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.