Carachuri-Rosendo v. Holder

(Slip Opinion) OCTOBER TERM, 2009 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

CARACHURI-ROSENDO v. HOLDER, ATTORNEY

GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT

No. 09–60. Argued March 31, 2010—Decided June 14, 2010
Petitioner, a lawful permanent resident of the United States, faced de
portation after committing two misdemeanor drug offenses in Texas.
For the first, possession of a small amount of marijuana, he received
20 days in jail. For the second, possession without a prescription of
one antianxiety tablet, he received 10 days. Texas law, like federal
law, authorized a sentencing enhancement if the State proved that
petitioner had been previously convicted of a similar offense, but
Texas did not seek such an enhancement here. After the second con
viction, the Federal Government initiated removal proceedings. Peti
tioner conceded that he was removable, but claimed that he was eli
gible for discretionary cancellation of removal under the Immigration
and Nationality Act (INA) because he had not been convicted of any
“aggravated felony,” 8 U. S. C. §1229b(a)(3). Section 1101(a)(43)(B)
defines that term to include, inter alia, “illicit trafficking in a con
trolled substance . . . including a drug trafficking crime” as defined in
18 U. S. C. §924(c), which, in turn, defines a “drug trafficking crime”
as a “felony punishable under,” inter alia, “the Controlled Substances
Act (21 U. S. C. 801 et seq.).” A felony is a crime for which the
“maximum term of imprisonment authorized” is “more than one
year.” §3559(a). Simple possession offenses are ordinarily misde
meanors punishable with shorter sentences, but a conviction “after a
prior conviction under this subchapter [or] the law of any State . . .
has become final”—a “recidivist” simple possession offense—is “pun
ishable” as a “felony” under §924(c)(2) and subject to a 2-year sen
tence. Only this “recidivist” simple possession category might be an
“aggravated felony” under 8 U. S. C. §1101(a)(43). A prosecutor must
charge the existence of the prior conviction. See 21 U. S. C.
2 CARACHURI-ROSENDO v. HOLDER

Syllabus

§851(a)(1). Notice and an opportunity to challenge its validity,
§§851(b)–(c), are mandatory prerequisites to obtaining a punishment
based on the fact of the prior conviction and necessary prerequisites
to “authorize” a felony punishment, 18 U. S. C. §3559(a), for the sim
ple possession offense at issue.
Here, the Immigration Judge held that petitioner’s second simple
possession conviction was an “aggravated felony” that made him in
eligible for cancellation of removal. The Board of Immigration Ap
peals and Fifth Circuit affirmed. Relying on the holding in Lopez v.
Gonzales, 549 U. S. 47, 56—that to be an “aggravated felony” for im
migration law purposes, a state drug conviction must be punishable
as a felony under federal law—the court used a “hypothetical ap
proach,” concluding that because petitioner’s “conduct” could have
been prosecuted as a recidivist simple possession under state law, it
could have also been punished as a felony under federal law.
Held: Second or subsequent simple possession offenses are not aggra
vated felonies under §1101(a)(43) when, as in this case, the state con
viction is not based on the fact of a prior conviction. Pp. 9–19.
(a) Considering the disputed provisions’ terms and their “common
sense conception,” Lopez, 549 U. S., at 53, it would be counterintui
tive and “unorthodox” to apply an “aggravated felony” or “illicit traf
ficking” label to petitioner’s recidivist possession, see id., at 54. The
same is true for his penalty. One does not usually think of a 10-day
sentence for unauthorized possession of one prescription pill as an
“aggravated felony.” This Court must be very wary in this case be
cause the Government seeks a result that “the English language tells
[the Court] not to expect.” Ibid. Pp. 9–11.
(b) The Government’s position—that “conduct punishable as a fel
ony” should be treated as the equivalent of a felony conviction when
the underlying conduct could have been a felony under federal law—
is unpersuasive. First, it ignores the INA’s text, which limits the At
torney General’s cancellation power only when, inter alia, a nonciti
zen “has . . . been convicted of a[n] aggravated felony.” 8 U. S. C.
§1229b(a)(3). Thus, the conviction itself is the starting place, not
what might have or could have been charged. Under the Controlled
Substances Act, simple possession offenses carry only a 1-year sen
tence unless a prosecutor elects to charge the defendant as a recidi
vist and the defendant receives notice and an opportunity to defend
against that charge. Here, petitioner’s record of conviction contains
no finding of the fact of his prior drug offense. An immigration court
cannot, ex post, enhance the state offense of record just because facts
known to it would have authorized a greater penalty. The Govern
ment contends that had petitioner been prosecuted in federal court
under identical circumstances, he would have committed an “aggra
 Cite as: 560 U. S. ____ (2010) 3

Syllabus

vated felony” for immigration law purposes. But his circumstances
were not identical to the Government’s hypothesis. And the Govern
ment’s approach cannot be reconciled with 8 U. S. C. §1229b(a)(3),
which requires an “aggravated felony” conviction—not that the non
citizen merely could have been convicted of a felony but was not.
Second, the Government’s position fails to effectuate 21 U. S. C.
§851’s mandatory notice and process requirements, which have great
practical significance with respect to the conviction itself and are in
tegral to the structure and design of federal drug laws. They author
ize prosecutors to exercise discretion when electing whether to pur
sue a recidivist enhancement. So do many state criminal codes,
including Texas’. Permitting an immigration judge to apply his own
recidivist enhancement after the fact would denigrate state prosecu
tors’ independent judgment to execute such laws. Third, the Fifth
Circuit misread Lopez. This Court never used a “hypothetical ap
proach” in its analysis. By focusing on facts known to the immigra
tion court that could have but did not serve as the basis for the state
conviction and punishment, the Circuit’s approach introduces a level
of conjecture that has no basis in Lopez. Fourth, the Government’s
argument is inconsistent with common practice in the federal courts,
for it is quite unlikely that petitioner’s conduct would have been pun
ished as a felony in federal court. Finally, as the Court noted in Leo
cal v. Ashcroft, 543 U. S. 1, 11, n. 8, ambiguities in criminal statutes
referenced in immigration laws should be construed in the nonciti
zen’s favor. Notably, here, the question whether petitioner has com
mitted an “aggravated felony” is relevant to the type of relief he may
obtain from a removal order, but not to whether he is in fact remov
able. Thus, any relief he may obtain still depends on the Attorney
General’s discretion. Pp. 11–18.
570 F. 3d 263, reversed.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ.,
joined. SCALIA, J., and THOMAS, J., filed opinions concurring in the
judgment.
 Cite as: 560 U. S. ____ (2010) 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. 09–60
_________________

JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 14, 2010]

JUSTICE STEVENS delivered the opinion of the Court.
Petitioner Jose Angel Carachuri-Rosendo, a lawful
permanent resident who has lived in the United States
since he was five years old, faced deportation under fed
eral law after he committed two misdemeanor drug pos
session offenses in Texas. For the first, possession of less
than two ounces of marijuana, he received 20 days in jail.
For the second, possession without a prescription of one
tablet of a common antianxiety medication, he received 10
days in jail. After this second offense, the Federal Gov
ernment initiated removal proceedings against him. He
conceded that he was removable, but claimed he was
eligible for discretionary relief from removal under 8
U. S. C. §1229b(a).
To decide whether Carachuri-Rosendo is eligible to seek
cancellation of removal or waiver of inadmissibility under
§1229b(a), we must decide whether he has been convicted
of an “aggravated felony,” §1229b(a)(3), a category of
crimes singled out for the harshest deportation conse
quences. The Court of Appeals held that a simple drug
possession offense, committed after the conviction for a
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Opinion of the Court

first possession offense became final, is always an aggra
vated felony. We now reverse and hold that second or
subsequent simple possession offenses are not aggravated
felonies under §1101(a)(43) when, as in this case, the state
conviction is not based on the fact of a prior conviction.
I
Under the Immigration and Nationality Act (INA), 66
Stat. 163, as amended, 8 U. S. C. §1101 et seq., a lawful
permanent resident subject to removal from the United
States may apply for discretionary cancellation of removal
if, inter alia, he “has not been convicted of any aggravated
felony,” §1229b(a)(3). The statutory definition of the term
“aggravated felony” includes a list of numerous federal
offenses,1 one of which is “illicit trafficking in a controlled
substance . . . including a drug trafficking crime (as de
fined in section 924(c) of title 18).” §1101(a)(43)(B). Sec
tion 924(c)(2), in turn, defines a “drug trafficking crime” to
mean “any felony punishable under,” inter alia, “the Con
trolled Substances Act (21 U. S. C. 801 et seq.).” A felony
is a crime for which the “maximum term of imprisonment
authorized” is “more than one year.” 18 U. S. C. §3559(a).2
The maze of statutory cross-references continues. Sec
tion 404 of the Controlled Substances Act criminalizes
simple possession offenses, the type of offense at issue in
this case. But it prescribes punishment for both misde
meanor and felony offenses. Except for simple possession
of crack cocaine or flunitrazepam, a first-time simple
possession offense is a federal misdemeanor; the maxi
——————
1 Theterm “aggravated felony” “applies to an offense . . . whether in
violation of Federal or State law” (or, in certain circumstances, “the law
of a foreign country”). 8 U. S. C. § 1101(a)(43).
2 The Controlled Substances Act itself defines the term “felony” as

“any Federal or State offense classified by applicable Federal or State
law as a felony.” 21 U. S. C. §802(13). The Government concedes that
the classification of felonies under 18 U. S. C. §3559(a) controls in this
case. Brief for Respondent 4.
 Cite as: 560 U. S. ____ (2010) 3

Opinion of the Court

mum term authorized for such a conviction is less than
one year. 21 U. S. C. §844(a). However, a conviction for a
simple possession offense “after a prior conviction under
this subchapter [or] under the law of any State . . . has
become final”—what we will call recidivist simple posses
sion3—may be punished as a felony, with a prison sen
tence of up to two years. Ibid.4 Thus, except for simple
possession offenses involving isolated categories of drugs
not presently at issue, only recidivist simple possession
offenses are “punishable” as a federal “felony” under the
Controlled Substances Act, 18 U. S. C. §924(c)(2). And
thus only a conviction within this particular category of
simple possession offenses might, conceivably, be an “ag
gravated felony” under 8 U. S. C. §1101(a)(43).
For a subsequent simple possession offense to be eligible
for an enhanced punishment, i.e., to be punishable as a
felony, the Controlled Substances Act requires that a
prosecutor charge the existence of the prior simple posses
——————
3 Although §844(a) does not expressly define a separate offense of
“recidivist simple possession,” the fact of a prior conviction must none
theless be found before a defendant is subject to a felony sentence.
True, the statutory scheme comports with Almendarez-Torres v. United
States, 523 U. S. 224, 247 (1998), in which we explained that the
Constitution does not require treating recidivism as an element of the
offense. In other words, Congress has permissibly set out a criminal
offense for simple possession whereby a recidivist finding by the judge,
by a preponderance of the evidence, authorizes a punishment that
exceeds the statutory maximum penalty for a simple possession offense.
But the fact of a prior conviction must still be found—if only by a judge
and if only by a preponderance of the evidence—before a defendant is
subject to felony punishment. For present purposes, we therefore view
§844(a)’s felony simple possession provision as separate and distinct
from the misdemeanor simple possession offense that section also
prescribes.
4 The statute provides in relevant part: “Any person who violates this

subsection may be sentenced to a term of imprisonment of not more
than 1 year . . . except that if he commits such offense after a prior
conviction . . . he shall be sentenced to a term of imprisonment for not
less than 15 days but not more than 2 years . . . .” 21 U. S. C. §844(a).
4 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

