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The Impact of Mellouli v. Lynch
on Minnesota Drug Crimes
April 1, 2016
Presenters
> Ami Hutchinson (2L)
> Kelley Keefer (2L)
> Nicholas Anderson (3L)
> Laura Heinrich, Hennepin County Public
Defenders
Team Mellouli Goes to Washington
Controlled Substance Ground of
Removability
> INA 237(a)(2)(B)(i):
– Any alien who at any time after admission has been
convicted of a violation of . . . any law or regulation of
a State . . . relating to a controlled substance (as
defined in section 802 of title 21), other than a single
offense involving possession for one’s own use of 30
grams or less of marijuana, is deportable.
Moones Mellouli Comes Home
The Court Doubles Down on the
Categorical Approach
State Criminal Statute
Federal Definition
Breakdown of Minnesota Drug Crimes
under Mellouli
Offenses that should
not be removable
under Mellouli
Drug Paraphernalia
Removable Offenses
under Mellouli
The Gray Zone
First & Second degree
violations (sale &
possession)
Third degree sale (but
carries other risks!)
Simulated Substances
Third degree possession Fourth degree violations
Fifth degree violations
Other controlled
substance violations
MINNESOTA CONTROLLED SUBSTANCES CRIMES
REFERENCING DRUG PARAPHERNALIA
> Possession of Drug Paraphernalia: Minn. Stat. § 152.092
– The crime of possession of drug paraphernalia
criminalizes the knowing or intentional use or
possession of drug paraphernalia.
> Manufacture or Delivery of Drug Paraphernalia: Minn. Stat. §
152.093
– It is unlawful for any person knowingly or
intentionally to deliver, possess, or manufacture
drug paraphernalia for delivery.
What is Drug Paraphernalia?
Drug paraphernalia. (a) Except as otherwise provided in
paragraph (b), “drug paraphernalia” means all
equipment, products, and materials of any kind,
except those items used in conjunction with permitted
uses of controlled substances under this chapter or the
Uniform Controlled Substances Act, which are knowingly
or intentionally used primarily in (1) manufacturing a
controlled substance, (2) injecting, ingesting, inhaling,
or otherwise introducing into the human body a
controlled substance, (3) testing the strength,
effectiveness, or purity of a controlled substance, or (4)
enhancing the effect of a controlled substance.
Simulated Controlled Substances
> Minn. Stat. § 152.097
•
Minn. Stat. § 152.097 criminalizes the manufacture,
sale, transfer, or attempt to sell, transfer or deliver a
noncontrolled substance when that substance is (1)
expressly represented as a controlled substance; (2)
of such a nature or appearance that the recipient will be
able to sell, transfer or deliver the substance as a
controlled substance; (3) of such a nature that it
would lead a reasonable person to believe the
substance was a controlled substance.
Practice Tips
> Criminal Defense Attorneys
•
Try and keep the record clean by not identifying any specific controlled
substance on the record of conviction.
•
Stipulate only to “Minnesota Controlled Substance”
> Immigration Attorneys:.
– If no specific controlled substance is listed, the paraphernalia and simulated
substance offenses are overbroad and not a categorical match to the list of
federally controlled substances.
– If a specific controlled substance is listed, look to see if the controlled
substance listed is also listed on the list of federally controlled substances.
Minnesota Controlled Substance Crimes
Referencing Specific Controlled Substances
> First Degree Sale: Minn. Stat. § 152.021 Subd. 1
– The crime of First-Degree sale criminalizes sales of (1) ten grams or more of mixtures
containing cocaine, heroin, or methamphetamine, (2) 50 grams or more of one or
more mixtures containing a narcotic drug other than cocaine, heroin, or
methamphetamine; (3) 50 grams or more of a mixture containing amphetamine,
phencyclidine, or hallucinogen or 200 or more dosage units; or (4) 50 kilograms or
more of a mixture containing marijuana or Tetrahydrocannabinols (reduced to 25
grams or more in a school zone, parks zone, public housing zone, or drug treatment
facility).
> First Degree Possession: Minn. Stat. § 152.021 Subd. 2
> Second Degree Sale: Minn. Stat. § 152.022 Subd. 1
> Second Degree Possession: Minn. Stat. 152.022 Subd. 2
> Third Degree Possession: Minn. Stat. § 152.023
Practice Tips
> Criminal Defense Attorneys
• Criminal attorneys should attempt to list only
the category of drug, i.e. narcotic or
hallucinogen when applicable.
> Immigration Attorneys
• If only the category of drug is listed in the
record of conviction, immigration attorneys
should determine if the Minnesota definition
of the category is overbroad.
Minnesota Drug Crimes that Reference
Schedules not Substances
• Fifth-Degree Possession and Sale: Minn.
Stat. § 152.025
• Fourth-Degree Possession or Sale: Minn.
Stat. § 152.024
• Third-Degree Sale: Minn. Stat. § 152.023
• Other Controlled Substance Offenses: Minn.
Stat. § 152.027
Schedule-Based Offenses
> Fifth-Degree Possession: unlawful
possession of “ . . . a controlled substance
classified in Schedule I, II, III, or IV, except
a small amount of marijuana.”
