Moncrieffe v. Holder

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MONCRIEFFE v. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 11–702. Argued October 10, 2012—Decided April 23, 2013

Under the Immigration and Nationality Act (INA), a noncitizen con-

victed of an “aggravated felony” is not only deportable, 8 U. S. C.

§1227(a)(2)(A)(iii), but also ineligible for discretionary relief. The

INA lists as an “aggravated felony” “illicit trafficking in a controlled

substance,” §1101(a)(43)(B), which, as relevant here, includes the

conviction of an offense that the Controlled Substances Act (CSA)

makes punishable as a felony, i.e., by more than one year’s impris-

onment, see 18 U. S. C. §§924(c)(2), 3559(a)(5). A conviction under

state law “constitutes a ‘felony punishable under the [CSA]’ only if it

proscribes conduct punishable as a felony under that federal law.”

Lopez v. Gonzales, 549 U. S. 47, 60.

Petitioner Moncrieffe, a Jamaican citizen here legally, was found

by police to have 1.3 grams of marijuana in his car. He pleaded

guilty under Georgia law to possession of marijuana with intent to

distribute. The Federal Government sought to deport him, reasoning

that his conviction was an aggravated felony because possession of

marijuana with intent to distribute is a CSA offense, 21 U. S. C.

§841(a), punishable by up to five years’ imprisonment, §841(b)(1)(D).

An Immigration Judge ordered Moncrieffe removed, and the Board of

Immigration Appeals affirmed. The Fifth Circuit denied Moncrieffe’s

petition for review, rejecting his reliance on §841(b)(4), which makes

marijuana distribution punishable as a misdemeanor if the offense

involves a small amount for no remuneration, and holding that the

felony provision, §841(b)(1)(D), provides the default punishment for

his offense.

Held: If a noncitizen’s conviction for a marijuana distribution offense

fails to establish that the offense involved either remuneration or

more than a small amount of marijuana, it is not an aggravated felony

2 MONCRIEFFE v. HOLDER

Syllabus

under the INA. Pp. 4–22.

(a) Under the categorical approach generally employed to deter-

mine whether a state offense is comparable to an offense listed in the

INA, see, e.g., Nijhawan v. Holder, 557 U. S. 29, 33–38, the nonciti-

zen’s actual conduct is irrelevant. Instead “the state statute defining

the crime of conviction” is examined to see whether it fits within the

“generic” federal definition of a corresponding aggravated felony.

Gonzales v. Duenas-Alvarez, 549 U. S. 183, 186. The state offense is

a categorical match only if a conviction of that offense “ ‘necessarily’

involved . . . facts equating to [the] generic [federal offense].” Shep-

ard v. United States, 544 U. S. 13, 24. Because this Court examines

what the state conviction necessarily involved and not the facts un-

derlying the case, it presumes that the conviction “rested upon [noth-

ing] more than the least of th[e] acts” criminalized, before determin-

ing whether even those acts are encompassed by the generic federal

offense. Johnson v. United States, 559 U. S. 133, 137. Pp. 4–6.

(b) The categorical approach applies here because “illicit trafficking

in a controlled substance” is a “generic crim[e].” Nijhawan, 557 U. S.,

at 37. Thus, a state drug offense must meet two conditions: It must

“necessarily” proscribe conduct that is an offense under the CSA, and

the CSA must “necessarily” prescribe felony punishment for that

conduct. Possession of marijuana with intent to distribute is clearly

a federal crime. The question is whether Georgia law necessarily

proscribes conduct punishable as a felony under the CSA. Title 21

U. S. C. §841(b)(1)(D) provides that, with certain exceptions, a viola-

tion of the marijuana distribution statute is punishable by “a term of

imprisonment of not more than 5 years.” However, one of those ex-

ceptions, §841(b)(4), provides that “any person who violates [the stat-

ute] by distributing a small amount of marihuana for no remunera-

tion shall be treated as” a simple drug possessor, i.e., as a

misdemeanant. These dovetailing provisions create two mutually ex-

clusive categories of punishment for CSA marijuana distribution of-

fenses: one a felony, the other not. The fact of a conviction under

Georgia’s statute, standing alone, does not reveal whether either re-

muneration or more than a small amount was involved, so

Moncrieffe’s conviction could correspond to either the CSA felony or

the CSA misdemeanor. Thus, the conviction did not “necessarily” in-

volve facts that correspond to an offense punishable as a felony under

the CSA. Pp. 6–9.

(c) The Government’s contrary arguments are unpersuasive. The

Government contends that §841(b)(4) is irrelevant because it is mere-

ly a mitigating sentencing factor, not an element of the offense. But

that understanding is inconsistent with Carachuri-Rosendo v. Hold-

er, 560 U. S. ___, which recognized that when Congress has chosen to

Cite as: 569 U. S. ____ (2013) 3

Syllabus

define the generic federal offense by reference to punishment, it may

be necessary to take account of federal sentencing factors too. The

Government also asserts that any marijuana distribution conviction

is presumptively a felony, but the CSA makes neither the felony nor

the misdemeanor provision the default. The Government’s approach

would lead to the absurd result that a conviction under a statute that

punishes misdemeanor conduct only, such as §841(b)(4) itself, would

nevertheless be a categorical aggravated felony.

The Government’s proposed remedy for this anomaly—that noncit-

izens be given an opportunity during immigration proceedings to

demonstrate that their predicate marijuana distribution convictions

involved only a small amount of marijuana and no remuneration—is

inconsistent with both the INA’s text and the categorical approach.

The Government’s procedure would require the Nation’s overbur-

dened immigration courts to conduct precisely the sort of post hoc in-

vestigation into the facts of predicate offenses long deemed undesira-

ble, and would require uncounseled noncitizens to locate witnesses

years after the fact.

Finally, the Government’s concerns about the consequences of this

decision are exaggerated. Escaping aggravated felony treatment does

not mean escaping deportation, because any marijuana distribution

offense will still render a noncitizen deportable as a controlled sub-

stances offender. Having been found not to be an aggravated felon, the

noncitizen may seek relief from removal such as asylum or cancella-

tion of removal, but the Attorney General may, in his discretion, deny

relief if he finds that the noncitizen is actually a more serious drug

trafficker. Pp. 9–21.

662 F. 3d 387, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined.

THOMAS, J., and ALITO, J., filed dissenting opinions.

Cite as: 569 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–702

_________________

ADRIAN MONCRIEFFE, PETITIONER v. ERIC H.

HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2013]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

The Immigration and Nationality Act (INA), 66 Stat.

163, 8 U. S. C. §1101 et seq., provides that a noncitizen

who has been convicted of an “aggravated felony” may be

deported from this country. The INA also prohibits the

Attorney General from granting discretionary relief from

removal to an aggravated felon, no matter how compelling

his case. Among the crimes that are classified as aggra-

vated felonies, and thus lead to these harsh consequences,

are illicit drug trafficking offenses. We must decide

whether this category includes a state criminal statute

that extends to the social sharing of a small amount of

marijuana. We hold it does not.

I

A

The INA allows the Government to deport various classes

of noncitizens, such as those who overstay their visas,

and those who are convicted of certain crimes while in the

United States, including drug offenses. §1227. Ordinarily,

when a noncitizen is found to be deportable on one of

these grounds, he may ask the Attorney General for cer-

2 MONCRIEFFE v. HOLDER

Opinion of the Court

tain forms of discretionary relief from removal, like asy-

lum (if he has a well-founded fear of persecution in his

home country) and cancellation of removal (if, among

other things, he has been lawfully present in the United

States for a number of years). §§1158, 1229b. But if a

noncitizen has been convicted of one of a narrower set of

crimes classified as “aggravated felonies,” then he is not

only deportable, §1227(a)(2)(A)(iii), but also ineligible for

these discretionary forms of relief. See §§1158(b)(2)(A)(ii),

(B)(i); §§1229b(a)(3), (b)(1)(C).1

The INA defines “aggravated felony” to include a host of

offenses. §1101(a)(43). Among them is “illicit trafficking

in a controlled substance.” §1101(a)(43)(B). This general

term is not defined, but the INA states that it “includ[es] a

drug trafficking crime (as defined in section 924(c) of title

18).” Ibid. In turn, 18 U. S. C. §924(c)(2) defines “drug

trafficking crime” to mean “any felony punishable under

the Controlled Substances Act,” or two other statutes

not relevant here. The chain of definitions ends with

§3559(a)(5), which provides that a “felony” is an offense for

which the “maximum term of imprisonment authorized” is

“more than one year.” The upshot is that a noncitizen’s

conviction of an offense that the Controlled Substances Act

(CSA) makes punishable by more than one year’s impris-

——————

1 In addition to asylum, a noncitizen who fears persecution may seek

withholding of removal, 8 U. S. C. §1231(b)(3)(A), and deferral of

removal under the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT), Art. 3, Dec.

10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR

§1208.17(a) (2012). These forms of relief require the noncitizen to show

a greater likelihood of persecution or torture at home than is necessary

for asylum, but the Attorney General has no discretion to deny relief to

a noncitizen who establishes his eligibility. A conviction of an aggra-

vated felony has no effect on CAT eligibility, but will render a nonciti-

zen ineligible for withholding of removal if he “has been sentenced to an

aggregate term of imprisonment of at least 5 years” for any aggravated

felonies. 8 U. S. C. §1231(b)(3)(B).