sion conviction before trial, or before a guilty plea. See 21
U. S. C. §851(a)(1).5 Notice, plus an opportunity to chal
lenge the validity of the prior conviction used to enhance
the current conviction, §§851(b)–(c), are mandatory pre
requisites to obtaining a punishment based on the fact of a
prior conviction.6 And they are also necessary prerequi
sites under federal law to “authorize” a felony punish
ment, 18 U. S. C. §3559(a), for the type of simple posses
sion offense at issue in this case.
Neither the definition of an “illicit trafficking” offense
under 8 U. S. C. §1101(a)(43)(B) nor that of a “drug traf
ficking crime” under 18 U. S. C. §924(c)(2) describes or
references any state offenses. The “aggravated felony”
definition does explain that the term applies “to an offense
described in this paragraph whether in violation of Fed
eral or State law.” §1101(a)(43). But in Lopez v. Gonzales,
549 U. S. 47, 56 (2006), we determined that, in order to be
——————
5 This subsection provides: “No person who stands convicted of an

offense under this part shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before trial, or before
entry of a plea of guilty, the United States attorney files an information
with the court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous convictions to be
relied upon.” §851(a)(1).
6 We have previously recognized the mandatory nature of these re

quirements, as have the courts of appeals. See United States v. La-
Bonte, 520 U. S. 751, 754, n. 1 (1997) (“We note that imposition of an
enhanced penalty [for recidivism] is not automatic. . . . If the Govern
ment does not file such notice [under 21 U. S. C. §851(a)(1)] . . . the
lower sentencing range will be applied even though the defendant may
otherwise be eligible for the increased penalty”); see also, e.g., United
States v. Beasley, 495 F. 3d 142, 148 (CA4 2007); United States v.
Ceballos, 302 F. 3d 679, 690–692 (CA7 2002); United States v. Dodson,
288 F. 3d 153, 159 (CA5 2002); United States v. Mooring, 287 F. 3d 725,
727–728 (CA8 2002). Although §851’s procedural safeguards are not
constitutionally compelled, see Almendarez-Torres, 523 U. S., at 247,
they are nevertheless a mandatory feature of the Controlled Substances
Act and a prerequisite to securing a felony conviction under §844(a) for
a successive simple possession offense.
 Cite as: 560 U. S. ____ (2010) 5

Opinion of the Court

an “aggravated felony” for immigration law purposes, a
state drug conviction must be punishable as a felony
under federal law. We held that “a state offense consti
tutes a ‘felony punishable under the Controlled Sub
stances Act’ only if it proscribes conduct punishable as a
felony under that federal law.” Id., at 60. Despite the fact
that the Lopez petitioner had been punished as a felon
under state law—and, indeed, received a 5-year sen
tence—the conduct of his offense was not punishable as a
felony under federal law, and this prevented the state
conviction from qualifying as an aggravated felony for
immigration law purposes. Id., at 55 (“Unless a state
offense is punishable as a federal felony it does not
count”).
In the case before us, the Government argues that Cara
churi-Rosendo, despite having received only a 10-day
sentence for his Texas misdemeanor simple possession
offense, nevertheless has been “convicted” of an “aggra
vated felony” within the meaning of the INA. This is so,
the Government contends, because had Carachuri-
Rosendo been prosecuted in federal court instead of state
court, he could have been prosecuted as a felon and re
ceived a 2-year sentence based on the fact of his prior
simple possession offense. Our holding in Lopez teaches
that, for a state conviction to qualify as an “aggravated
felony” under the INA, it is necessary for the underlying
conduct to be punishable as a federal felony. Id., at 60.
We now must determine whether the mere possibility, no
matter how remote, that a 2-year sentence might have
been imposed in a federal trial is a sufficient basis for
concluding that a state misdemeanant who was not
charged as a recidivist has been “convicted” of an “aggra
vated felony” within the meaning of §1229b(a)(3).
II
Carachuri-Rosendo was born in Mexico in 1978. He
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Opinion of the Court

came to the United States with his parents in 1983 and
has been a lawful permanent resident of Texas ever since.
His common-law wife and four children are American
citizens, as are his mother and two sisters.
Like so many in this country, Carachuri-Rosendo has
gotten into some trouble with our drug laws. In 2004, he
pleaded guilty to possessing less than two ounces of mari
juana, a Class B misdemeanor, and was sentenced to
confinement for 20 days by a Texas court. See App. 19a–
22a; Tex. Health & Safety Code Ann. §§481.121(a) and
(b)(1) (West 2003). In 2005, he pleaded nolo contendere to
possessing less than 28 grams—one tablet—of alprazolam
(known commercially as Xanax) without a prescription, a
Class A misdemeanor. See App. 31a–34a; Tex. Health &
Safety Code Ann. §§481.117(a) and (b). Although Texas
law, like federal law, authorized a sentencing enhance
ment if the prosecutor proved that Carachuri-Rosendo had
been previously convicted of an offense of a similar class,
the State did not elect to seek an enhancement based on
his criminal history. App. 32a.
In 2006, on the basis of Carachuri-Rosendo’s second
possession offense, the Federal Government initiated
removal proceedings against him. Appearing pro se before
the Immigration Judge, Carachuri-Rosendo did not dis
pute that his conviction for possessing one tablet of Xanax
without a prescription made him removable,7 but he ap
plied for a discretionary cancellation of removal pursuant
to 8 U. S. C. §1229b(a). Under that statutory provision,
the Attorney General may cancel an order of removal or
an order of inadmissibility so long as, inter alia, the non
citizen “has not been convicted of a[n] aggravated felony.”
§1229b(a)(3). The Immigration Judge held that peti
——————
7 But for trivial marijuana possession offenses (such as Carachuri-