Schedule-Based Offenses
> The identity of a substance is not a
required statutory element.
> Elements:
– (1) knowing
– (2) possession of a controlled substance
– (3) within the schedule(s) listed in the
statute.
Applying Mellouli
> State schedule overbroad? There
should not be immigration
consequences.
Schedule I, II, III,
or IV
Federally
Controlled
Substances
How Do We Define “Element”?
> Defined by state law sources
– State court precedent
– Statutory language
– Jury instructions and other authoritative forms
Jury Instructions
> Fifth-degree possession: First, the
defendant unlawfully possessed one or
more mixtures containing __________ (A
Schedule I, II, III or IV controlled
substance except a small amount of
marijuana).
Jury Instructions
> First-degree possession: one or more
mixtures of a total weight of five hundred
grams or more of __________ (the
narcotic charged in the complaint).
Making Sense of Minn. Caselaw
> “Knowing” mens rea actual ID not
required
> Substance ID may be required in specific
situations
– Sufficiency of evidence
– Burden of proof
> Not universally required
The Battle for Facts
Facts
Elements
The Modified-Categorical Approach
Statute
Offense A
(any object with Kansas
C.S.)
Offense B
(Adderall socks)
The Modified-Categorical Approach
>The “record of conviction”
– The Charging Documents
– Written Plea Agreements
– Plea Colloquies
– A Judge’s Explicit Factual Findings
Applying the Modified Categorical
Approach to Fifth-Degree Possession
STEP ONE
>Fifth-degree controlled substance crimes
are divisible between possession and sale:
– Subdiv 1: Sale crimes; or
– Subdiv 2: Possession crimes
Applying the Modified Categorical
Approach to Fifth-Degree Possession
STEP TWO
>Fifth-degree possession is divisible by:
– (a)(1)Unlawful possession of a Schedule I,
II, III, or IV substance, except a small
amount of marijuana;
– (a)(2)Unlawful procurement or possession of
a controlled substance by fraudulent means
Applying the Modified Categorical
Approach to Fifth-Degree Possession
Schedule I, II, III,
or IV
Federal Controlled
Substances
The Modified Categorical
Approach in the Eighth Circuit
STEP THREE(?)
> Schedule I;
> Schedule II;
> Schedule III; or
> Schedule IV;
The Modified Categorical
Approach in the Eighth Circuit
Federally Controlled
Substances
Minn. Schedule I
The Modified Categorical
Approach in the Eighth Circuit
STEP FOUR(?)
>Review of the record of conviction to
determine what specific substance a
defendant actually possessed.
The Modified Categorical
Approach in the Eighth Circuit
The Modified Categorical Approach
in the Eighth Circuit
Federally Controlled
Substances
Alphamethadol
Immigration Practice Tips
> Oppose divisibility beyond the statutory
language that lists schedule(s)
– Emphasize jury instructions/case law
> At a minimum, try to contain divisibility to a
specific schedule if the schedule involved
in your client’s conviction is overbroad
An Added Layer of Protection: Scrub
the Record of Substance ID
> Whenever possible, remove mention of
the substance from:
– The Charging Documents
– Written Plea Agreements
– Plea Colloquies
– A Judge’s Explicit Factual Findings
Strategies in Criminal Court
Low-Level Marijuana Crimes =
Different Set of Rules
> One-time exception for “personal use”
marijuana possession.
– Requires a circumstance-specific approach.
– NOT categorical.
> SCOTUS
- 30-grams is a useful guideline.
Underlying Facts are NOT Off Limits
> Bring on the Facts
– Police Reports
– Witness Statements
– Trial Transcripts
– Other Relevant Evidence
The Removal Exception and
Minnesota Marijuana Convictions
>Possession of >1.4 grams in a Motor
Vehicle: Minn. Stat. § 152.027(3).
>Possession of ≤ 42.5 grams: Minn. Stat. §
152.027(4).
Immigration Practice Tips
> Weight <30 grams?
– EMPHASIZE IT.
> Weight >30 Grams?
– CONTEST EVIDENCE.
– DHS has clear and convincing burden.
> Petty possession + Marijuana in MV =
categorically personal use offenses.
– 30-gram suggested limit is not binding.
Practice Tips for Defense Attorneys
> Negotiate a non-drug charge
> Include weight in plea agreement or
complaint if below 30g
> Exclude weight from the record if over 30g
Available Resources
Resource 1: Mellouli Settlement Agreement
Resource 4: Matter of Martinez-Espinoza
•2015 case that was live and in our jurisdiction at the time Mellouli went to trial.
•Specifically notes that the Minnesota list of controlled substances are overbroad.
•Extends Mellouli to inadmissibility.
Resource 3: Evolution of Minnesota Controlled Substances Schedules
•Provides a list of all substances on the Minnesota controlled substances
schedules for any given year. Additions to the previous schedules are highlighted
in yellow.
Resource 4: Federally Controlled Substances (Schedules I-V) 1970-2015
•Spreadsheet of the list of federally controlled substances from 1970-2015
(prepared by Harvard’s Immigration and Refugee Clinical Program)