Young v. Holder - Response (Hold)

No. 09-733

In the Supreme Court of the United States

LYNDON YOUNG, 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
SupremeCrBriefs@usdoj.gov
(202) 514-2217

In the Supreme Court of the United States

No. 09-733

LYNDON YOUNG, 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 aggravated felony is ineligible, inter alia, for discretionary cancel lation 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 provision in the Controlled Substances Act, 21 U.S.C. 844(a), a person who commits a drug possession offense after his con viction for a prior drug offense has become final may be punished as a felon.

Petitioner is an alien who conceded that he is remov able from the United States but sought cancellation of removal. Pet. App. 12a-13a. Petitioner had been con victed of a state drug possession offense after his prior state drug possession conviction had become final. Id. at 4a, 6a, 13a; see Pet. 3. The immigration judge deter

mined that petitioner's second drug possession offense qualifies as an "aggravated felony" that makes him in eligible for cancellation of removal. Pet. App. 14a n.1. The Board of Immigration Appeals and the court of appeals upheld that determination. Id. at 2a, 5a-6a.

Petitioner contends (Pet. 5, 11-15) that his second drug possession conviction does not qualify as an "ag gravated felony" because the state court did not sen tence him as a recidivist, using procedures like those ap plicable in federal court, in the prosecution for his sec ond drug possession offense. On December 14, 2009, this Court granted certiorari in Carachuri-Rosendo v. Holder, No. 09-60, to address whether a second or sub sequent state conviction for possession of a controlled substance automatically qualifies as an "aggravated fel ony" for purposes of 8 U.S.C. 1101(a)(43)(B), or instead qualifies only if the State actually 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 pre sents the same question as Carachuri-Rosendo, it should be held pending this Court's resolution of Carachuri-Rosendo, and then disposed of as appropriate in light of the decision in that case.1

Respectfully submitted.

ELENA KAGAN
Solicitor General

MARCH 2010

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