But It’s Just A Misdemeanor

When the Supreme Court decided that the duty to explain immigration consequences fell not on the judge taking the plea, but on defense counsel in Padilla v. Kentucky, it was a trap in the making.  Not that any half-competent lawyer wouldn’t do his best to make his client fully informed anyway, but do what, exactly?  How hard could it be to explain immigration consequences to a defendant taking a plea?

The 5th Circuit in United States v. Ramirez demonstrates just how hard it can be, at least if you want to get it right.

Efrain Hernandez Ramirez pled guilty to one count of illegal reentry following removal and at his sentencing, the district court applied an eight-level enhancement based on a prior conviction for an aggravated felony. The aggravated felony in question was a New York state misdemeanor conviction for third-degree sexual abuse of a fifteen-year-old girl. Ramirez appeals, arguing that his misdemeanor conviction cannot be an aggravated felony. For the following reasons, we AFFIRM.

Let’s eliminate the obvious problem up front: The words “aggravated felony” in the United States Sentencing Guidelines, §2L1.2(a), comes from 8 U.S.C. §1101(a)(43) defining the two words as “any damn thing we want it to be.”  The historic definition of a felony is a crime punishable by more than a year in prison. A misdemeanor, therefore, is defined a crime punishable by one year or less in jail.  An “aggravated misdemeanor” means whatever.

Doug Berman at Sentencing Law and Policy nailed the this problem when he quoted Dodgson’s Through the Looking Glass:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

The problem arose in the early days of congressional marketing, when they enacted the Immigration and Nationality Act of 1988, requiring exclusion or deportation of non-citizens who were convicted of “aggravated felonies.”  By using the phrase, which made it sound like the only people to be affected were really bad dudes, it made the law more palatable. After all, what of the non-citizens who arrived as infants, spent their entire lives here, had jobs and families, married citizens, and then were convicted of a crime half a century later?  Should they be deported?

Well, yeah, if they were convicted of an “aggravated felony.”  See how that sounds?

The problem was that as evil and ominous as “aggravated felony” sounded, and as well as it played to the public, Congress pulled a shrewd move, creating massive confusion that lasts to this day. And Congress, because it can’t leave bad enough alone, has added to the mess by modifying the list of “aggravated felonies” by increasing it ever since.

The 5th Circuit decision in Ramirez isn’t particularly exceptional, holding that the word “felony” doesn’t mean felony, and that a crime characterized under state law as a misdemeanor is a felony if it falls on the list. When Ramirez copped the plea, which carried a maximum sentence of 3 months, he no doubt expected that the deal he took wouldn’t come back to bite him in the butt later because it was clearly a misdemeanor.  And doesn’t that mean anything?  Bad move.

In one respect, the rationale makes perfect sense.  In enacting a law that covers convictions meted out in state courts under state law, Congress couldn’t possibly deal with the morass of more than 50 jurisdictions, all of which were subject to change whenever a state lege decided to start messing with the penal laws.

What if a state, say Tennessee, decided to make it a felony to teach evolution in a public school?  Not so crazy, right? Should that bind Congress’ hands?  On the flip side, what if a state decided to decriminalize marijuana, and reduced its sentence to less than a year, categorizing it as a misdemeanor?  Again, should that bind Congress’ hands?  Congress had no say in the sentence or category, and meant for anyone engaged in drug dealing to be deported as an “aggravated felon,” even if the state decided otherwise.

A great analogy was offered by a commenter to Doug’s post:

There is, of course, nothing in the constitution that precludes Congress or a federal judge from deciding that a state offense is serious enough to show that a recidivist is deserving of additional punishment even though the state thinks that the offense should be treated less seriously in the state court system.

To those who think contrarywise, imagine a rather perverse state that chooses to label the unlawful setting of fires as murder and the unlawful killing of another as arson.  Would it be impermissible for other states and federal governments to indicate that they consider these “arson” homicides as fitting in what they mean by murder if their laws prohibit a person with a prior murder conviction from getting parole.

Crazy as the example may seem, the point is well made that states can use whatever label they choose, just as the federal government did when it came up with the marketing strategy of only deporting people who committed “aggravated felonies.”

