Lopez v. Gonzales; Toledo-Flores v. United States

Lopez’s and Toledo-Flores’s Argument

Toledo-Flores first contends that the lower court’s decision conflicts with Jerome v. United States, in which the Supreme Court decided that the forgery of a promissory note, a felony under Vermont law but not under federal law, did not qualify as a violation of the Bank Robbery Act. Toledo-Flores, at 242 (citing 318 U.S. 101 (1943)). Under Jerome, a court is required to assume that federal acts are not dependent upon state law, unless Congress makes a clear statement to the contrary when enacting a statute. Id. Toledo-Flores suggests that Jerome controls here, and that the only permissible way for the statute to be read is by applying the federal felony approach. Brief for Petitioner Toledo-Flores, at 43.

Lopez first argues that the failure to distinguish between mere drug possession crimes and “illicit trafficking” is erroneous because it ignores the clear difference between the two behaviors. Brief for Petitioner Lopez, at 13. As the American Civil Liberties Union points out, the term trafficking “necessarily involves commercial activity,” not mere possession. Brief for Amici Curiae, American Civil Liberties Union et al., at 12, Lopez v. Gonzalez (No. 05–547), Toledo-Flores v. United States (No. 05–7664). The American Bar Association also urges the court to read the provision narrowly, agreeing that the “[i]llicit trafficking aggravated felony provision [must be] limited to felonies that involve trafficking.” Brief of the American Bar Association as Amicus Curiae, at 6, Lopez v. Gonzalez (No. 05–547), Toledo-Flores v. United States (No. 05–7664).

Both Lopez and Toledo-Flores then focus on the definition of “drug trafficking crime,” which includes the qualifying phrase “a crime for which the person may be prosecuted in a court of the United States.” 18 U.S.C. § 924(c)(1). Lopez and Toledo-Flores argue that this language limits the application of the definition to federal offenses, particularly given the fact that other provisions of § 924 mention state offenses specifically when they are meant to be included. Brief for Petitioner Lopez, at 14. Lopez and Toledo-Flores also explore the language used by Congress while they made changes to Title 18 in 1988, and suggest that Congress intended to clarify that “possession with intent to distribute a controlled substance” is a drug trafficking crime; Congress did not, however, intend to expand drug trafficking crime to include state offenses “that are neither drug trafficking crimes nor federal felonies.” Id., at 15.

Finally, both Lopez and Toledo-Flores point to Public Law no. 99-603, § 115, 100 Stat. 3359, 3385 (1986), which establishes that all federal law dealing with immigration must be interpreted to apply equally to all non-citizens throughout the country. Id., at 16. They argue that the revisions to the INA create an ambiguous legislative history that makes it difficult to discern a single legislative intent. Id., at 37. Under common rules of statutory construction, where immigration law includes ambiguous language, that ambiguity should be resolved in favor of non-citizens. Brief for Petitioner Toledo-Flores, at 37–38.

In an effort to reduce the variations in law that have arisen under the current approach, Lopez and Toledo-Flores advocate for the federal felony approach that would limit the term “aggravated felony” to crimes that are felonies under law. Brief for Petitioner Toledo-Flores, at 40–41.They contend that this interpretation of the law will lead to more uniform treatment of non-citizens throughout the country, and that the state felony approach may in fact raise constitutional issues due to the disparate outcomes that it creates for non-citizen offenders in different states. Id. at 42. They argue that under the current system, non-citizens in one state may be found to have committed “drug trafficking crime” for the same conduct punished far less stringently in a neighboring state. Id. at 40-41.

The Government’s Argument

As a threshold matter, the government argues that Toledo-Flores’s case is moot, because Toledo-Flores has based his challenge on the aggravated-felony enhancement of his prison sentence, the full term of which he has already served. Brief for Respondents, at 8. The government argues that since a ruling in Toledo-Flores’s favor will not make a difference in his sentence, he has no standing to bring his claim before the court. Id.

Second, the government contends that any drug crime that is a felony under federal or state law and also punishable under the Controlled Substances Act should be considered an aggravated felony for the purposes of the INA and the FSG. Id., at 8. They point out that the definition of a “drug trafficking crime” in § 924(c)(2) specifically includes eligible offenses under the Controlled Substances Act “whether in violation of Federal or State law.” Id., at 13. The government focuses on the plain meaning of the language in each of the relevant statutes, and interpret the phrase “punishable under the Controlled Substances Act” in § 924(c)(2) to mean any conduct that is “liable to” or “capable of being punished by” the law, rather than conduct that has already led to a conviction under federal law. Id., at 17–18. They address the qualitative difference between “trafficking” and “possession” by arguing that the presumption established in Jerome is overcome by the specificity of Congress’s language in the INA. Id., at 22–24. They point out other parts of the statute where Congress distinguished between state and federal offenses as well, and suggest that where Congress has in one Act used precise language in some sections and general language in others, it is standard to interpret this as a deliberate congressional decision. Id., at 18.

Furthermore, the government points out that the definition of a “felony,” established under Title 18, focuses on the gravity of a particular crime, as measured by the length of the sentence imposed: “a felony is any crime for which the sentence is one year or more.” Id., at 9. As a result, if an individual is convicted of a drug crime and sentenced to any amount of time greater than one year, his crime falls within the range of crimes that Congress meant to reach, regardless of whether the crime would be classified a “felony” under federal or state law. Id.

Third, the government argues that including state-law felonies in the definition of “felony” will comport with congressional intent. Id., at 42–43. They point to statements made by members of Congress regarding the 1990 INA amendment, in concert with the language of the changes, to suggest that they were attempting to “cover all drug felonies”—both state-law and federal-law offenses—in an effort to “eradicate the demand for illicit drugs, not just the supply.” Id.

Finally, the government claims that that the federal felony approach favored by Lopez and Toledo-Flores introduces arbitrariness and inequity of its own. Id., at 9. For example, in a state with drug laws similar to the federal laws, possession of anything more than a personal-use quantity of marijuana would constitute an aggravated felony. Id. If the neighboring state did not follow the same scheme, a similarly-situated individual could be arrested with a substantially larger quantity of marijuana and, although he would likely be subject to a longer sentence, he still might not have committed an aggravated felony. Id. The government further argues that any constitutional concerns raised by Lopez and Toledo-Flores are unfounded, since the lack of uniformity in the state felony approach derives from variations in state law that are a natural and necessary part of the federal system. Id. at 47–48.