Cite as: 569 U. S. ____ (2013) 3

Opinion of the Court

onment will be counted as an “aggravated felony” for

immigration purposes. A conviction under either state or

federal law may qualify, but a “state offense constitutes a

‘felony punishable under the Controlled Substances Act’

only if it proscribes conduct punishable as a felony under

that federal law.” Lopez v. Gonzales, 549 U. S. 47, 60

(2006).

B

Petitioner Adrian Moncrieffe is a Jamaican citizen who

came to the United States legally in 1984, when he was

three. During a 2007 traffic stop, police found 1.3 grams

of marijuana in his car. This is the equivalent of about

two or three marijuana cigarettes. Moncrieffe pleaded

guilty to possession of marijuana with intent to distribute,

a violation of Ga. Code Ann. §16–13–30(j)(1) (2007). Un-

der a Georgia statute providing more lenient treatment to

first-time offenders, §42–8–60(a) (1997), the trial court

withheld entering a judgment of conviction or imposing

any term of imprisonment, and instead required that

Moncrieffe complete five years of probation, after which

his charge will be expunged altogether.2 App. to Brief for

Petitioner 11–15.

Alleging that this Georgia conviction constituted an

aggravated felony, the Federal Government sought to

deport Moncrieffe. The Government reasoned that posses-

sion of marijuana with intent to distribute is an offense

under the CSA, 21 U. S. C. §841(a), punishable by up to

five years’ imprisonment, §841(b)(1)(D), and thus an ag-

gravated felony. An Immigration Judge agreed and or-

dered Moncrieffe removed. App. to Pet. for Cert. 14a–18a.

The Board of Immigration Appeals (BIA) affirmed that

——————

2 Theparties agree that this resolution of Moncrieffe’s Georgia case is

nevertheless a “conviction” as the INA defines that term, 8 U. S. C.

§1101(a)(48)(A). See Brief for Petitioner 6, n. 2; Brief for Respondent 5,

n. 2.

4 MONCRIEFFE v. HOLDER

Opinion of the Court

conclusion on appeal. Id., at 10a–13a.

The Court of Appeals denied Moncrieffe’s petition for

review. The court rejected Moncrieffe’s reliance upon

§841(b)(4), a provision that, in effect, makes marijuana

distribution punishable only as a misdemeanor if the

offense involves a small amount of marijuana for no re-

muneration. It held that in a federal criminal prosecution,

“the default sentencing range for a marijuana distribution

offense is the CSA’s felony provision, §841(b)(1)(D), rather

than the misdemeanor provision.” 662 F. 3d 387, 392

(CA5 2011). Because Moncrieffe’s Georgia offense penal-

ized possession of marijuana with intent to distribute,

the court concluded that it was “equivalent to a federal

felony.” Ibid.

We granted certiorari, 566 U. S. ___ (2012), to resolve a

conflict among the Courts of Appeals with respect to

whether a conviction under a statute that criminalizes

conduct described by both §841’s felony provision and its

misdemeanor provision, such as a statute that punishes

all marijuana distribution without regard to the amount

or remuneration, is a conviction for an offense that “pro-

scribes conduct punishable as a felony under” the CSA.3

Lopez, 549 U. S., at 60. We now reverse.

II

A

When the Government alleges that a state conviction

qualifies as an “aggravated felony” under the INA, we

generally employ a “categorical approach” to determine

whether the state offense is comparable to an offense

listed in the INA. See, e.g., Nijhawan v. Holder, 557 U. S.

——————

3 Compare 662 F. 3d 387 (CA5 2011) (case below), Garcia v. Holder,

638 F. 3d 511 (CA6 2011) (is an aggravated felony), and Julce v.

Mukasey, 530 F. 3d 30 (CA1 2008) (same), with Martinez v. Mukasey,

551 F. 3d 113 (CA2 2008) (is not an aggravated felony), and Wilson v.

Ashcroft, 350 F. 3d 377 (CA3 2003) (same).

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S.

183, 185–187 (2007). Under this approach we look “not to

the facts of the particular prior case,” but instead to

whether “the state statute defining the crime of convic-

tion” categorically fits within the “generic” federal defini-

tion of a corresponding aggravated felony. Id., at 186

(citing Taylor v. United States, 495 U. S. 575, 599–600

(1990)). By “generic,” we mean the offenses must be

viewed in the abstract, to see whether the state statute

shares the nature of the federal offense that serves as

a point of comparison. Accordingly, a state offense is a

categorical match with a generic federal offense only if a

conviction of the state offense “ ‘necessarily’ involved . . .

facts equating to [the] generic [federal offense].” Shepard

v. United States, 544 U. S. 13, 24 (2005) (plurality opin-

ion). Whether the noncitizen’s actual conduct involved

such facts “is quite irrelevant.” United States ex rel. Gua-

rino v. Uhl, 107 F. 2d 399, 400 (CA2 1939) (L. Hand, J.).

Because we examine what the state conviction neces-

sarily involved, not the facts underlying the case, we must

presume that the conviction “rested upon [nothing] more

than the least of th[e] acts” criminalized, and then deter-

mine whether even those acts are encompassed by the

generic federal offense. Johnson v. United States, 559

U. S. 133, 137 (2010); see Guarino, 107 F. 2d, at 400. But

this rule is not without qualification. First, our cases have

addressed state statutes that contain several different

crimes, each described separately, and we have held that a

court may determine which particular offense the nonciti-

zen was convicted of by examining the charging document

and jury instructions, or in the case of a guilty plea, the

plea agreement, plea colloquy, or “ ‘some comparable judi-

cial record’ of the factual basis for the plea.” Nijhawan,

557 U. S., at 35 (quoting Shepard, 544 U. S., at 26). Sec-

ond, our focus on the minimum conduct criminalized by

the state statute is not an invitation to apply “legal imagi-

6 MONCRIEFFE v. HOLDER

Opinion of the Court

nation” to the state offense; there must be “a realistic

probability, not a theoretical possibility, that the State

would apply its statute to conduct that falls outside the

generic definition of a crime.” Duenas-Alvarez, 549 U. S.,

at 193.

This categorical approach has a long pedigree in our

Nation’s immigration law. See Das, The Immigration

Penalties of Criminal Convictions: Resurrecting Categori-

cal Analysis in Immigration Law, 86 N. Y. U. L. Rev. 1669,

1688–1702, 1749–1752 (2011) (tracing judicial decisions

back to 1913). The reason is that the INA asks what

offense the noncitizen was “convicted” of, 8 U. S. C.

§1227(a)(2)(A)(iii), not what acts he committed. “[C]on-

viction” is “the relevant statutory hook.”4 Carachuri-

Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16);

see United States ex rel. Mylius v. Uhl, 210 F. 860, 862

(CA2 1914).

B

The aggravated felony at issue here, “illicit trafficking in

a controlled substance,” is a “generic crim[e].” Nijhawan,

557 U. S., at 37. So the categorical approach applies.

Ibid. As we have explained, supra, at 2–3, this aggravated

felony encompasses all state offenses that “proscrib[e]

conduct punishable as a felony under [the CSA].” Lopez,

549 U. S., at 60. In other words, to satisfy the categorical

approach, a state drug offense must meet two conditions:

It must “necessarily” proscribe conduct that is an offense

under the CSA, and the CSA must “necessarily” prescribe

felony punishment for that conduct.

Moncrieffe was convicted under a Georgia statute that

——————

4 Carachuri-Rosendo construed a different provision of the INA that

concerns cancellation of removal, which also requires determining

whether the noncitizen has been “convicted of any aggravated felony.”

8 U. S. C. §1229b(a)(3) (emphasis added). Our analysis is the same in

both contexts.

Cite as: 569 U. S. ____ (2013) 7

Opinion of the Court

makes it a crime to “possess, have under [one’s] control,

manufacture, deliver, distribute, dispense, administer,

purchase, sell, or possess with intent to distribute mari-

juana.” Ga. Code Ann. §16–13–30(j)(1). We know from his

plea agreement that Moncrieffe was convicted of the last

of these offenses. App. to Brief for Petitioner 11; Shepard,

544 U. S., at 26. We therefore must determine whether

possession of marijuana with intent to distribute is “nec-

essarily” conduct punishable as a felony under the CSA.

We begin with the relevant conduct criminalized by the

CSA. There is no question that it is a federal crime to

“possess with intent to . . . distribute . . . a controlled

substance,” 21 U. S. C. §841(a)(1), one of which is mari-

juana, §812(c).5 So far, the state and federal provisions

correspond. But this is not enough, because the generically

defined federal crime is “any felony punishable under

the Controlled Substances Act,” 18 U. S. C. §924(c)(2), not

just any “offense under the CSA.” Thus we must look to

what punishment the CSA imposes for this offense.

Section 841 is divided into two subsections that are

relevant here: (a), titled “Unlawful acts,” which includes

the offense just described, and (b), titled “Penalties.”

Subsection (b) tells us how “any person who violates sub-

section (a)” shall be punished, depending on the circum-

stances of his crime (e.g., the type and quantity of con-

trolled substance involved, whether it is a repeat offense).6

——————

5 In full, 21 U. S. C. §841(a)(1) provides,

“Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally—

“(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance . . . .”

