Drug Possession as an Aggravated Felony

Lopez v. Gonzales, 549 U.S. 47 (2006)

On January 8, 2007, the Supreme Court granted a writ of certiorari, vacated the judgment, and remanded the case to Eighth Circuit for further consideration in light of Lopez v. Gonzales. The case is Tostado-Tostado v. Carlson, No. 06-6766.
On December 5, 2006, the Supreme Court, in an 8-1 decision, held that drug possession convictions that qualify as state felonies, but would not qualify as felonies under federal law, are not “aggravated felonies” as defined under INA § 101(a)(43)(B) ("drug trafficking crimes"). In unqualified terms, the Court said, “Unless a state offense is punishable as a federal felony it does not count.” The Court rejected the government’s broad interpretation of what constitutes an aggravated felony and resolved a circuit split. Justice Souter authored the majority opinion, from which Justice Thomas dissented. See here to read the opinion.
The Court also dismissed the writ of certiorari in the companion case, Toledo-Flores v. U.S., No. 05-7664, 549 U.S. ___ (2006). Toledo-Flores addressed the aggravated felony issue in the criminal sentencing context. The Court noted that the writ of certiorari was improvidently granted.