Rosendo’s 2004 state offense), virtually all drug offenses are grounds
for removal under 8 U. S. C. §1227(a)(2)(B)(i).
 Cite as: 560 U. S. ____ (2010) 7

Opinion of the Court

tioner’s second simple possession conviction was an “ag
gravated felony” that made him ineligible for cancellation
of removal.
The Board of Immigration Appeals (BIA) followed Cir
cuit precedent and affirmed that decision, but it disagreed
with the Immigration Judge’s legal analysis. In its en
banc opinion, the BIA ruled that in cases arising in Cir
cuits in which the question had not yet been decided, the
BIA would not treat a second or successive misdemeanor
conviction as an aggravated felony unless the conviction
contained a finding that the offender was a recidivist.
In re Carachuri-Rosendo, 24 I. & N. Dec. 382, 387, 391
(2007).
The BIA explained that the statutory question is com
plicated by the fact that “ ‘recidivist possession’ ” is not a
“discrete offense under Federal law.” Id., at 388. While
most federal offenses are defined by elements that must be
proved to a jury beyond a reasonable doubt, recidivist
possession is an “amalgam of elements, substantive sen
tencing factors, and procedural safeguards.” Id., at 389.
Section 844(a) defines simple possession by reference to
statutory elements, but “facts leading to recidivist felony
punishment, such as the existence of a prior conviction, do
not qualify as ‘elements’ in the traditional sense.” Ibid.
The BIA observed, however, that “21 U. S. C. §851
precludes a Federal judge from enhancing a drug of
fender’s sentence on the basis of recidivism absent compli
ance with a number of safeguards that, among other
things, serve to protect the right of the accused to notice
and an opportunity to be heard as to the propriety of an
increased punishment based on prior convictions.” Ibid.
Therefore, these requirements “are part and parcel of
what it means for a crime to be a ‘recidivist’ offense.” Id.,
at 391. “[U]nless the State successfully sought to impose
punishment for a recidivist drug conviction,” the BIA
concluded, a state simple possession “conviction cannot
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Opinion of the Court

‘proscribe conduct punishable as’ recidivist possession”
under federal law. Ibid.
On review, the Court of Appeals affirmed the BIA’s
decision in Carachuri-Rosendo’s case, reading our decision
in Lopez as dictating its outcome. “[I]f the conduct pro
scribed by the state offense could have been prosecuted as
a felony” under the Controlled Substances Act, the court
reasoned, then the defendant’s conviction qualifies as an
aggravated felony. 570 F. 3d 263, 267 (CA5 2009) (citing
Lopez, 549 U. S., at 60). The court deemed its analysis
“the hypothetical approach,” a term it derived from its
understanding of our method of analysis in Lopez. 570
F. 3d, at 266, and n. 3; see also United States v. Pacheco-
Diaz, 513 F. 3d 776, 779 (CA7 2008) (per curiam) (employ
ing the “hypothetical-federal-felony approach”). Under
this approach, as the Court of Appeals understood it,
courts “g[o] beyond the state statute’s elements to look at
the hypothetical conduct a state statute proscribes.” 570
F. 3d, at 266, n. 3. Accordingly, any “conduct” that “hypo
thetically” “could have been punished as a felony” “had [it]
been prosecuted in federal court” is an “aggravated felony”
for federal immigration law purposes. Id., at 265. In
applying this hypothetical approach, the Court of Appeals
did not discuss the §851 procedural requirements. In
stead, it concluded that because Carachuri-Rosendo’s
“conduct” could have been prosecuted as simple possession
with a recidivist enhancement under state law—even
though it was not—it could have also been punished as a
felony under federal law. Thus, in the Court of Appeals’
view, his conviction for simple possession under state law,
without a recidivist enhancement, was an “aggravated
felony” for immigration law purposes.8
——————
8 Since the Court of Appeals issued its decision in this case, Cara

churi-Rosendo has been removed. Brief for Respondent 10–11. Neither
party, however, has suggested that this case is now moot. If Carachuri
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Opinion of the Court

We granted certiorari to resolve the conflict among the
Courts of Appeals over whether subsequent simple posses
sion offenses are aggravated felonies.9 558 U. S. ____
(2009).
III
When interpreting the statutory provisions under dis
pute, we begin by looking at the terms of the provisions
and the “commonsense conception” of those terms. Lopez,
549 U. S., at 53. Carachuri-Rosendo is ineligible for can
cellation of removal only if he was “convicted of a[n] ag
gravated felony,” 8 U. S. C. §1229b(a), which, in this case,
could only be a conviction for “illicit trafficking in a con
trolled substance . . . . including a drug trafficking crime,”
§1101(a)(43)(B).
A recidivist possession offense such as Carachuri-
Rosendo’s does not fit easily into the “everyday under
standing” of those terms, Lopez, 549 U. S., at 53. This
type of petty simple possession offense is not typically
thought of as an “aggravated felony” or as “illicit traffick
ing.” We explained in Lopez that “ordinarily ‘trafficking’
means some sort of commercial dealing.” Id., at 53–54
(citing Black’s Law Dictionary 1534 (8th ed. 2004)). And
just as in Lopez, “[c]ommerce . . . was no part of” Cara
——————
Rosendo was not convicted of an “aggravated felony,” and if he contin
ues to satisfy the requirements of 8 U. S. C. §1229b(a), he may still seek
cancellation of removal even after having been removed. See §1229b(a)
(“The Attorney General may cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the alien” meets
several criteria).
9 Compare 570 F. 3d 263 (CA5 2009) (holding state conviction for