6 In pertinent part, §§841(b)(1)(D) and (b)(4) (2006 ed. and Supp. V)

provide,

“Except as otherwise provided in section 849, 859, 860, or 861 of this

title, any person who violates subsection (a) of this section shall be

sentenced as follows:

. . . . .

8 MONCRIEFFE v. HOLDER

Opinion of the Court

Subsection (b)(1)(D) provides that if a person commits a

violation of subsection (a) involving “less than 50 kilo-

grams of marihuana,” then “such person shall, except as

provided in paragraphs (4) and (5) of this subsection, be

sentenced to a term of imprisonment of not more than 5

years,” i.e., as a felon. But one of the exceptions is im-

portant here. Paragraph (4) provides, “Notwithstanding

paragraph (1)(D) of this subsection, any person who vio-

lates subsection (a) of this section by distributing a small

amount of marihuana for no remuneration shall be treated

as” a simple drug possessor, 21 U. S. C. §844, which for

our purposes means as a misdemeanant.7 These dovetail-

ing provisions create two mutually exclusive categories of

punishment for CSA marijuana distribution offenses: one

——————

“[(1)](D) In the case of less than 50 kilograms of marihuana, except in

the case of 50 or more marihuana plants regardless of weight, 10

kilograms of hashish, or one kilogram of hashish oil, such person shall,

except as provided in paragraphs (4) and (5) of this subsection, be

sentenced to a term of imprisonment of not more than 5 years, a fine

not to exceed the greater of that authorized in accordance with the

provisions of title 18 or $250,000 if the defendant is an individual or

$1,000,000 if the defendant is other than an individual, or both. . . .

. . . . .

“(4) Notwithstanding paragraph (1)(D) of this subsection, any person

who violates subsection (a) of this section by distributing a small

amount of marihuana for no remuneration shall be treated as provided

in section 844 of this title and section 3607 of title 18.”

7 Although paragraph (4) speaks only of “distributing” marijuana, the

parties agree that it also applies to “the more inchoate offense of

possession with intent to distribute that drug.” Matter of Castro

Rodriguez, 25 I. & N. Dec. 698, 699, n. 2 (BIA 2012); see Brief for

Petitioner 6, n. 2; Brief for Respondent 8, n. 5.

The CSA does not define “small amount.” The BIA has suggested

that 30 grams “serve[s] as a useful guidepost,” Castro Rodriguez, 25

I. & N. Dec., at 703, noting that the INA exempts from deportable

controlled substances offenses “a single offense involving possession for

one’s own use of 30 grams or less of marijuana,” 8 U. S. C.

§1227(a)(2)(B)(i). The meaning of “small amount” is not at issue in this

case, so we need not, and do not, define the term.

Cite as: 569 U. S. ____ (2013) 9

Opinion of the Court

a felony, and one not. The only way to know whether a

marijuana distribution offense is “punishable as a felony”

under the CSA, Lopez, 549 U. S., at 60, is to know whether

the conditions described in paragraph (4) are present or

absent.

A conviction under the same Georgia statute for

“sell[ing]” marijuana, for example, would seem to establish

remuneration. The presence of remuneration would mean

that paragraph (4) is not implicated, and thus that the

conviction is necessarily for conduct punishable as a felony

under the CSA (under paragraph (1)(D)). In contrast, the

fact of a conviction for possession with intent to distribute

marijuana, standing alone, does not reveal whether either

remuneration or more than a small amount of marijuana

was involved. It is possible neither was; we know that

Georgia prosecutes this offense when a defendant possesses

only a small amount of marijuana, see, e.g., Taylor v.

State, 260 Ga. App. 890, 581 S. E. 2d 386, 388 (2003) (6.6

grams), and that “distribution” does not require remuner-

ation, see, e.g., Hadden v. State, 181 Ga. App. 628, 628–

629, 353 S. E. 2d 532, 533–534 (1987). So Moncrieffe’s

conviction could correspond to either the CSA felony or the

CSA misdemeanor. Ambiguity on this point means that

the conviction did not “necessarily” involve facts that

correspond to an offense punishable as a felony under the

CSA. Under the categorical approach, then, Moncrieffe

was not convicted of an aggravated felony.

III

A

The Government advances a different approach that

leads to a different result. In its view, §841(b)(4)’s misde-

meanor provision is irrelevant to the categorical analysis

because paragraph (4) is merely a “mitigating exception,”

to the CSA offense, not one of the “elements” of the of-

fense. Brief for Respondent 12. And because possession

10 MONCRIEFFE v. HOLDER

Opinion of the Court

with intent to distribute marijuana is “presumptive[ly]” a

felony under the CSA, the Government asserts, any state

offense with the same elements is presumptively an ag-

gravated felony. Id., at 37. These two contentions are

related, and we reject both of them.

First, the Government reads our cases to hold that the

categorical approach is concerned only with the “elements”

of an offense, so §841(b)(4) “is not relevant” to the categor-

ical analysis. Id., at 20. It is enough to satisfy the cate-

gorical inquiry, the Government suggests, that the “ele-

ments” of Moncrieffe’s Georgia offense are the same as

those of the CSA offense: (1) possession (2) of marijuana (a

controlled substance), (3) with intent to distribute it. But

that understanding is inconsistent with Carachuri-

Rosendo, our only decision to address both “elements” and

“sentencing factors.” There we recognized that when

Congress has chosen to define the generic federal offense

by reference to punishment, it may be necessary to take

account of federal sentencing factors too. See 560 U. S., at

___ (slip op., at 3). In that case the relevant CSA offense

was simple possession, which “becomes a ‘felony punisha-

ble under the [CSA]’ only because the sentencing factor of

recidivism authorizes additional punishment beyond one

year, the criterion for a felony.” Id., at ___ (SCALIA, J.,

concurring in judgment) (slip op., at 2). We therefore

called the generic federal offense “recidivist simple posses-

sion,” even though such a crime is not actually “a separate

offense” under the CSA, but rather an “ ‘amalgam’ ” of

offense elements and sentencing factors. Id., at ___, and

n. 3, ___ (majority opinion) (slip op., at 3, and n. 3, 7).

In other words, not only must the state offense of convic-

tion meet the “elements” of the generic federal offense

defined by the INA, but the CSA must punish that offense

as a felony. Here, the facts giving rise to the CSA offense

establish a crime that may be either a felony or a misde-

meanor, depending upon the presence or absence of cer-

Cite as: 569 U. S. ____ (2013) 11

Opinion of the Court

tain factors that are not themselves elements of the crime.

And so to qualify as an aggravated felony, a conviction for

the predicate offense must necessarily establish those

factors as well.

The Government attempts to distinguish Carachuri-

Rosendo on the ground that the sentencing factor there

was a “narrow” aggravating exception that turned a mis-

demeanor into a felony, whereas here §841(b)(4) is a nar-

row mitigation exception that turns a felony into a misde-

meanor. Brief for Respondent 40–43. This argument

hinges upon the Government’s second assertion: that any

marijuana distribution conviction is “presumptively” a

felony. But that is simply incorrect, and the Government’s

argument collapses as a result. Marijuana distribution

is neither a felony nor a misdemeanor until we know

whether the conditions in paragraph (4) attach: Section

841(b)(1)(D) makes the crime punishable by five years’

imprisonment “except as provided” in paragraph (4), and

§841(b)(4) makes it punishable as a misdemeanor

“[n]otwithstanding paragraph (1)(D)” when only “a small

amount of marihuana for no remuneration” is involved.

(Emphasis added.) The CSA’s text makes neither provi-

sion the default. Rather, each is drafted to be exclusive of

the other.

Like the BIA and the Fifth Circuit, the Government

believes the felony provision to be the default because, in

practice, that is how federal criminal prosecutions for

marijuana distribution operate. See 662 F. 3d, at 391–

392; Matter of Aruna, 24 I. & N. Dec. 452, 456–457 (2008);

Brief for Respondent 18–23. It is true that every Court

of Appeals to have considered the question has held that

a defendant is eligible for a 5-year sentence under

§841(b)(1)(D) if the Government proves he possessed

marijuana with the intent to distribute it, and that the

Government need not negate the §841(b)(4) factors in each

case. See, e.g., United States v. Outen, 286 F. 3d 622, 636–

12 MONCRIEFFE v. HOLDER

Opinion of the Court

639 (CA2 2002) (describing §841(b)(4) as a “mitigating

exception”); United States v. Hamlin, 319 F. 3d 666, 670–

671 (CA4 2003) (collecting cases). Instead, the burden is

on the defendant to show that he qualifies for the lesser

sentence under §841(b)(4). Cf. id., at 671.

We cannot discount §841’s text, however, which creates

no default punishment, in favor of the procedural overlay

or burdens of proof that would apply in a hypothetical

federal criminal prosecution. In Carachuri-Rosendo, we

rejected the Fifth Circuit’s “ ‘hypothetical approach,’ ”

which examined whether conduct “ ‘could have been pun-

ished as a felony’ ‘had [it] been prosecuted in federal

court.’ ” 560 U. S., at ___, ___ (slip op., at 8, 11).8 The

outcome in a hypothetical prosecution is not the relevant

inquiry. Rather, our “more focused, categorical inquiry” is

whether the record of conviction of the predicate offense

necessarily establishes conduct that the CSA, on its own

terms, makes punishable as a felony. Id., at ___ (slip op.,

at 16).

