Lopez and Toledo-Flores Preview

The following argument preview was written by Sarah Rispin of Akin Gump.

In the first argument tomorrow, the Court will hear a pair of cases, No. 05-547, Lopez v. Gonzales, and No. 05-7664, Toledo-Flores v. United States, addressing the meaning of the phrase “any felony punishable under the [Federal] Controlled Substances Act.” The phrase carries considerable significance because it is used to define the term “drug trafficking crime” in 18 U.S.C. § 924(c)(2), conviction for which counts as an “aggravated felony conviction” (thereby subjecting the defendant to more stringent penalties) under both the Immigration and Nationality Act (INA) and the federal Sentencing Guidelines.

Robert Long of Covington & Burling will argue on behalf of petitioner Lopez, while Timothy Crooks of the Office of the Federal Public Defender for the Southern District of Texas will argue on behalf of petitioner Toledo-Flores. Deputy Solicitor General Edwin Kneedler will argue on behalf of the United States and Alberto Gonzales.

The Second, Third, Sixth, and Ninth Circuits have interpreted the phrase “any felony punishable under the Controlled Substances Act” to mean, in essence, “any felony punishable [as a felony] under the Controlled Substances Act.” By contrast, the Fifth and Eighth Circuits, in Toled–Flores and Lopez, respectively, have interpreted the phrase to mean “any [state or federal] felony [that is also] punishable [in some fashion] under the Controlled Substances Act.” This harsher reading has stark consequences for defendants, such as Lopez and Toledo-Flores, convicted of simple possession of illegal drugs, which is a felony at the state level but a misdemeanor at the federal level.

In Lopez’s case, because the Eighth Circuit decided that his possession conviction was, under the harsher reading, a “drug trafficking crime” and therefore an “aggravated felony,” he is ineligible for a waiver of a removal order in immigration proceedings against him. In Toledo-Flores’s case, because the Fifth Circuit decided that a prior possession conviction was an aggravated felony, his mandatory sentencing range under the Sentencing Guidelines for later illegally entering the United States increased from 18-24 months to 33-41 months.

The Supreme Court granted certiorari and consolidated the two cases for an hour-long oral argument. Counsel for Lopez (brief here) and Toledo-Flores (brief here) argue that their clients were not guilty of “drug trafficking offenses” as defined by 18 U.S.C. 924(c)(2), because the phrase “any felony punishable under the Controlled Substances Act” only refers to federal felonies. Besides, they add as a matter of common sense, simple possession just does not amount to trafficking. The ACLU and American Bar Association have filed amicus briefs in support of this position in the case (ACLU available here and ABA here).

The government argues that “any felony punishable under the Controlled Substances Act” means any drug crime that is (a) characterized as a felony, whether at the state or federal level, and (b) is punishable under the Controlled Substances Act. The government adds that Congress, when attaching consequences to felony convictions in several statutes, has not limited itself to federal felonies, but more generally to conduct which is punished with a year of prison or more.

These cases will decide a split that has opened between the Fifth and Eighth Circuits, and the Second, Third, Sixth, and Ninth Circuits. It will also provide more uniform consequences under the INA and Sentencing Guidelines for aliens facing removal and defendants facing jail time with prior drug possession convictions.