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Drug Possession as an Aggravated Felony

Lopez v. Gonzales, 549 U.S. 47 (2006)

  • On January 8, 2007, the Supreme Court granted a writ of certiorari, vacated the judgment, and remanded the case to Eighth Circuit for further consideration in light of Lopez v. Gonzales. The case is Tostado-Tostado v. Carlson, No. 06-6766.
  • On December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA § 101(a)(43)(B) ("drug trafficking crimes"). In unqualified terms, the Court said, “Unless a state offense is punishable as a federal felony it does not count.” The Court rejected the government’s broad interpretation of what constitutes an aggravated felony and resolved a circuit split. Justice Souter authored the majority opinion, from which Justice Thomas dissented. See here to read the opinion.
  • The Court also dismissed the writ of certiorari in the companion case, Toledo-Flores v. U.S., No. 05-7664, 549 U.S. ___ (2006). Toledo-Flores addressed the aggravated felony issue in the criminal sentencing context. The Court noted that the writ of certiorari was improvidently granted.