The analogy to a federal prosecution is misplaced for

another reason. The Court of Appeals cases the Govern-

ment cites distinguished between elements and sentencing

factors to determine which facts must be proved to a jury,

——————

8 JUSTICE ALITO states that the statute “obviously” requires examina-

tion of whether “conduct associated with the state offense . . . would

have supported a qualifying conviction under the federal CSA.” Post, at

3 (dissenting opinion) (emphasis added); see also post, at 8. But this

echoes the Fifth Circuit’s approach in Carachuri-Rosendo. As noted in

the text, our opinion explicitly rejected such reasoning based on condi-

tional perfect formulations. See also, e.g., Carachuri-Rosendo, 560

U. S., at ___ (slip op., at 16) (criticizing approach that “focuses on facts

known to the immigration court that could have but did not serve as

the basis for the state conviction and punishment” (emphasis altered)).

Instead, as we have explained, supra, at 10–11, our holding depended

upon the fact that Carachuri-Rosendo’s conviction did not establish the

fact necessary to distinguish between misdemeanor and felony punish-

ment under the CSA. The same is true here.

Cite as: 569 U. S. ____ (2013) 13

Opinion of the Court

in light of the Sixth Amendment concerns addressed in

Apprendi v. New Jersey, 530 U. S. 466 (2000). The courts

considered which “provision . . . states a complete crime

upon the fewest facts,” Outen, 286 F. 3d, at 638, which was

significant after Apprendi to identify what a jury had to

find before a defendant could receive §841(b)(1)(D)’s max-

imum 5-year sentence. But those concerns do not apply in

this context. Here we consider a “generic” federal offense

in the abstract, not an actual federal offense being prose-

cuted before a jury. Our concern is only which facts the

CSA relies upon to distinguish between felonies and mis-

demeanors, not which facts must be found by a jury as

opposed to a judge, nor who has the burden of proving

which facts in a federal prosecution.9

Because of these differences, we made clear in Carachuri-

Rosendo that, for purposes of the INA, a generic fed-

eral offense may be defined by reference to both “ ‘ele-

ments’ in the traditional sense” and sentencing factors.

560 U. S., at ___, n. 3, ___ (slip op., at 3, n. 3, 7); see also

id., at ___ (SCALIA, J., concurring in judgment) (slip op., at

3) (describing the generic federal offense there as “the

Controlled Substances Act felony of possession-plus-

recidivism”). Indeed, the distinction between “elements”

and “sentencing factors” did not exist when Congress

added illicit drug trafficking to the list of aggravated

felonies, Anti-Drug Abuse Act of 1988, 102 Stat. 4469–

4470, and most courts at the time understood both

§841(b)(1)(D) and §841(b)(4) to contain sentencing factors

——————

9 The Government also cites 21 U. S. C. §885(a)(1), which provides

that the Government need not “negative any exemption or exception set

forth” in the CSA, and instead “the burden of going forward with the

evidence with respect to any such exemption or exception shall be upon

the person claiming its benefit.” Brief for Respondent 21. Even assum-

ing §841(b)(4) is such an “exception,” §885(a)(1) applies, by its own

terms, only to “any trial, hearing, or other proceeding under” the CSA

itself, not to the rather different proceedings under the INA.

14 MONCRIEFFE v. HOLDER

Opinion of the Court

that draw the line between a felony and a misdemeanor.

See, e.g., United States v. Campuzano, 905 F. 2d 677, 679

(CA2 1990). Carachuri-Rosendo controls here.

Finally, there is a more fundamental flaw in the Gov-

ernment’s approach: It would render even an undisputed

misdemeanor an aggravated felony. This is “just what the

English language tells us not to expect,” and that leaves

us “very wary of the Government’s position.” Lopez, 549

U. S., at 54. Consider a conviction under a New York

statute that provides, “A person is guilty of criminal sale

of marihuana in the fifth degree when he knowingly and

unlawfully sells, without consideration, [marihuana] of an

aggregate weight of two grams or less; or one cigarette

containing marihuana.” N. Y. Penal Law Ann. §221.35

(West 2008) (emphasis added). This statute criminalizes

only the distribution of a small amount of marijuana for

no remuneration, and so all convictions under the statute

would fit within the CSA misdemeanor provision,

§841(b)(4). But the Government would categorically deem

a conviction under this statute to be an aggravated felony,

because the statute contains the corresponding “elements”

of (1) distributing (2) marijuana, and the Government

believes all marijuana distribution offenses are punishable

as felonies.

The same anomaly would result in the case of a nonciti-

zen convicted of a misdemeanor in federal court under

§§841(a) and (b)(4) directly. Even in that case, under the

Government’s logic, we would need to treat the federal

misdemeanor conviction as an aggravated felony, because

the conviction establishes elements of an offense that is

presumptively a felony. This cannot be. “We cannot

imagine that Congress took the trouble to incorporate its

own statutory scheme of felonies and misdemeanors,” only

to have courts presume felony treatment and ignore the

very factors that distinguish felonies from misdemeanors.

Lopez, 549 U. S., at 58.

Cite as: 569 U. S. ____ (2013) 15

Opinion of the Court

B

Recognizing that its approach leads to consequences

Congress could not have intended, the Government hedges

its argument by proposing a remedy: Noncitizens should

be given an opportunity during immigration proceedings

to demonstrate that their predicate marijuana distribution

convictions involved only a small amount of marijuana

and no remuneration, just as a federal criminal defendant

could do at sentencing. Brief for Respondent 35–39. This

is the procedure adopted by the BIA in Matter of Castro

Rodriguez, 25 I. & N. Dec. 698, 702 (2012), and endorsed

by JUSTICE ALITO’s dissent, post, at 11–12.

This solution is entirely inconsistent with both the

INA’s text and the categorical approach. As noted, the

relevant INA provisions ask what the noncitizen was

“convicted of,” not what he did, and the inquiry in immi-

gration proceedings is limited accordingly. 8 U. S. C.

§§1227(a)(2)(A)(iii), 1229b(a)(3); see Carachuri-Rosendo,

560 U. S., at ___ (slip op., at 11). The Government cites no

statutory authority for such case-specific factfinding in

immigration court, and none is apparent in the INA.

Indeed, the Government’s main categorical argument

would seem to preclude this inquiry: If the Government

were correct that “the fact of a marijuana-distribution

conviction alone constitutes a CSA felony,” Brief for Re-

spondent 37, then all marijuana distribution convictions

would categorically be convictions of the drug trafficking

aggravated felony, mandatory deportation would follow

under the statute, and there would be no room for the

Government’s follow-on factfinding procedure. The Gov-

ernment cannot have it both ways.

Moreover, the procedure the Government envisions

would require precisely the sort of post hoc investigation

into the facts of predicate offenses that we have long

deemed undesirable. The categorical approach serves

“practical” purposes: It promotes judicial and administra-

16 MONCRIEFFE v. HOLDER

Opinion of the Court

tive efficiency by precluding the relitigation of past convic-

tions in minitrials conducted long after the fact. Cham-

bers v. United States, 555 U. S. 122, 125 (2009); see also

Mylius, 210 F., at 862–863. Yet the Government’s ap-

proach would have our Nation’s overburdened immigra-

tion courts entertain and weigh testimony from, for exam-

ple, the friend of a noncitizen who may have shared a

marijuana cigarette with him at a party, or the local police

officer who recalls to the contrary that cash traded hands.

And, as a result, two noncitizens, each “convicted of ” the

same offense, might obtain different aggravated felony

determinations depending on what evidence remains

available or how it is perceived by an individual immigra-

tion judge. The categorical approach was designed to

avoid this “potential unfairness.” Taylor, 495 U. S., at

601; see also Mylius, 210 F., at 863.

Furthermore, the minitrials the Government proposes

would be possible only if the noncitizen could locate wit-

nesses years after the fact, notwithstanding that during

removal proceedings noncitizens are not guaranteed legal

representation and are often subject to mandatory deten-

tion, §1226(c)(1)(B), where they have little ability to collect

evidence. See Katzmann, The Legal Profession and the

Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal

Ethics 3, 5–10 (2008); Brief for National Immigrant Jus-

tice Center et al. as Amici Curiae 5–18; Brief for Immigra-

tion Law Professors as Amici Curiae 27–32. A noncitizen

in removal proceedings is not at all similarly situated to a

defendant in a federal criminal prosecution. The Govern-

ment’s suggestion that the CSA’s procedures could readily

be replicated in immigration proceedings is therefore

misplaced. Cf. Carachuri-Rosendo, 560 U. S., at ___ (slip

op., at 14–15) (rejecting the Government’s argument that

procedures governing determination of the recidivism

sentencing factor could “be satisfied during the immigra-

tion proceeding”).

Cite as: 569 U. S. ____ (2013) 17

Opinion of the Court

The Government defends its proposed immigration court

proceedings as “a subsequent step outside the categorical

approach in light of Section 841(b)(4)’s ‘circumstance-

specific’ nature.” Brief for Respondent 37. This argument

rests upon Nijhawan, in which we considered another

aggravated felony, “an offense that . . . involves fraud or

deceit in which the loss to the victim or victims exceeds

$10,000.” 8 U. S. C. §1101(a)(43)(M)(i). We held that the

$10,000 threshold was not to be applied categorically as a

required component of a generic offense, but instead called

for a “circumstance-specific approach” that allows for an

examination, in immigration court, of the “particular

circumstances in which an offender committed the crime

on a particular occasion.” Nijhawan, 557 U. S., at 38–40.