simple possession after prior conviction for simple possession is a felony
under the Controlled Substances Act and thus an aggravated felony),
and Fernandez v. Mukasey, 544 F. 3d 862 (CA7 2008) (same), with
Berhe v. Gonzales, 464 F. 3d 74 (CA1 2006) (taking contrary view),
Alsol v. Mukasey, 548 F. 3d 207 (CA2 2008) (same), Gerbier v. Holmes,
280 F. 3d 297 (CA3 2002) (same), and Rashid v. Mukasey, 531 F. 3d 438
(CA6 2008) (same).
10 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

churi-Rosendo’s possessing a single tablet of Xanax, “and
certainly it is no element of simple possession.” 549 U. S.,
at 54. As an initial matter, then, we observe that a read
ing of this statutory scheme that would apply an “aggra
vated” or “trafficking” label to any simple possession of
fense is, to say the least, counterintuitive and
“unorthodox,” ibid.
The same is true for the type of penalty at issue. We do
not usually think of a 10-day sentence for the unauthor
ized possession of a trivial amount of a prescription drug
as an “aggravated felony.” A “felony,” we have come to
understand, is a “serious crime usu[ally] punishable by
imprisonment for more than one year or by death.”
Black’s Law Dictionary 694 (9th ed. 2009) (hereinafter
Black’s). An “aggravated” offense is one “made worse or
more serious by circumstances such as violence, the pres
ence of a deadly weapon, or the intent to commit another
crime.” Id., at 75. The term “aggravated felony” is unique
to Title 8, which covers immigration matters; it is not a
term used elsewhere within the United States Code. Our
statutory criminal law classifies the most insignificant of
federal felonies—“Class E” felonies—as carrying a sen
tence of “less than five years but more than one year.” 18
U. S. C. §3559(a)(5). While it is true that a defendant’s
criminal history might be seen to make an offense “worse”
by virtue thereof, Black’s 75, it is nevertheless unorthodox
to classify this type of petty simple possession recidivism
as an “aggravated felony.”
Of course, as Justice Souter observed in his opinion for
the Court in Lopez, Congress, like “Humpty Dumpty,” has
the power to give words unorthodox meanings. 549 U. S.,
at 54. But in this case the Government argues for a result
that “the English language tells us not to expect,” so we
must be “very wary of the Government’s position.” Ibid.
Because the English language tells us that most aggra
vated felonies are punishable by sentences far longer than
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Opinion of the Court

10 days, and that mere possession of one tablet of Xanax
does not constitute “trafficking,” Lopez instructs us to be
doubly wary of the Government’s position in this case.10
IV
The Government’s position, like the Court of Appeals’
“hypothetical approach,” would treat all “conduct punish
able as a felony” as the equivalent of a “conviction” of a
felony whenever, hypothetically speaking, the underlying
conduct could have received felony treatment under fed
eral law. We find this reasoning—and the “hypothetical
approach” itself—unpersuasive for the following reasons.
First, and most fundamentally, the Government’s posi
tion ignores the text of the INA, which limits the Attorney
General’s cancellation power only when, inter alia, a
noncitizen “has . . . been convicted of a[n] aggravated
felony.” 8 U. S. C. §1229b(a)(3) (emphasis added). The
text thus indicates that we are to look to the conviction
itself as our starting place, not to what might have or
could have been charged. And to be convicted of an aggra
vated felony punishable as such under the Controlled
——————
10 The Court stated in Lopez that “recidivist possession, see 21

U. S. C. §844(a), clearly fall[s] within the definitions used by Congress
in 8 U. S. C. §1101(a)(43)(B) and 18 U. S. C. §924(c)(2), regardless of
whether these federal possession felonies or their state counterparts
constitute ‘illicit trafficking in a controlled substance’ or ‘drug traffick
ing’ as those terms are used in ordinary speech.” 549 U. S., at 55, n. 6.
Our decision today is not in conflict with this footnote; it is still true
that recidivist simple possession offenses charged and prosecuted as
such “clearly fall” within the definition of an aggravated felony. What
we had no occasion to decide in Lopez, and what we now address, is
what it means to be convicted of an aggravated felony. Lopez teaches
us that it is necessary that the conduct punished under state law
correspond to a felony punishable under the Controlled Substances Act
to be an aggravated felony under §1101(a)(43)(B). But it does not
instruct as to whether the mere possibility that conduct could be—but
is not—charged as an offense punishable as a felony under federal law
is sufficient.
12 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

Substances Act, the “maximum term of imprisonment
authorized” must be “more than one year,” 18 U. S. C.
§3559(a)(5). Congress, recall, chose to authorize only a 1
year sentence for nearly all simple possession offenses, but
it created a narrow exception for those cases in which a
prosecutor elects to charge the defendant as a recidivist
and the defendant receives notice and an opportunity to
defend against that charge. See 21 U. S. C. §851; Part I,
supra.
Indisputably, Carachuri-Rosendo’s record of conviction
contains no finding of the fact of his prior drug offense.
Carachuri-Rosendo argues that even such a finding would
be insufficient, and that a prosecutorial charge of recidi
vism and an opportunity to defend against that charge
also would be required before he could be deemed “con
victed” of a felony punishable under the Controlled Sub
stances Act. In the absence of any finding of recidivism,
we need not, and do not, decide whether these additional
procedures would be necessary. Although a federal immi
gration court may have the power to make a recidivist
finding in the first instance, see, e.g., Almendarez-Torres
v. United States, 523 U. S. 224, 247 (1998), it cannot,
ex post, enhance the state offense of record just because
facts known to it would have authorized a greater penalty
under either state or federal law.11 Carachuri-Rosendo
——————
11 Our decision last Term in Nijhawan v. Holder, 557 U. S. ___ (2009),

also relied upon by the Government, is not to the contrary. In that
case, we rejected the so-called categorical approach employed in cases
like United States v. Rodriquez, 553 U. S. 377 (2008), when assessing
whether, under 8 U. S. C. §1101(a)(43)(M)(i), a noncitizen has commit
ted “an offense that . . . involves fraud or deceit in which the loss to the
. . . victims exceeds $10,000.” Our analysis was tailored to the “circum
stance-specific” language contained in that particular subsection of the
aggravated felony definition. Nijhawan, 557 U. S., at ___ (slip op., at
8). And we specifically distinguished the “generic” categories of aggra
vated felonies for which a categorical approach might be appropriate—
including the “illicit trafficking” provision—from the “circumstance
 Cite as: 560 U. S. ____ (2010) 13

