Moncrieffe v. Holder (11-702)

argument 11-702

Moncrieffe v. Holder

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the core legal question about Moncrieffe’s conviction and deportability?

John G. Roberts 0:01

We will hear argument first this morning in case 11702, Moncrie versus Holder. Mr. Goldstein?

Mr. Goldstein 0:07

Mr. Chief Justice, thank you very much. May it please the court. Today's undercard is an immigration case. Adrian Moncrief was convicted of possession with intent to distribute marijuana under Georgia law. The question in the case is whether he was thereby convicted of a controlled substances offence, which is a deportable offence, but also an aggravated felony of illicit trafficking in drugs, which would mean that the Attorney General has no discretion to cancel his removal. Now everyone agrees that under the Georgia statute there is going to be some conduct that would be a federal felony. But it's also undisputed that the Georgia statute regularly involves prosecutions that would be federal misdemeanors.

Mr. Goldstein 0:48

So that excuse

Elena Kagan 0:49

me, you use that word regularly. Do you have statistics on that? Were they provided in the briefs?

Mr. Goldstein 0:54

They were not. We did not th we attempted very hard to collect them. This is the information I can give you about federal and state prosecutions of marijuana cases in the United States. In the state system, the most recent available data it was published by the Department of Justice in two thousand six, but we have no reason to believe it's changed materially. In two thousand six there were roughly seven hundred and fifty thousand prosecutions in the states for marijuana offenses. By contrast, in the federal system we have data from two thousand ten. And we have two different kinds of data here that it's a little bit more granular, and that is for prosecutions under eight forty one B one, which is the trafficking provision, there were six thousand two hundred cases.

Mr. Goldstein 1:40

For prosecutions under eight forty one B four, which is the provision we say you ought to look at here, and eight forty four, which is the possession provision, combined, there were only Ninety three prosecutions in two thousand ten. And what we think that illustrates is that there is a massive amount of activity in the States doing things that show that this in this case is perfectly commonplace, we think. It is consistent with the other cases that we have seen published by the BIA. Adrian Moncrief possesses

Elena Kagan 2:09

it is a massive amount of conduct that that the statute contemplates, the statutory schemes contemplate. I just didn't hear I apologize.

Mr. Goldstein 2:15

Yes, Justice Kennedy, that's right. The Georgia statute, which just refers to possession with intent to distribute contemplates both social sharing of marijuana. This case, for example, one point three grams of marijuana, which is less than

Unknown 2:27

Mr. Colstein, when you say this case, is there any proof in the record that there was a small amount and no re remuneration?

Mr. Goldstein 2:36

Yes, Justice Ginsburg. Although this is we believe the case is proceeding under the categorical approach, the answer to your question is yes. So let me take you to two places. One is going to be at the back of the blue brief. Where we have the chemist report. So page nineteen, this is from the Right uh the record in the immigration proceedings. And on page nineteen of the appendix to our blue brief, we just agreed because there was so little record material that we wouldn't have a joint appendix in the case, we just published it at the end of our brief. It says material weight less than one ounce, approximate weight is one point three grams. And for those of us who've been fortunate enough not to experience the drug laws a lot, that's less than half the weight of this penny.

Mr. Goldstein 3:15

So it's it's I think everybody agrees a small amount. Now on the question of no remuneration, what I have to offer you is the Georgia step. Excuse me, I don't understand

Antonin Scalia 3:23

materially it says less than one ounce. Yes. Parenthesis, approximate weight is one one oh I see one point three

Mr. Goldstein 3:29

grams. That's that's very, very, very, very little. So then on the question of remuneration, and and I should just step back and explain the reason we're talking about this is that the Federal Misdemeanor Provision 841B four says that it's not a felony, and thus it wouldn't be an aggravated felony if it's a small amount and no remuneration.