The Government suggests the §841(b)(4) factors are like

the monetary threshold, and thus similarly amenable to a

circumstance-specific inquiry.

We explained in Nijhawan, however, that unlike the

provision there, “illicit trafficking in a controlled sub-

stance” is a “generic crim[e]” to which the categorical

approach applies, not a circumstance-specific provision.

Id., at 37; see also Carachuri-Rosendo, 560 U. S., at ___,

n. 11 (slip op., at 12–13, n. 11). That distinction is evident

in the structure of the INA. The monetary threshold is a

limitation, written into the INA itself, on the scope of the

aggravated felony for fraud. And the monetary threshold

is set off by the words “in which,” which calls for a circum-

stance-specific examination of “the conduct involved ‘in’

the commission of the offense of conviction.” Nijhawan,

557 U. S., at 39. Locating this exception in the INA proper

suggests an intent to have the relevant facts found in

immigration proceedings. But where, as here, the INA

incorporates other criminal statutes wholesale, we have

held it “must refer to generic crimes,” to which the cate-

gorical approach applies. Id., at 37.

Finally, the Government suggests that the immigration

18 MONCRIEFFE v. HOLDER

Opinion of the Court

court’s task would not be so daunting in some cases, such

as those in which a noncitizen was convicted under the

New York statute previously discussed or convicted directly

under §841(b)(4). True, in those cases, the record of

conviction might reveal on its face that the predicate

offense was punishable only as a misdemeanor. But most

States do not have stand-alone offenses for the social

sharing of marijuana, so minitrials concerning convictions

from the other States, such as Georgia, would be inevita-

ble.10 The Government suggests that even in these other

States, the record of conviction may often address the

§841(b)(4) factors, because noncitizens “will be advised of

the immigration consequences of a conviction,” as defense

counsel is required to do under Padilla v. Kentucky, 559

U. S. 359 (2010), and as a result counsel can build an

appropriate record when the facts are fresh. Brief for

Respondent 38. Even assuming defense counsel “will” do

something simply because it is required of effective coun-

sel (an assumption experience does not always bear out),

this argument is unavailing because there is no reason to

believe that state courts will regularly or uniformly admit

evidence going to facts, such as remuneration, that are

irrelevant to the offense charged.

In short, to avoid the absurd consequences that would

flow from the Government’s narrow understanding of the

categorical approach, the Government proposes a solution

——————

10 Inaddition to New York, it appears that 13 other States have sepa-

rate offenses for §841(b)(4) conduct. See Cal. Health & Safety Code

Ann. §11360(b) (West Supp. 2013); Colo. Rev. Stat. Ann. §18–18–406(5)

(2012); Fla. Stat. §893.13(2)(b)(3) (2010); Ill. Comp. Stat., ch. 20, §§550/3,

550/4, 550/6 (West 2010); Iowa Code §124.410 (2009); Minn. Stat.

§152.027(4)(a) (2010); N. M. Stat. Ann. §30–31–22(E) (Supp. 2011);

Ohio Rev. Code Ann. §2925.03(C)(3)(h) (Lexis 2012 Cum. Supp.); Ore.

Rev. Stat. §475.860(3) (2011); Pa. Stat. Ann., Tit. 35, §780–113(a)(31)

(Purdon Supp. 2012); S. D. Codified Laws §22–42–7 (Supp. 2012); Tex.

Health & Safety Code Ann. §481.120(b)(1) (West 2010); W. Va. Code

Ann. §60A–4–402(c) (Lexis 2010).

Cite as: 569 U. S. ____ (2013) 19

Opinion of the Court

that largely undermines the categorical approach. That

the only cure is worse than the disease suggests the Gov-

ernment is simply wrong.

C

The Government fears the consequences of our decision,

but its concerns are exaggerated. The Government ob-

serves that, like Georgia, about half the States criminalize

marijuana distribution through statutes that do not re-

quire remuneration or any minimum quantity of mari-

juana. Id., at 26–28. As a result, the Government contends,

noncitizens convicted of marijuana distribution offenses in

those States will avoid “aggravated felony” determina-

tions, purely because their convictions do not resolve

whether their offenses involved federal felony conduct or

misdemeanor conduct, even though many (if not most)

prosecutions involve either remuneration or larger

amounts of marijuana (or both).

Escaping aggravated felony treatment does not mean

escaping deportation, though. It means only avoiding

mandatory removal. See Carachuri-Rosendo, 560 U. S., at

___ (slip op., at 17). Any marijuana distribution offense,

even a misdemeanor, will still render a noncitizen deport-

able as a controlled substances offender. 8 U. S. C.

§1227(a)(2)(B)(i). At that point, having been found not to

be an aggravated felon, the noncitizen may seek relief

from removal such as asylum or cancellation of removal,

assuming he satisfies the other eligibility criteria.

§§1158(b), 1229b(a)(1)–(2). But those forms of relief are

discretionary. The Attorney General may, in his discre-

tion, deny relief if he finds that the noncitizen is actually a

member of one “of the world’s most dangerous drug car-

tels,” post, at 2 (opinion of ALITO, J.), just as he may deny

relief if he concludes the negative equities outweigh the

positive equities of the noncitizen’s case for other reasons.

As a result, “to the extent that our rejection of the Gov-

20 MONCRIEFFE v. HOLDER

Opinion of the Court

ernment’s broad understanding of the scope of ‘aggravated

felony’ may have any practical effect on policing our Na-

tion’s borders, it is a limited one.” Carachuri-Rosendo,

560 U. S., at ___ (slip op., at 17).

In any event, serious drug traffickers may be adjudi-

cated aggravated felons regardless, because they will likely

be convicted under greater “trafficking” offenses that

necessarily establish that more than a small amount of

marijuana was involved. See, e.g., Ga. Code Ann. §16–13–

31(c)(1) (Supp. 2012) (separate provision for trafficking in

more than 10 pounds of marijuana). Of course, some

offenders’ conduct will fall between §841(b)(4) conduct and

the more serious conduct required to trigger a “trafficking”

statute. Brief for Respondent 30. Those offenders may

avoid aggravated felony status by operation of the categor-

ical approach. But the Government’s objection to that

underinclusive result is little more than an attack on the

categorical approach itself.11 We prefer this degree of

imperfection to the heavy burden of relitigating old prose-

cutions. See supra, at 15–16. And we err on the side of

underinclusiveness because ambiguity in criminal statutes

——————

11 Similarly, JUSTICE ALITO’s dissent suggests that he disagrees with

the first premises of the categorical approach. He says it is a “strange

and disruptive resul[t]” that “defendants convicted in different States

for committing the same criminal conduct” might suffer different

collateral consequences depending upon how those States define their

statutes of conviction. Post, at 9. Yet that is the longstanding, natural

result of the categorical approach, which focuses not on the criminal

conduct a defendant “commit[s],” but rather what facts are necessarily

established by a conviction for the state offense. Different state offenses

will necessarily establish different facts. Some will track the “uni-

form” federal definition of the generic offense, and some will not.

Taylor v. United States, 495 U. S. 575, 590 (1990). Whatever disparity

this may create as between defendants whose real-world conduct was

the same, it ensures that all defendants whose convictions establish the

same facts will be treated consistently, and thus predictably, under

federal law. This was Taylor’s chief concern in adopting the categorical

approach. See id., at 599–602.

Cite as: 569 U. S. ____ (2013) 21

Opinion of the Court

referenced by the INA must be construed in the nonciti-

zen’s favor. See Carachuri-Rosendo, 560 U. S., at ___ (slip

op., at 17); Leocal v. Ashcroft, 543 U. S. 1, 11, n. 8 (2004).

Finally, the Government suggests that our holding will

frustrate the enforcement of other aggravated felony

provisions, like §1101(a)(43)(C), which refers to a federal

firearms statute that contains an exception for “antique

firearm[s],” 18 U. S. C. §921(a)(3). The Government fears

that a conviction under any state firearms law that lacks

such an exception will be deemed to fail the categorical

inquiry. But Duenas-Alvarez requires that there be “a

realistic probability, not a theoretical possibility, that the

State would apply its statute to conduct that falls outside

the generic definition of a crime.” 549 U. S., at 193. To

defeat the categorical comparison in this manner, a non-

citizen would have to demonstrate that the State actu-

ally prosecutes the relevant offense in cases involving an-

tique firearms. Further, the Government points to

§1101(a)(43)(P), which makes passport fraud an aggravat-

ed felony, except when the noncitizen shows he committed

the offense to assist an immediate family member. But

that exception is provided in the INA itself. As we held in

Nijhawan, a circumstance-specific inquiry would apply to

that provision, so it is not comparable. 557 U. S., at

37–38.

* * *

This is the third time in seven years that we have con-

sidered whether the Government has properly character-

ized a low-level drug offense as “illicit trafficking in a

controlled substance,” and thus an “aggravated felony.”