Opinion of the Court

was not actually “convicted,” §1229b(a)(3), of a drug pos
session offense committed “after a prior conviction . . . has
become final,” §844(a), and no subsequent development
can undo that history.12
The Government contends that if Carachuri-Rosendo
had been prosecuted in federal court for simple possession
under 21 U. S. C. §844(a) under identical circumstances,
he would have committed an “aggravated felony” for im
migration law purposes. Tr. of Oral Arg. 36–37. This is

——————
specific” offense at hand. Id., at ___ (slip op., at 6–7, 8). Moreover,
unlike the instant case, there was no debate in Nijhawan over whether
the petitioner actually had been “convicted” of fraud; we only consid
ered how to calculate the amount of loss once a conviction for a particu
lar category of aggravated felony has occurred.
12 Linking our inquiry to the record of conviction comports with how

we have categorized convictions for state offenses within the definition
of generic federal criminal sanctions under the Armed Career Criminal
Act (ACCA), 18 U. S. C. §924(e). The United States urges that our
decision in Rodriquez, 553 U. S. 377, an ACCA case, supports its
position in this case. Brief for Respondent 29–30. To the extent that
Rodriquez is relevant to the issue at hand, we think the contrary is
true. In that decision we considered whether a recidivist finding under
state law that had the effect of increasing the “maximum term of
imprisonment” to 10 years, irrespective of the actual sentence imposed,
made the offense a “serious drug offense” within the meaning of 18
U. S. C. §924(e)(1) and therefore an ACCA predicate offense. 553 U. S.,
at 382. We held that a recidivist finding could set the “maximum term
of imprisonment,” but only when the finding is a part of the record of
conviction. Id., at 389. Indeed, we specifically observed that “in those
cases in which the records that may properly be consulted do not show
that the defendant faced the possibility of a recidivist enhancement, it
may well be that the Government will be precluded from establishing
that a conviction was for a qualifying offense.” Ibid. In other words,
when the recidivist finding giving rise to a 10-year sentence is not
apparent from the sentence itself, or appears neither as part of the
“judgment of conviction” nor the “formal charging document,” ibid., the
Government will not have established that the defendant had a prior
conviction for which the maximum term of imprisonment was 10 years
or more (assuming the recidivist finding is a necessary precursor to
such a sentence).
14 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

so, the Government suggests, because the only statutory
text that matters is the word “punishable” in 18 U. S. C.
§924(c)(2): Whatever conduct might be “punishable” as a
felony, regardless of whether it actually is so punished or
not, is a felony for immigration law purposes. But for the
reasons just stated, the circumstances of Carachuri-
Rosendo’s prosecution were not identical to those hypothe
sized by the Government. And the Government’s ab
stracted approach to §924(c)(2) cannot be reconciled with
the more concrete guidance of 8 U. S. C. §1229b(a)(3),
which limits the Attorney General’s cancellation authority
only when the noncitizen has actually been “convicted of
a[n] aggravated felony”—not when he merely could have
been convicted of a felony but was not.
Second, and relatedly, the Government’s position fails to
give effect to the mandatory notice and process require
ments contained in 21 U. S. C. §851. For federal law
purposes, a simple possession offense is not “punishable”
as a felony unless a federal prosecutor first elects to
charge a defendant as a recidivist in the criminal informa
tion. The statute, as described in Part I, supra, at 3–4,
speaks in mandatory terms, permitting “[n]o person” to be
subject to a recidivist enhancement—and therefore, in this
case, a felony sentence—“unless” he has been given notice
of the Government’s intent to prove the fact of a prior
conviction. Federal law also gives the defendant an oppor
tunity to challenge the fact of the prior conviction itself.
§§851(b)–(c). The Government would dismiss these proce
dures as meaningless, so long as they may be satisfied
during the immigration proceeding.
But these procedural requirements have great practical
significance with respect to the conviction itself and are
integral to the structure and design of our drug laws.
They authorize prosecutors to exercise discretion when
electing whether to pursue a recidivist enhancement. See
United States v. Dodson, 288 F. 3d 153, 159 (CA5 2002)
 Cite as: 560 U. S. ____ (2010) 15

Opinion of the Court

(“Whereas the prior version of [§851(a)] made enhance
ments for prior offenses mandatory, the new statutory
scheme gave prosecutors discretion whether to seek en
hancements based on prior convictions”). Because the
procedures are prerequisites to an enhanced sentence,
§851 allows federal prosecutors to choose whether to seek
a conviction that is “punishable” as a felony under §844(a).
Underscoring the significance of the §851 procedures,
the United States Attorney’s Manual places decisions
with respect to seeking recidivist enhancements on
par with the filing of a criminal charge against a
defendant. See Dept. of Justice, United States Attor-
neys’ Manual §9–27.300(B) comment. (1997), online
at http://www.justice.gov/usao/eousa/foia_reading_room/
usam/title9/27mcrm.htm#9-27.300 (as visited June 3,
2010, and available in Clerk of Court’s case file). (“Every
prosecutor should regard the filing of an information
under 21 U. S. C. §851 . . . as equivalent to the filing of
charges”).
Many state criminal codes, like the federal scheme,
afford similar deference to prosecutorial discretion when
prescribing recidivist enhancements. Texas is one such
State. See, e.g., Tex. Penal Code Ann. §§12.42, 12.43
(West 2003) (recidivist enhancement is available “[i]f it is
shown on the trial” that defendant was previously con
victed of identified categories of felonies and misdemean
ors). And, in this case, the prosecutor specifically elected
to “[a]bandon” a recidivist enhancement under state law.
App. 32a (reproducing state judgment). Were we to permit
a federal immigration judge to apply his own recidivist
enhancement after the fact so as to make the noncitizen’s
offense “punishable” as a felony for immigration law pur
poses, we would denigrate the independent judgment of
state prosecutors to execute the laws of those sovereigns.
Third, the Court of Appeals’ hypothetical felony ap
proach is based on a misreading of our decision in Lopez.
16 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

