may he from a not to order, obtain removal but whether he words, is in fact removable. In other to the extent that our understanding rejection of the broad Government’s may scope “aggravated felony” any practical of effect policing our is a borders, on Nation’s limited one. position, may Carachuri-Rosendo, and now others his seek thereby of removal and avoid the harsh conse- cancellation quence mandatory he of But will not avoid the removal. his in the re- him, instance, conviction makes first fact Any depends upon relief the discre- movable. he obtain Attorney tion of General.

[*] % ^[*] qualify as an is correct that to sum, In Government felony” prohibited “aggravated the conduct INA, under the felony under federal law must be state Lopez, and struc- at 60. But as text law. See statutory provisions demonstrate, the the relevant ture of actually of also have been a crime defendant must convicted felony punishable as a federal law. The is itself possibility coupled that the conduct, defendant’s with mere conviction, record of could have author- facts outside conviction under federal law is insufficient to ized statutory satisfy the command that a noncitizen be “con- aggravated a[n] opportu- he victed before loses the 1229b(a)(3). nity to seek cancellation removal. 8 S. C. Appeals, The as well as the made Government, Court necessary logical assuming component error of that a anof satisfy is also sufficient its definition.

V that when a We hold defendant has been of a convicted simple possession offense that has not been enhanced based on the fact of a conviction, he has not been “convicted” 1229b(a)(3) “felony punishable” of a as such “under 924(c)(2). Act,” the Controlled Substances U. S. C. The prosecutor charge in Carachuri-Rosendo’s case declined to him as a has, therefore, recidivist. He been convicted of felony punishable under the Controlled Substances Act. judgment Appeals Court is reversed.

It is so ordered. concurring judgment. in the Justice Scalia, agree I with the Court that Carachuri-Rosendo’s 2005con- simple possession viction for of a tablet of Xanax in violation “aggravated felony” of Texas law is not conviction 1101(a)(43)(B). my reasoning under U. But is more *17 straightforward only Court’s, than the and so I concur in judgment. the Nationality Attorney Immigration

Under the Act, the an General cancel the removal of alien from the United provided any not been States the alien “has convicted of 1229b(a)(3). § felony.” aggravated There is no definition of but a “conviction” “convicted,” is defined

583 alien “formal the entered guilt by mean judgment 1101(a)(48)(A). The § term “aggravated felony” a court.” includes, offenses, other “a many among trafficking drug (as 924(c)]).” 1101(a)(43)(B). § § defined in U. S. C. crime [18 crime” is in turn A defined as fel- “drug trafficking “any the Act.” under Controlled Substances ony punishable 924(c)(2). §C. U. S. from the could be concluded provisions

It discussed above conviction for offense under that Substances the Act would under 8 Controlled qualify 1101(a)(43)(B). But § in U. S. C. sentence penultimate 1101(a)(43) that the statutory § definition of provides “aggra- to an offense described in this felony” “applies vated para- in violation of or State law.” whether Federal This graph that said, we confirms “a state offense whose language, the elements elements include felony punishable an Substances is aggravated felony.” [Controlled Act] Gonzales, (2006). Lopez v. U. S. in the case is problem that conceptual present 844(a)

crime defined 21 U. S. by C. Controlled Sub- Act, is mis- simple possession prohibited stances drugs, That demeanor. misdemeanor becomes “felony punishable Act” only Substances because the sen- Controlled factor of recidivism authorizes additional punishment tencing for a in one the criterion We held beyond year, felony. States, Almendarez-Torres United (1998), U. S. recidivism can be made a constitutionally sentencing crime, than an element of the factor rather fact despite sentence. And we it is used increase allowable that a that corre- Lopez “state possession crim[e] said “recidivist to” “felony possession” violatio[n]” spond[s] 844(a) within definitions used Con- “clearly fall[s] 924(c)(2).” §1101(a)(43)(B) and . . in . . . . gress 55, n. 6. that an alien has been all that to say But say (which is what of” “convicted 1229b(a)(3) nothing when he has been convicted requires) *18 punish- violation, second state misdemeanor more than could, for be- recidivism, ment which because of be extended yond year. by Just reason because, one of Almendarez- to Torres, the federal offense been raised misdemeanor has felony changing solely in- offense without its elements, penalty pursuant creasing “sentencing fac- its a recidivist question it does not follow that is asked when the tor”; someone has been of” state offense whether “convicted misdemeanor-become-felony, “corresponds” to the federal sought sentencing can be in A defend- the answer factors. sentencing factors, ant is not “convicted” of but charged In other elements of crime the indictment. sentencing words, a offense with a factor that misdemeanor punishment qualifies pur- for its to the level raises poses establishing “felony punishable of of a the elements qualify Act”; the Controlled Substances but does not determining purposes what the alien of elements has “convicted of.” been was of”

Here, Carachuri-Rosendo “convicted knowing possession crime of controlled substance with- prescription, a A misdemeanor under out a valid class Texas 481.117(a) §§ Safety law. Health & Code Ann. Tex. 2009). (b) (West Supp. Since elements that crime did crime recidivism, of his conviction did not include “correspond” the Controlled Substances Act 844(a). possession-plus-recidivism under 21 U. S. C. judgment. I concur reasons, For these in the Thomas, judgment. Justice concurring 924(c)(2) plain reading C. A of 18 U. S. identifies two re quirements that must be satisfied Carachuri-Rosendo’s “‘drug qualify trafficking crime’” state conviction ineligible for cancellation of that renders him removal:* 1229b(a) removal); (permitting §C. *See 8 U. S. cancellation 1229b(a)(3) “aggravated felony” of an from can- convicted (barring aliens 1101(a)(43)(B) removal); (defining “aggravated as “il- cellation second, the offense the offense must be must “First, felony; Controlled Substances punishment be capable (CSA).” (2006) Gonzales, 549 U. S. Aet Lopez *19 J., Carachuri-Rosendo’s offense of dissenting). (Thomas, was under [CSA],” “punishable simple 924(c)(2), second and thus satisfied the but his requirement, conviction in state court was crime misdemeanor. offense does bar him Accordingly, from obtaining of removal. cancellation Fifth Circuit felt constrained understandably by this decision in to rule In

Court’s otherwise. Lopez Lopez, held that “a Court state offense constitutes a ‘felony punish- able under if conduct proscribes punishable [CSA]’ Id., as a that federal law.” at 60 (emphasis added). Though Lopez addressed conviction under law that did not to a felony state correlate under the CSA, the Court’s rule the result in this preordained case: Court admits that its will reading subject

“[T]he alien defendant convicted of state misdemeanor to de- if his conduct was portation felony under the CSA. even if never Accordingly, convicted of an ac- tual an alien felony, defendant becomes eligible for de- based on portation hypothetical prosecution.” Id., J., at dissenting). (Thomas, the Court Today, engages jurisprudential gymnastics avoid I will not the law to fit the contort case. Lopez. But because was decided. Lopez wrongly proper reading id., 60-63, see text, the result supports reaches in the the Court I concur today, judgment. trafficking including drug trafficking in a .. .

licit controlled substance (as 924(c)(2) 924(c)])”); (defining S. [18 defined U. C. crime trafficking “any felony punishable to mean the Con- “drug crime” Act”). Substances trolled