Once again we hold that the Government’s approach defies

“the ‘commonsense conception’” of these terms. Carachuri-

Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting

Lopez, 549 U. S., at 53). Sharing a small amount of mari-

juana for no remuneration, let alone possession with

22 MONCRIEFFE v. HOLDER

Opinion of the Court

intent to do so, “does not fit easily into the ‘everyday un-

derstanding’ ” of “trafficking,” which “ ‘ordinarily . . . means

some sort of commercial dealing.’ ” Carachuri-Rosendo,

560 U. S., at ___ (slip op., at 9) (quoting Lopez, 549 U. S.,

at 53–54). Nor is it sensible that a state statute that

criminalizes conduct that the CSA treats as a misde-

meanor should be designated an “aggravated felony.” We hold

that it may not be. If a noncitizen’s conviction for a mari-

juana distribution offense fails to establish that the of-

fense involved either remuneration or more than a small

amount of marijuana, the conviction is not for an aggra-

vated felony under the INA. The contrary judgment of the

Court of Appeals is reversed, and the case is remanded for

further proceedings consistent with this opinion.

It is so ordered.

Cite as: 569 U. S. ____ (2013) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–702

_________________

ADRIAN MONCRIEFFE, PETITIONER v. ERIC H.

HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2013]

JUSTICE THOMAS, dissenting.

A plain reading of 18 U. S. C. §924(c)(2) identifies two

requirements that must be satisfied for a state offense to

qualify as a “felony punishable under the Controlled Sub-

stances Act [(CSA)].” “First, the offense must be a felony;

second, the offense must be capable of punishment under

the [CSA].” Lopez v. Gonzales, 549 U. S. 47, 61 (2006)

(THOMAS, J., dissenting). Moncrieffe’s offense of pos-

session of marijuana with intent to distribute satisfies

both elements. No one disputes that Georgia punishes

Moncrieffe’s offense as a felony. See Ga. Code Ann. §16–

13–30(j)(2) (Supp. 2012). (“Except as otherwise provided

in subsection (c) of Code Section 16–13–31 or in Code

Section 16–13–2, any person who violates this subsection

shall be guilty of a felony and, upon conviction thereof,

shall be punished by imprisonment for not less than one

year nor more than ten years”).1 And, the offense is “pun-

——————

1 Section16–13–31(c) (Supp. 2012) increases the punishment for traf-

ficking in marijuana, while §16–13–2(b) (2011) decreases the punish-

ment for simple possession of 1 ounce or less of marijuana. Neither

provision is applicable to Moncrieffe’s offense of possession of mari-

juana with intent to distribute.

The Court correctly points out that Moncrieffe was sentenced pur-

suant to §16–13–2(a) because he was a first-time offender. Ante, at 3.

That provision does not alter the felony status of the offense. Rather, it

2 MONCRIEFFE v. HOLDER

THOMAS, J., dissenting

ishable under the [CSA],” 18 U. S. C. §924(c)(2), because

it involved “possess[ion] with intent to manufacture, dis-

tribute, or dispense, a controlled substance,” 21 U. S. C.

§841(a)(1). Accordingly, Moncrieffe’s offense is a “drug

trafficking crime,” 18 U. S. C. §924(c)(2), which constitutes

an “aggravated felony” under the Immigration and Na-

tionality Act (INA), 8 U. S. C. §1101(a)(43)(B).2

The Court rejected the plain meaning of 18 U. S. C.

§924(c)(2) in Lopez. 549 U. S., at 50. There, the defendant

was convicted of a state felony, but his offense would have

been a misdemeanor under the CSA. Id., at 53. The

Court held that the offense did not constitute a “ ‘felony

punishable under the [CSA]’ ” because it was not “punish-

able as a felony under that federal law.” Id., at 60 (quot-

ing §924(c)(2); emphasis added). I dissented in Lopez and

warned that an inquiry into whether a state offense would

constitute a felony in a hypothetical federal prosecution

would cause “significant inconsistencies.” Id., at 63. I

explained that one such inconsistency would arise if an

alien defendant never convicted of an actual state felony

were subject to deportation based on a hypothetical federal

prosecution. Id., at 67.

This precise issue arose in Carachuri-Rosendo v. Holder,

560 U. S. ___ (2010). Instead of following the logic of

Lopez, however, the Court contorted the law to avoid the

——————

gives courts discretion to impose probation instead of imprisonment

and to do so without entering a conviction. As the majority recognizes,

petitioner has waived any argument that he was not convicted for pur-

poses of the Immigration and Nationality Act. Ante, at 3, n. 2.

2 See 8 U. S. C. §1227(a)(2)(A)(iii) (providing that aliens convicted of

an “aggravated felony” after admission are deportable); §1229b(a)(3)

(providing that aliens convicted of an “aggravated felony” are ineligible

for cancellation of removal); §1101(a)(43)(B) (defining “aggravated

felony” as “illicit trafficking in a controlled substance . . . including a

drug trafficking crime (as defined in [18 U. S. C. §924(c)])”); 18 U. S. C.

§924(c)(2) (defining “drug trafficking crime” as “any felony punishable

under the [CSA]”).

Cite as: 569 U. S. ____ (2013) 3

THOMAS, J., dissenting

harsh result compelled by that decision. In Carachuri-

Rosendo, the defendant was convicted of a crime that the

State categorized as a misdemeanor, but his offense would

have been a felony under the CSA because he had a prior

conviction. 560 U. S., at ___ (slip op., at ___). The Court

held that the offense did not constitute an “aggravated

felony” because the state prosecutor had not charged the

existence of a prior conviction and, thus, the defendant

was not “actually convicted of a crime that is itself punish-

able as a felony under federal law.” Id., at ___ (slip op., at

17). Concurring in the judgment, I explained that the

Court’s decision was inconsistent with Lopez because the

defendant’s conduct was punishable as a felony under the

CSA, but that Lopez was wrongly decided and that a

proper reading of §924(c)(2) supported the Court’s result.

560 U. S., at ___ (slip op., at 1). Carachuri-Rosendo’s

crime of conviction was a state-law misdemeanor and, as a

result, it did not qualify as a “felony punishable under the

[CSA].” See ibid.

I declined to apply Lopez in Carachuri-Rosendo, and I

am unwilling to apply it here. Indeed, the Court itself

declined to follow the logic of Lopez to its natural end in

Carachuri-Rosendo. And, now the majority’s ill-advised

approach once again leads to an anomalous result. It

is undisputed that, for federal sentencing purposes,

Moncrieffe’s offense would constitute a federal felony

unless he could prove that he distributed only a small

amount of marijuana for no remuneration. Cf. United

States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (So-

tomayor, J.) (agreeing with the Government that 21

U. S. C. §841(b)(4) is a mitigating exception to the “default

provision” under §841(b)(1)(D) and that it need not negate

the §841(b)(4) factors to support a sentence under

§841(b)(1)(D)). But, the Court holds that, for purposes of

the INA, Moncrieffe’s offense would necessarily correspond

to a federal misdemeanor, regardless of whether he could

4 MONCRIEFFE v. HOLDER

THOMAS, J., dissenting

in fact prove that he distributed only a small amount of

marijuana for no remuneration. Ante, at 11 (asserting

that neither §841(b)(1)(D) nor §841(b)(4) is the “default”

provision). The Court’s decision, thus, has the effect of

treating a substantial number of state felonies as federal

misdemeanors, even when they would result in federal

felony convictions.

The majority notes that “[t]his is the third time in seven

years that we have considered whether the Government

has properly characterized a low-level drug offense as . . .

an ‘aggravated felony.’ ” Ante, at 20–21. The Court has

brought this upon itself. The only principle uniting Lopez,

Carachuri-Rosendo, and the decision today appears to be

that the Government consistently loses. If the Court

continues to disregard the plain meaning of §924(c)(2), I

expect that these types of cases will endlessly—and need-

lessly—recur.

I respectfully dissent.

Cite as: 569 U. S. ____ (2013) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–702

_________________

ADRIAN MONCRIEFFE, PETITIONER v. ERIC H.

HOLDER, JR., ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[April 23, 2013]

JUSTICE ALITO, dissenting.

The Court’s decision in this case is not supported by the

language of the Immigration and Nationality Act (INA) or

by this Court’s precedents, and it leads to results that

Congress clearly did not intend.

Under the INA, aliens1 who are convicted of certain

offenses may be removed from this country, 8 U. S. C.

§1227(a)(2) (2006 ed. and Supp. V), but in many instances,

the Attorney General (acting through the Board of Immi-

gration Appeals (BIA)) has the discretion to cancel re-

moval, §§1229b(a), (b). Aliens convicted of especially

serious crimes, however, are ineligible for cancellation of

removal. §1229b(a)(3) (2006 ed.). Among the serious

crimes that carry this consequence is “illicit trafficking in

a controlled substance.” §1101(a)(43)(B).

Under the Court’s holding today, however, drug traf-

fickers in about half the States are granted a dispensation.

In those States, even if an alien is convicted of possessing

tons of marijuana with the intent to distribute, the alien is

——————

1 “Alien” is the term used in the relevant provisions of the Immigra-

tion and Nationality Act, and this term does not encompass all nonciti-

zens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any

person not a citizen or national of the United States”) with §1101(a)(22)

(defining “national of the United States”). See also Miller v. Albright,

523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

2 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

eligible to remain in this country. Large-scale marijuana

distribution is a major source of income for some of the

world’s most dangerous drug cartels, Dept. of Justice,

National Drug Intelligence Center, National Drug Threat

Assessment 2, 7 (2011), but the Court now holds that an

alien convicted of participating in such activity may peti-

tion to remain in this country.

