Fair Sentencing Act Alters Immigration Treatment of Crack Convictions

Section 3 of the Fair Sentencing Act amended 21 USC 844(a) by deleting the language that made a conviction for simple possession of more than five grams of crack cocaine a felony.  Under 21 USC 844(a), as amended by the Fair Sentencing Act, possession of any quantity of crack cocaine is now a misdemeanor.  This means that a conviction for possession of crack cocaine can no longer be a conviction for an aggravated felony. Arguably, a conviction for more than five grams of cocaine can no longer be an aggravated felony regardless of the date of conviction because such a conviction no longer fits the definition in 8 USC 1101(a)(43).   

On August, 3, 2010, President Obama signed into law the Fair Sentencing Act, Pub. L. 111-220, which reduces the discriminatory treatment of crack and powder cocaine under federal sentencing laws.  Before the Fair Sentencing Act became law, 21 USC 844(a) provided that a conviction for possession of more than five grams of crack cocaine was a felony.  As a felony under the Controlled Substances Act, a conviction for more than five grams of crack cocaine met the definition of aggravated felony under 8 USC § 1101(a)(43).  See Lopez v. Gonzales, 549 U.S. 47, 59 (2006).