A Felony, I Presume?: 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings

Recently federal circuit courts have split on what to do in immigration proceedings when a state law drug conviction is written broadly enough to include conduct that, had the charges been brought under federal law, might have been punished as only a misdemeanor under 21 USC § 841(b)(4). The difficulty arises because § 841(b)(4) is a mitigating factor, as opposed to an element of the crime, and therefore criminal defendants are sentenced under the felony provision by default. In other words, defendants tried under federal law are required to produce evidence in order to be sentenced under the misdemeanor provision. This creates a problem in T2 immigration proceedings in which the noncitizen’s record includes a T1 state law drug conviction: in his T1 trial, the noncitizen might not have had any reason (or opportunity) to provide the evidence that would have entitled him to a misdemeanor sentence had he been tried in federal court. This comment argues that the circuit courts addressing this issue have failed to give adequate attention to the Supreme Court’s guidance regarding the categorical approach, as well as the original reasons for using the categorical approach in immigration proceedings. This guidance suggests that courts should analyze crimes differently during collateral proceedings at T2 than if they were adjudicating criminal sentencing proceedings at T1. The framework adopted by this Comment allows the immigration judge to look into the record of conviction under broad statutes to the extent he can find facts that were necessarily decided by the T1 fact finder. But on an empty record — a criminal trial record that indicates neither the quantity nor remunerative nature of the drug transaction — state law drug convictions should be presumed to correspond to the CSA’s misdemeanor provision.