The Court’s decision also means that the consequences

of a conviction for illegal possession with intent to distrib-

ute will vary radically depending on the State in which the

case is prosecuted. Consider, for example, an alien who is

arrested near the Georgia-Florida border in possession of

a large supply of marijuana. Under the Court’s holding, if

the alien is prosecuted and convicted in Georgia for pos-

session with intent to distribute, he is eligible for cancella-

tion of removal. But if instead he is caught on the Florida

side of the line and is convicted in a Florida court—where

possession with intent to distribute a small amount of

marijuana for no remuneration is covered by a separate

statutory provision, compare Fla. Stat. §893.13(3) (2010)

with §893.13(1)(a)(2)—the alien is likely to be ineligible.

Can this be what Congress intended?

I

Certainly the text of the INA does not support such

a result. In analyzing the relevant INA provisions, the

starting point is 8 U. S. C. §1229b(a)(3), which provides

that a lawful permanent resident alien subject to removal

may apply for discretionary cancellation of removal if

he has not been convicted of any “aggravated felony.” The

term “aggravated felony” encompasses “illicit tracking in

a controlled substance . . . including a drug trafficking

crime (as defined in [18 U. S. C. §924(c)]).” 8 U. S. C.

§1101(a)(43)(B). And this latter provision defines a “drug

trafficking crime” to include “any felony punishable under

the Controlled Substances Act (21 U. S. C. 801 et seq.).”

Cite as: 569 U. S. ____ (2013) 3

ALITO, J., dissenting

18 U. S. C. §924(c)(2). Thus “any felony punishable under

the [CSA]” is an “aggravated felony.”

Where an alien has a prior federal conviction, it is a

straightforward matter to determine whether the convic-

tion was for a “felony punishable under the [CSA].” But 8

U. S. C. §1101(a)(43) introduces a complication. That

provision states that the statutory definition of “aggra-

vated felony” “applies to an offense described in this para-

graph whether in violation of Federal or State law.” (Em-

phasis added.) As noted, the statutory definition of

“aggravated felony” includes a “felony punishable under the

[CSA],” and therefore §1101(a)(43)(B) makes it necessary

to determine what is meant by a state “offense” that is a

“felony punishable under the [CSA].”

What §1101(a)(43) obviously contemplates is that the

BIA or a court will identify conduct associated with the

state offense and then determine whether that conduct

would have supported a qualifying conviction under the

federal CSA.2 Identifying and evaluating this relevant

conduct is the question that confounds the Court’s analy-

sis. Before turning to that question, however, some pre-

liminary principles should be established.

——————

2 The Court’s disagreement with this proposition, ante at 12, n. 8, is

difficult to understand. If, as 8 U. S. C. §1101(a)(43) quite plainly

suggests and the Court has held, a state conviction can qualify as an

“aggravated felony,” we must determine what is meant by a state “of-

fense” that is a “felony punishable under the [CSA].” There is no

way to do this other than by identifying a set of relevant conduct and

asking whether, based on that conduct, the alien could have been con-

victed of a felony if prosecuted under the CSA in federal court. In reject-

ing what it referred to as a “hypothetical approach,” the Carachuri-

Rosendo Court was addressing an entirely different question, specifi-

cally, which set of conduct is relevant. Carachuri-Rosendo v. Holder, 560

U. S. ___, ___–___ (2010) (slip op., at 8, 15–17). We held that the

relevant set of conduct consisted of that which was in fact charged and

proved in the state-court proceeding, not the set of conduct that could

have been proved in a hypothetical federal proceeding.

4 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

In Lopez v. Gonzales, 549 U. S. 47, 50 (2006), we held

that felony status is controlled by federal, not state, law.

As a result, once the relevant conduct is identified, it must

be determined whether proof of that conduct would sup-

port a felony conviction under the CSA. The federal defi-

nition of a felony is a crime punishable by imprisonment

for more than one year. 18 U. S. C. §§3559(a)(1)–(5).

Consequently, if the proof of the relevant conduct would

support a conviction under the CSA for which the maxi-

mum term of imprisonment is more than one year, the

state conviction qualifies as a conviction for an “aggra-

vated felony.”

II

This brings us to the central question presented in this

case: how to determine and evaluate the conduct that

constitutes the state “offense.” One possibility is that ac-

tual conduct is irrelevant, and that only the elements of

the state crime for which the alien was convicted matter.

We have called this the “categorical approach,” Taylor v.

United States, 495 U. S. 575, 600 (1990), and we have

generally used this approach in determining whether a

state conviction falls within a federal definition of a crime,

see id., at 600–601 (“Section 924(e)(2)(B)(i) defines ‘violent

felony’ as any crime punishable by imprisonment for more

than a year that ‘has as an element’—not any crime that,

in a particular case, involves—the use or threat of force.

Read in this context, the phrase ‘is burglary’ in

§924(e)(2)(B)(ii) most likely refers to the elements of the

statute of conviction, not to the facts of each defendant’s

conduct”). But, as will be discussed below, we have

also departed in important ways from a pure categorical

approach.

The Court’s opinion in this case conveys the impression

that its analysis is based on the categorical approach, but

that is simply not so. On the contrary, a pure categorical

Cite as: 569 U. S. ____ (2013) 5

ALITO, J., dissenting

approach leads very quickly to the conclusion that peti-

tioner’s Georgia conviction was a conviction for an “aggra-

vated felony.”

The elements of the Georgia offense were as follows:

knowledge, possession of marijuana, and the intent to dis-

tribute it. Ga. Code Ann. §16–13–30(j)(1) (2007); Jack-

son v. State, 295 Ga. App. 427, 435, n. 28, 671 S. E. 2d 902,

909, n. 28 (2009). Proof of those elements would be suffi-

cient to support a conviction under 21 U. S. C. §841(a),

and the maximum punishment for that offense is impris-

onment for up to five years, §841(b)(1)(D) (2006 ed., Supp.

V), more than enough to qualify for felony treatment.

Thus, under a pure categorical approach, petitioner’s

Georgia conviction would qualify as a conviction for an

“aggravated felony” and would render him ineligible for

cancellation of removal.

The Court departs from this analysis because §841(b)(4)

provides a means by which a defendant convicted of violat-

ing §841(a) (2006 ed.) may lower the maximum term of

imprisonment to no more than one year. That provision

states that “any person who violates [§841(a)] by distrib-

uting a small amount of marihuana for no remuneration

shall be treated as” a defendant convicted of simple pos-

session, and a defendant convicted of that lesser offense

faces a maximum punishment of one year’s imprisonment

(provided that the defendant does not have a prior simple

possession conviction), §844 (2006 ed., Supp. V). Reading

this provision together with §841(a), the Court proceeds as

if the CSA created a two-tiered possession-with-intent-to-

distribute offense: a base offense that is punishable as a

misdemeanor and a second-tier offense (possession with

intent to distribute more than a “small amount” of mari-

juana or possession with intent to distribute for remunera-

tion) that is punishable as a felony.

If the CSA actually created such a two-tiered offense,

the pure categorical approach would lead to the conclusion

6 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

that petitioner’s Georgia conviction was not for an “aggra-

vated felony.” The elements of the Georgia offense would

not suffice to prove the second-tier offense, which would

require proof that petitioner possessed more than a “small

amount” of marijuana or that he intended to obtain

remuneration for its distribution. Instead, proof of

the elements of the Georgia crime would merely estab-

lish a violation of the base offense, which would be a

misdemeanor.

The CSA, however, does not contain any such two-tiered

provision. And §841(b)(4) does not alter the elements of

the §841(a) offense. As the Court notes, every Court of

Appeals to consider the question has held that §841(a) is

the default offense and that §841(b)(4) is only a mitigating

sentencing guideline, see United States v. Outen, 286 F. 3d

622, 636–639 (CA2 2002) (Sotomayor, J.) (describing

§841(b)(4) as a “mitigating exception”); United States v.

Hamlin, 319 F. 3d 666, 670 (CA4 2003) (collecting cases),

and the Court does not disagree, ante, at 11–13.

Confirmation of this interpretation is provided by the

use of the term “small amount” in §841(b)(4). If §841(b)(4)

had been meant to alter the elements of §841(a), Congress

surely would not have used such a vague term. Due pro-

cess requires that the elements of a criminal statute be

defined with specificity. Connally v. General Constr. Co.,

269 U. S. 385, 393 (1926). Accordingly, it is apparent that

§841(b)(4) does not modify the elements of §841(a) but

instead constitutes what is in essence a mandatory sen-

tencing guideline. Under this provision, if a defendant is

convicted of violating §841(a), the defendant may attempt

to prove that he possessed only a “small amount” of mari-

juana and that he did not intend to obtain remuneration

for its distribution. If the defendant succeeds in convinc-

ing the sentencing judge, the maximum term of imprison-

ment is lowered to one year.

In sum, contrary to the impression that the Court’s

Cite as: 569 U. S. ____ (2013) 7

ALITO, J., dissenting

opinion seeks to convey, the Court’s analysis does not

follow the pure categorical approach.

III

Nor is the Court’s analysis supported by prior case law.

The Court claims that its approach follows from our deci-

sion in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010),

but that case—unlike the Court’s opinion—faithfully ap-

plied the pure categorical approach.

