Crimmigration: When A "Controlled Substance" Isn't A "Controlled Substance", Part 2

Yesterday, I introduced you to an 11th Circuit case (Said) that confronted the issue of whether a state-defined "controlled substance" met the federal definition of a "controlled substance" such that a noncitizen with a drug-related conviction would be removable. Today I bring you an 8th Circuit variation on the same topic: US v. Owen 51 F.4th 292 (8th Cir. 2022).

I learned about this case via a wonderful CLE put together by James H. Binger Center for New Americans at the University of Minnesota Law School. The program, Challenging "Controlled Substance" Offenses Under the INA in the 8th Circuit, should be available online soon.

In the meantime, let's talk Owen. Owen isn't an immigration case; it's an Armed Career Criminal Act (ACCA) case. Nonetheless, the key issue in Owen was whether the defendant's state drug convictions met the federal ACCA standard. Employing a categorical analysis, the Eighth Circuit concluded that the state statute "sweeps more broadly" than the federal due to the state definition of cocaine. Thus, the underlying convictions did not count as "serious drug offenses" under the ACCA.

To understand the mismatch between state and federal law, we head into the realm of organic chemistry. Haha. I'm not going to be doing that. Instead, I'm going to quote from the Owen decision directly:

Minnesota's all-inclusive definition covers “coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine, the salts and isomers of cocaine and ecgonine, and the salts of their isomers and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of those substances.” Minn. Stat. § 152.01, subd. 3a (emphasis added). By specifically mentioning “the ... isomers of cocaine,” the definition sweeps in any substance with “the same chemical composition” as cocaine, even if it has a different “structural form.” Dictionary of Science and Technology 1151 (1992) (explaining chemical isomerism); see also United States v. Phifer, 909 F.3d 372, 376 (11th Cir. 2018) (defining isomers as “molecules that share the same chemical formula but have their atoms connected differently, or arranged differently in space” (brackets omitted)).

Cocaine has multiple isomers. See 1 Gerald F. Uelmen & Alex Kreit, Drug Abuse and the Law Sourcebook § 5:23 (2022). The problem for the government is that federal law criminalizes just two: optical and geometric isomers. 21 U.S.C. §§ 802(14), 812, sched. II(a)(4); 21 C.F.R. § 1308.02. Minnesota's *296 statute, by contrast, bans them all.

Interesting, both Said and Owen spend time discussing the "realistic probability" argument. As in, does the defendant have to prove a "realistic probability" that possession of these other isomers is needed in order to find a categorical mismatch. The Eighth and Eleventh Circuits both said no, saying that the realistic probability test is only for resolving ambiguities. When the statute itself is unambiguous: "The 'realistic probability,' ... is 'evident from the language of the statute itself.'

I'm going to be real with you. I attended this CLE. I listened to John Bruning (Supervising Litigation Attorney, The Advocates for Human Rights) explain isomers. Pictures were involved. I still felt like a kid in a Charlie Brown comic where John (the adult) was just a muted trombone playing. But, I did get this, which I will absolutely be incorporating into my teaching: Not every state drug conviction will trigger immigration consequences. Look to see if the definitions of the applicable controlled substance match. And get scientific help to make that determination as needed.

-KitJ