We never used the term “hypothetical” to describe our
analysis in that case. We did look to the “proscribe[d]
conduct” of a state offense to determine whether it is
“punishable as a felony under that federal law.” 549 U. S.,
at 60. But the “hypothetical approach” employed by the
Court of Appeals introduces a level of conjecture at the
outset of this inquiry that has no basis in Lopez. It ig
nores both the conviction (the relevant statutory hook),
and the conduct actually punished by the state offense.
Instead, it focuses on facts known to the immigration court
that could have but did not serve as the basis for the state
conviction and punishment. As the Sixth Circuit has
explained, this approach is really a “ ‘hypothetical to a
hypothetical.’ ” Rashid v. Mukasey, 531 F. 3d 438, 445
(2008). Not only does the Government wish us to consider
a fictional federal felony—whether the crime for which
Carachuri-Rosendo was actually convicted would be a
felony under the Controlled Substances Act—but the
Government also wants us to consider facts not at issue in
the crime of conviction (i.e., the existence of a prior convic
tion) to determine whether Carachuri-Rosendo could have
been charged with a federal felony. This methodology is
far removed from the more focused, categorical inquiry
employed in Lopez.
Fourth, it seems clear that the Government’s argument
is inconsistent with common practice in the federal courts.
It is quite unlikely that the “conduct” that gave rise to
Carachuri-Rosendo’s conviction would have been punished
as a felony in federal court. Under the United States
Sentencing Guidelines, Carachuri-Rosendo’s recom
mended sentence, based on the type of controlled sub
stance at issue, would not have exceeded one year and
very likely would have been less than 6 months. See
United States Sentencing Commission, Guidelines Manual
§2D2.1(a)(3) (Nov. 2009) (base offense level of 4). And as
was true in Lopez, the Government has provided us with
 Cite as: 560 U. S. ____ (2010) 17

Opinion of the Court

no empirical data suggesting that “even a single eager
Assistant United States Attorney” has ever sought to
prosecute a comparable federal defendant as a felon. 549
U. S., at 57–58. The Government’s “hypothetical” ap
proach to this case is therefore misleading as well as
speculative, in that Carachuri-Rosendo’s federal-court
counterpart would not, in actuality, have faced any felony
charge.
Finally, as we noted in Leocal v. Ashcroft, 543 U. S. 1,
11, n. 8 (2004), ambiguities in criminal statutes referenced
in immigration laws should be construed in the nonciti
zen’s favor. And here the critical language appears in a
criminal statute, 18 U. S. C. §924(c)(2).
We note that whether a noncitizen has committed an
“aggravated felony” is relevant, inter alia, to the type of
relief he may obtain from a removal order, but not to
whether he is in fact removable. In other words, to the
extent that our rejection of the Government’s broad un
derstanding of the scope of “aggravated felony” may have
any practical effect on policing our Nation’s borders, it is a
limited one. Carachuri-Rosendo, and others in his posi
tion, may now seek cancellation of removal and thereby
avoid the harsh consequence of mandatory removal. But
he will not avoid the fact that his conviction makes him, in
the first instance, removable. Any relief he may obtain
depends upon the discretion of the Attorney General.
* * *
In sum, the Government is correct that to qualify as an
“aggravated felony” under the INA, the conduct prohibited
by state law must be punishable as a felony under federal
law. See Lopez, 549 U. S., at 60. But as the text and
structure of the relevant statutory provisions demon
strate, the defendant must also have been actually con
victed of a crime that is itself punishable as a felony under
federal law. The mere possibility that the defendant’s
18 CARACHURI-ROSENDO v. HOLDER

Opinion of the Court

conduct, coupled with facts outside of the record of convic
tion, could have authorized a felony conviction under
federal law is insufficient to satisfy the statutory com
mand that a noncitizen be “convicted of a[n] aggravated
felony” before he loses the opportunity to seek cancellation
of removal. 8 U. S. C. §1229b(a)(3). The Court of Appeals,
as well as the Government, made the logical error of as
suming that a necessary component of an aggravated
felony is also sufficient to satisfy its statutory definition.
V
We hold that when a defendant has been convicted of a
simple possession offense that has not been enhanced
based on the fact of a prior conviction, he has not been
“convicted” under §1229b(a)(3) of a “felony punishable” as
such “under the Controlled Substances Act,” 18 U. S. C.
§924(c)(2). The prosecutor in Carachuri-Rosendo’s case
declined to charge him as a recidivist. He has, therefore,
not been convicted of a felony punishable under the Con
trolled Substances Act.
The judgment of the Court of Appeals is reversed.