In Carachuri-Rosendo, the alien had been convicted in

a Texas court for simple possession of a controlled sub-

stance. Id., at ___ (slip op., at 6). At the time of that

conviction, Carachuri-Rosendo had a prior state conviction

for simple possession, but this fact was not charged or

proved at his trial and was apparently not taken into

account in setting his sentence, which was 10 days in

jail. Id., at ___, ___–___ (slip op., at 5–6). Arguing that

Carachuri-Rosendo was ineligible for cancellation of re-

moval, the Government maintained that his second sim-

ple possession conviction qualified under the INA as a

conviction for an “aggravated felony.” Id., at ___ (slip op.,

at 5). This was so, the Government contended, because, if

Carachuri-Rosendo’s second simple-possession prosecution

had been held in federal court, he could have been pun-

ished by a sentence of up to two years due to his prior

simple possession conviction. Id., at ___ (slip op., at 5).

This more severe sentence, however, would have re-

quired the federal prosecutor to file a formal charge alleg-

ing the prior conviction; Carachuri-Rosendo would have

been given the opportunity to defend against that charge;

and the heightened sentence could not have been imposed

unless the court found that the prior conviction had oc-

curred. Id., at ___ (slip op., at 14).

Our rejection of the Government’s argument thus repre-

sented a straightforward application of the pure categori-

cal approach. The elements of the Texas offense for which

8 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

Carachuri-Rosendo was convicted were knowledge or

intent, possession of a controlled substance without a

prescription, and nothing more. Id., at ___ (slip op., at 6);

Tex. Health & Safety Code Ann. §§481.117(a), (b) (West

2010). Proof of a prior simple possession conviction was

not required, and no such proof appears to have been

offered. The maximum penalty that could have been

imposed under federal law for simple possession (without

proof of a prior simple possession conviction) was one

year’s imprisonment. Thus, proof in federal court of the

elements of the Texas offense would not have permitted a

felony-length sentence, and consequently the state convic-

tion did not qualify as a felony punishable under the CSA.

IV

Unsupported by either the categorical approach or our

prior cases, the decision of the Court rests instead on the

Court’s belief—which I share—that the application of the

pure categorical approach in this case would lead to re-

sults that Congress surely did not intend.

Suppose that an alien who is found to possess two mari-

juana cigarettes is convicted in a state court for possession

with intent to distribute based on evidence that he in-

tended to give one of the cigarettes to a friend. Under the

pure categorical approach, this alien would be regarded as

having committed an “aggravated felony.” But this classi-

fication is plainly out of step with the CSA’s assessment of

the severity of the alien’s crime because under the CSA

the alien could obtain treatment as a misdemeanant by

taking advantage of 21 U. S. C. §841(b)(4).

For this reason, I agree with the Court that such an

alien should not be treated as having committed an “ag-

gravated felony.” In order to avoid this result, however, it

is necessary to depart from the categorical approach, and

that is what the Court has done. But the particular way

in which the Court has departed has little to recommend

Cite as: 569 U. S. ____ (2013) 9

ALITO, J., dissenting

it.

To begin, the Court’s approach is analytically confused.

As already discussed, the Court treats §841(b)(4) as if it

modified the elements of §841(a), when in fact §841(b)(4)

does no such thing. And the Court obviously knows this

because it does not suggest that §841(b)(4) changes the

elements of §841(a) for criminal law purposes.3

In addition, the Court’s approach leads to the strange

and disruptive results noted at the beginning of this opin-

ion. As an initial matter, it leads to major drug traffick-

ing crimes in about half the States being excluded from

the category of “illicit trafficking in a controlled sub-

stance.” Moreover, it leads to significant disparities between

equally culpable defendants. We adopted the categorical ap-

proach to avoid disparities in our treatment of defendants

convicted in different States for committing the same

criminal conduct. See Taylor, 495 U. S., at 590–591 (re-

jecting the view that state law determined the meaning of

“burglary” because “[t]hat would mean that a person

convicted of unlawful possession of a firearm would, or

would not, receive a sentence enhancement based on

exactly the same conduct, depending on whether the State

——————

3 The Court defends its interpretation of 21 U. S. C. §§841(a), (b)(4) by

arguing that Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010), re-

jected any recourse to a “hypothetical approach” for determining how

a criminal prosecution likely would have proceeded, see ante, at 12,

and that is true enough. But, as discussed above, see n. 2, supra, just

because the categorical approach does not require conjecture as to

whether a hypothetical federal prosecutor would be likely to charge and

prove a prior conviction does not mean that it also precludes analysis of

the structure of the federal criminal statute at hand. Indeed, our

categorical-approach cases have done little else. See, e.g., Carachuri-

Rosendo, supra, at ___ (slip op., at 14) (discussing procedural protec-

tions Carachuri-Rosendo would have enjoyed had he been prosecuted

federally); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185, 189–194

(2007) (the term “theft offense” in 8 U. S. C. §1101(a)(43)(G) includes

the crime of aiding and abetting a theft offense).

10 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

of his prior conviction happened to call that conduct ‘bur-

glary’ ”). Yet the Court reintroduces significant disparity

into our treatment of drug offenders. All of this can be

avoided by candidly acknowledging that the categorical

approach is not the be-all and end-all.

When Congress wishes to make federal law dependent

on certain prior state convictions, it faces a difficult task.

The INA provisions discussed above confront this problem,

and their clear objective is to identify categories of crimi-

nal conduct that evidence such a high degree of societal

danger that an alien found to have engaged in such con-

duct should not be allowed to obtain permission to remain

in this country. Since the vast majority of crimes are

prosecuted in the state courts, Congress naturally looked

to state, as well as federal, convictions as a metric for

identifying these dangerous aliens.

But state criminal codes vary widely, and some state

crimes are defined so broadly that they encompass both

very serious and much less serious cases. In cases involv-

ing such state provisions, a pure categorical approach may

frustrate Congress’ objective.

The Court has said that the categorical approach finds

support in the term “conviction.” Taylor, supra, at 600;

Shepard v. United States, 544 U. S. 13, 19 (2005). But the

Court has never held that a pure categorical approach is

dictated by the use of that term,4 and I do not think that it

is. In ordinary speech, when it is said that a person was

convicted of or for doing something, the “something” may

include facts that go beyond the bare elements of the

——————

4 Instead, the Court adopted the categorical approach based on a

combination of factors, including judicial efficiency. See Taylor, 495

U. S., at 601 (“[T]he practical difficulties and potential unfairness of a

factual approach are daunting. In all cases where the Government

alleges that the defendant’s actual conduct would fit the generic defini-

tion of burglary, the trial court would have to determine what that

conduct was”).

Cite as: 569 U. S. ____ (2013) 11

ALITO, J., dissenting

relevant criminal offense. For example, it might be said

that an art thief was convicted of or for stealing a Rem-

brandt oil painting even though neither the identity of the

artist nor the medium used in the painting are elements of

the standard offense of larceny. See 3 W. LaFave, Sub-

stantive Criminal Law §19.1(a) (2d ed. 2003).

For these reasons, departures from the categorical

approach are warranted, and this Court has already sanc-

tioned such departures in several circumstances. See

Taylor, supra, at 602 (modified categorical approach);

Gonzales v. Duenas-Alvarez, 549 U. S. 183, 193 (2007)

(categorical approach does not exclude state-law convic-

tions unless there is “a realistic probability, not a theoreti-

cal possibility, that the State would apply its statute to

conduct that falls outside the generic definition of a

crime”); Nijhawan v. Holder, 557 U. S. 29, 32 (2009) (in-

terpreting an enumerated “aggravated felony” in 8 U. S. C.

§1101(a)(43) not to be a generic crime). Consistent with

the flexibility that the Court has already recognized, I

would hold that the categorical approach is not controlling

where the state conviction at issue was based on a state

statute that encompasses both a substantial number of

cases that qualify under the federal standard and a sub-

stantial number that do not. In such situations, it is

appropriate to look beyond the elements of the state of-

fense and to rely as well on facts that were admitted in

state court or that, taking a realistic view, were clearly

proved. Such a look beyond the elements is particularly

appropriate in a case like this, which involves a civil pro-

ceeding before an expert agency that regularly undertakes

factual inquiries far more daunting than any that would

be involved here. See, e.g., Negusie v. Holder, 555 U. S.

511 (2009).

Applying this approach in the present case, what we

find is that the Georgia statute under which petitioner

was convicted broadly encompasses both relatively minor

12 MONCRIEFFE v. HOLDER

ALITO, J., dissenting

offenses (possession of a small amount of marijuana with

the intent to share) and serious crimes (possession with

intent to distribute large amounts of marijuana in ex-

change for millions of dollars of profit). We also find that

petitioner had the opportunity before the BIA to show that

his criminal conduct fell into the category of relatively

minor offenses carved out by §841(b)(4). Administrative

Record 16–26. The BIA takes the entirely sensible view

that an alien who is convicted for possession with intent to

distribute may show that his conviction was not for an

“aggravated felony” by proving that his conduct fell within

§841(b)(4). Matter of Castro-Rodriguez, 25 I. & N. Dec.

698, 701–702 (2012). Petitioner, for whatever reason,

availed himself only of the opportunity to show that his

conviction had involved a small amount of marijuana and

did not present evidence—or even contend—that his of-

fense had not involved remuneration. Administrative

Record 16–26, 37. As a result, I think we have no alterna-

tive but to affirm the decision of the Court of Appeals,

which in turn affirmed the BIA.