August 2012 Archives

Sixth Circuit Court of Appeals Remands Oxycodone Case due to Improper Jury Charge

August 27, 2012, by The McKellar Law Firm, PLLC

Earlier this month, the Sixth Circuit Court of Appeals, in U.S. v. LaPointe, 2012 FED App. 11-5194 (6th Cir.), remanded the decision of the trial court where the defendant was originally charged with "conspiring to distribute or conspiring to possess with the intent to distribute oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (2) attempting to possess oxycodone with the intent to distribute in violation of 21 U.S.C. § 846." He was convicted on both counts and sentenced to sixty-three (63) months for each count to run concurrently.

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LaPointe appealed both counts and won his appeal on Count I based on the denial of the lower court to allow jury instruction of the lesser included offense of conspiracy to possess. The lower court argued that the charge of conspiracy to distribute did not always include conspiracy to possess. However, the appellate court found that the Indictment of LaPointe described Count I as conspiracy to possess with intent to distribute which has always been held to include the lesser offense of conspiracy to possess. The appellate court reasoned that conspirators can have different objectives during the commission of a crime, and a defendant has the right for the jury to hear the lesser-included offenses so long as said offense meets the Colon standard which is the following:

• A proper request is made
• The elements of the lesser offense are identical to part of the elements of the greater offense
• The evidence would support a conviction on the lesser offense
• The proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser offense. See United States v. Colon, 268 F.3d 367, 373 (6th Cir.2001).

LaPointe's Count I conviction was reversed and remanded back to the lower courts to issue an opinion consistent with the appellate court's ruling.

A Review of the Deferred Action / Deferred Prosecution Criteria for an Applicant's Criminal History

August 11, 2012, by The McKellar Law Firm, PLLC

As the Deferred Action ("DA") program is set to begin in a few days, more information has been released by U.S. Citizenship and Immigration Services concerning the requirements and procedures for the DA program. General information on the DA program can be found at my website. However, the purpose of this blog article is to look solely at the requirements related to an applicant's criminal history.

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One of the qualifications for an applicant to the DA program is that the applicant not have "been convicted of a felony, significant misdemeanor, three or more other misdemeanors" and "do not otherwise pose a threat to national security or public safety." In other words, if you have a conviction for a felony offense, "significant misdemeanor offense," or 3 or more other misdemeanor offenses, you will not be granted deferred action.

While a felony conviction is easy to understand, the term "significant misdemeanor offense" is a bit trickier to grasp. USCIS defines significant misdemeanor offense as a misdemeanor that satisfies the following criteria:

1. Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; or,

2. If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody, and therefore does not include a suspended sentence.

Since there now exists a concept of significant misdemeanor offenses, we must also understand what constitutes a "non-significant misdemeanor," which USCIS defines as a misdemeanor which:

1. Is not an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence; and

2. Is one for which the individual was sentenced to time in custody of 90 days or less.

USCIS also notes that minor traffic offenses (e.g., driving without a license) will not be considered a misdemeanor for purposes of the DA program, but an applicant's "entire offense history can be considered along with other facts to determine whether, under the totality of the circumstances, [an applicant] warrants an exercise of prosecutorial discretion."

While there are still many questions concerning how an applicant's criminal history may impact his/her ability to take advantage of the Deferred Action program, this new guidance makes it even clearer that those with criminal convictions should consult with an immigration attorney prior to submitting an application to the DA program.