Case: 13-40924 Document: 00512984402 Page: 8 Date Filed: 03/27/2015
the everyday understand of trafficking.”
Before responding more fully to this
argument, we note that on the required categorical comparison between the
elements of Georgia’s possession with intent to distribute and those of the
generic offense, Moncrieffe seems to support the district court’s application of
the enhancement. In comparing the Georgia offense with the federal
possession with intent to distribute statute,
Moncrieffe recognized that the
elements are the same.
Thus, Georgia’s statute “necessarily proscribe[s]
conduct that is an offense under the [Controlled Substances Act].”
If it recognized that Georgia’s possession with intent to distribute statute
has the same elements as its federal counterpart, why did Moncrieffe
nonetheless find that a conviction under the Georgia statute did not require
mandatory deportation? The answer lies in Moncrieffe’s focus on the
Moncrieffe, 133 S. Ct. at 1693 (some internal quotation marks and ellipsis omitted)
(partially quoting Carachuri-Rosendo v. Holder, 560 U.S. 563, 566 (2010)).
The federal statute is only one source of the generic, contemporary meaning of “possession
with intent to distribute.” See supra note 13 and accompanying text. The Moncrieffe court
looked only to the federal Controlled Substances Act’s definition for comparison because the
Court was considering whether Moncrieffe’s prior conviction was an “aggravated felony”
under the INA, which defines drug trafficking crimes with reference to the Controlled
Substances Act. This is another reason why Moncrieffe is not controlling on the Guidelines
question which requires a broader survey for the categorical inquiry than just a comparison
with the federal statute. Notably, neither the dissent nor Martinez-Lugo, cite any other
—such as treaties, a consensus of state laws, or the Model Penal Code—that indicate
the generic meaning of possession with intent to distribute differs from the Georgia offense.
Because Georgia’s statute “makes it a crime to ‘. . . possess with intent to distribute
marijuana,’” and 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 marijuana,
§ 812(c),” “the state and federal provisions correspond.” Moncrieffe, 133 S. Ct. at 1685. And
when the government argued that the “‘elements’ 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,” the Court did not disagree with that premise. Id.
Id. at 1685.