This rationale, however, does nothing to explain and inform a defendant as to the collateral consequences of a plea.  For most people, lawyers included, words have meaning, and when a guy pleads to a misdemeanor, it’s hardly unfair of him to think that it is not, by definition, a felony.

As for why Congress decided to enhance its marketing strategy by using the word “aggravated” in front of the utterly meaningless use of the word “felony,” at least that part is more comprehensible: it is a constant source of aggravation for anyone constrained to deal with this misbegotten law.

8 comments on “But It’s Just A Misdemeanor

  1. mirriam

    We have this issue (and I’ve written about it a lot) in Maryland where we have common law misdemeanors that carry penalties as high as life (conspiracy to commit murder is a misdemeanor) And, the thing is if you have only ever practiced in Maryland state court you actually tell your client “Don’t worry, none of your civil rights are implicated because it is a misdemeanor.” This happens most often when clients plead to conspiracy to distribute drugs. Hey! It’s a misdemeanor! And then they are either deported or they are prevented from having a gun or they get a ridiculously increased sentence in federal court. The fourth circuit just dealt with this issue with our Assault 2nd since it was considered an Ag Fel in certain instances (courts were saying it was divisible) but clients were saying but it is a misdemeanor (carries a sentence of up to 20 years) The fourth circuit just said it isn’t divisible and since it can be committed in multiple ways including without violence (as long as you get the appropriate sentence) it isn’t an Ag Fel.

    The point is yes, this is a very real issue but people who practice locally won’t know the difference.

    1. SHG Post author

      It was very thoughtful of you to eventually get to the point. Not that things happening in Maryland aren’t fascinating, because, you know, Maryland.

  2. Paul B.

    A related issue arises with first offender, or deferred prosecution, or whatever a state calls it when one enters a plea and goes on probation for a while but it is not considered a conviction under the state’s laws. Fed. immigration law says it is a conviction if there is any acknowledgement of guilt, or plea of guilty, regardless of what state law classifies as a conviction. I’ve had to clean up a number cases after the fact, where the attorney who represented at the time of the plea did not know the immigration consequences of first offender treatment (and found out the hard way).

  3. Matt James

    I’m on the fence on this one regarding the duty to explain. Yes, the law is confusing. Yes, some one with a basic knowledge of felony/misdemeanors would be misled. But criminal defense attorneys are supposed to be experts in criminal law. But, as the 5th Circuit points out, if you look at the statute, it is pretty clear. So when a client asks an attorney— hopefully one who specializes in criminal law— a criminal law question, is it too much to expect the attorney might look it up instead of assuming the common definition?

    1. SHG Post author

      But criminal defense attorneys are supposed to be experts in criminal law

      This is a dangerous statement. CDLs are supposed to be competent in the performance of their duties, but expertise is a totally different animal. The best DUI lawyer in the world need not have a clue about collateral consequences of drug convictions. Be very careful about ascribing things to lawyers far beyond their level or need to know.

      As for the 5th Circuit referring to the law, I agree that it was all pretty much there for the asking, and I suspect by the time of sentence below the lawyer was well aware of the law and the problems he faced. The problem is that the defendant had long since copped the plea and was stuck with it, and now the lawyer was grasping at straws to find a way to get his client out of a deep, dark hole. The problem occurred at the time of plea, but then, immigration is one of many collateral consequences and, frankly, there are lawyers (as Mirriam notes) who just don’t have a sufficiently firm grasp of the consequences to adequately advise their clients. They may be perfectly competent at criminal defense, but not “experts” at every aspect of law that might eventually come into play.

  4. Rob Robertson

    Gee, the agg felony definitions at 8 USC 1101 (a)(43)(a-u) aren’t all that hard. There’s only 26 of them, many with subparts, and are, gosh darnit, pretty self explanatory. It all those lawyers out there convincing judges that theft isn’t really theft (Soliman v Gonzales (4th Cir)), violent crimes aren’t violent (US v. Johnson (USSCT)) , that selling drugs isn’t really selling drugs (Moncrieffe v. Holder (USSCT)). I mean really. Heck, I done figured them out over the last 15 years or so. You don’t really need that spare time.

  5. Pingback: New York Corrects The Padilla Flaw (But So What?) | Simple Justice

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