It is so ordered.
 Cite as: 560 U. S. ____ (2010) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–60
_________________

JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 14, 2010]

JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that Carachuri-Rosendo’s 2005
conviction for simple possession of a tablet of Xanax in
violation of Texas law is not a conviction for an “aggra
vated felony” under 8 U. S. C. §1101(a)(43)(B). But my
reasoning is more straightforward than the Court’s, and so
I concur only in the judgment.
Under the Immigration and Nationality Act, the Attor
ney General may cancel the removal of an alien from the
United States provided the alien “has not been convicted
of any aggravated felony.” §1229b(a)(3). There is no
statutory definition of “convicted,” but a “conviction” is
defined to mean a “formal judgment of guilt of the alien
entered by a court.” §1101(a)(48)(A). The term “aggra
vated felony” includes, among many other offenses, “a
drug trafficking crime (as defined in [18 U. S. C. §924(c)]).”
§1101(a)(43)(B). A “drug trafficking crime” is in turn
defined as “any felony punishable under the Controlled
Substances Act.” 18 U. S. C. §924(c)(2).
It could be concluded from the provisions discussed
above that only a federal conviction for a felony offense
under the Controlled Substances Act would qualify under
8 U. S. C. §1101(a)(43)(B). But the penultimate sentence
in §1101(a)(43) provides that the statutory definition of
“aggravated felony” “applies to an offense described in this
2 CARACHURI-ROSENDO v. HOLDER

SCALIA, J., concurring in judgment

paragraph whether in violation of Federal or State law.”
This language, we have said, confirms that “a state offense
whose elements include the elements of a felony punish
able under the [Controlled Substances Act] is an aggra
vated felony.” Lopez v. Gonzales, 549 U. S. 47, 57 (2006).
The conceptual problem in the present case is that the
only crime defined by 21 U. S. C. §844(a) of the Controlled
Substances Act, simple possession of prohibited drugs, is a
misdemeanor. That misdemeanor becomes a “felony
punishable under the Controlled Substances Act” only
because the sentencing factor of recidivism authorizes
additional punishment beyond one year, the criterion for a
felony. We held in Almendarez-Torres v. United States,
523 U. S. 224 (1998), that recidivism can constitutionally
be made a sentencing factor rather than an element of the
crime, despite the fact that it is used to increase the al
lowable sentence. And we said in Lopez that a “state
possession crim[e] that correspond[s] to” the “felony viola
tio[n]” of “recidivist possession” in §844(a) “clearly fall[s]
within the definitions used by Congress . . . in
§1101(a)(43)(B) and . . . §924(c)(2).” 549 U. S., at 55, n. 6.
But to say all that is not to say that an alien has been
“convicted of” an aggravated felony (which is what
§1229b(a)(3) requires) when he has been convicted of
nothing more than a second state misdemeanor violation,
the punishment for which could, because of recidivism, be
extended beyond one year. Just because, by reason of
Almendarez-Torres, the federal misdemeanor offense has
been raised to a felony offense without changing its ele
ments, solely by increasing its penalty pursuant to a
recidivist “sentencing factor”; it does not follow that when
the question is asked whether someone has been “con
victed of” a state offense that “corresponds” to the federal
misdemeanor-become-felony, the answer can be sought in
sentencing factors. A defendant is not “convicted” of sen
tencing factors, but only of the elements of the crime
 Cite as: 560 U. S. ____ (2010) 3

SCALIA, J., concurring in judgment

charged in the indictment. In other words, a misdemeanor
offense with a sentencing factor that raises its punishment
to the felony level qualifies for purposes of establishing the
elements of a “felony punishable under the Controlled
Substances Act”; but does not qualify for purposes of de
termining what elements the alien has been “convicted of.”
Here, Carachuri-Rosendo was only “convicted of” the
crime of knowing possession of a controlled substance
without a valid prescription, a Class A misdemeanor
under Texas law. Tex. Health & Safety Code Ann.
§§481.117(a) and (b) (West Supp. 2009). Since the ele
ments of that crime did not include recidivism, the crime
of his conviction did not “correspond” to the Controlled
Substances Act felony of possession-plus-recidivism under
21 U. S. C. §844(a).
For these reasons, I concur in the judgment.
 Cite as: 560 U. S. ____ (2010) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–60
_________________

JOSE ANGEL CARACHURI-ROSENDO, PETITIONER v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[June 14, 2010]

JUSTICE THOMAS, concurring in the judgment.
A plain reading of 18 U. S. C. §924(c)(2) identifies two
requirements that must be satisfied for Carachuri-
Rosendo’s state conviction to qualify as a “ ‘drug trafficking
crime’ ” that renders him ineligible for cancellation of
removal:* “First, the offense must be a felony; second, the
offense must be capable of punishment under the Con
trolled Substances Act (CSA).” Lopez v. Gonzales, 549
U. S. 47, 61 (2006) (THOMAS, J., dissenting). Carachuri-
Rosendo’s offense of simple possession was “punishable
under the [CSA],” §924(c)(2), and thus satisfied the second
requirement, but his crime of conviction in state court was
only a misdemeanor. Accordingly, that offense does not
bar him from obtaining cancellation of removal.
The Fifth Circuit understandably felt constrained by
this Court’s decision in Lopez to rule otherwise. In Lopez,
this Court held that “a state offense constitutes a ‘felony
punishable under the [CSA]’ only if it proscribes conduct
——————
* See 8 U. S. C. §1229b(a) (permitting cancellation of removal);
§1229b(a)(3) (barring aliens convicted of an “aggravated felony” from
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” to mean “any felony pun
ishable under the Controlled Substances Act”).
2 CARACHURI-ROSENDO v. HOLDER

THOMAS, J., concurring in judgment

punishable as a felony under that federal law.” Id., at 60
(emphasis added). Though Lopez addressed a felony
conviction under state law that did not correlate to a
felony under the CSA, the Court’s rule preordained the
result in this case:
“[T]he Court admits that its reading will subject an
alien defendant convicted of a state misdemeanor to
deportation if his conduct was punishable as a felony
under the CSA. Accordingly, even if never convicted
of an actual felony, an alien defendant becomes eligi
ble for deportation based on a hypothetical federal
prosecution.” Id., at 67 (THOMAS, J., dissenting).
Today, the Court engages in jurisprudential gymnastics
to avoid Lopez. I will not contort the law to fit the case.
Lopez was wrongly decided. But because a proper reading
of the statutory text, see id., at 60–63, supports the result
the Court reaches today, I concur in the judgment.