Alexis v. Holder - Respone (Hold)

No. 09-955

In the Supreme Court of the United States

RICHARD LAWRENCE ALEXIS, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

In the Supreme Court of the United States

No. 09-955

RICHARD LAWRENCE ALEXIS, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT

An alien who has been convicted of an aggrava ted felony is ineligible, inter alia, for the discretionary relief of cancellation of removal. 8 U.S.C. 1229b(a)(3). Under 8 U.S.C. 1101(a)(43)(B), an "aggravated felony" includes any "drug trafficking crime," which is defined in 18 U.S.C. 924(c)(2) to include any "felony punishable under the Controlled Substances Act." Under one provi sion in the Controlled Substances Act, 21 U.S.C. 844(a), a person who commits a drug possession offense after his conviction for a prior drug offense has become final may be punished as a felon.

Petitioner is an alien who was found to be removable from the United States and sought cancellation of re moval. Pet. App. 9-12. Petitioner had been convicted of a state drug possession offense after a prior state drug possession conviction had become final. Id. at 5-6, 10- 11; see Pet. 5, 14-15. The immigration judge determined that petitioner's second drug possession offense quali fies as an "aggravated felony" that made him ineligible for cancellation of removal. Pet. App. 12. The Board of Immigration Appeals and the court of appeals upheld that determination. Id. at 2-3, 5-7.

Petitioner contends (Pet. 16-26) that his second drug possession offense does not qualify as "aggravated fel ony" because the state court did not sentence him as a recidivist, using procedures like those applicable in fed eral court, in the prosecution for his second drug posses sion offense. On December 14, 2009, this Court granted certiorari in Carachuri-Rosendo v. Holder, No. 09-60, to address whether a second or subsequent state offense of possession of a controlled substance automatically quali fies as an "aggravated felony" for purposes of 8 U.S.C. 1101(a)(43)(B), or instead qualifies only if the State actu ally applied a recidivist sentencing enhancement, using procedures like those applicable in federal court, in the prosecution for the second or subsequent offense. Because this petition presents the same question as Carachuri-Rosendo, it should be held pending this Court's resolution of Carachuri-Rosendo, and then dis posed of as appropriate in light of the decision in that case.1

Respectfully submitted.

ELENA KAGAN
Solicitor General

APRIL 2010

1 The government waives any further response to the petition unless the Court requests otherwise.