In Texas, first offense drug possession charges for a small amount of marijuana or illegal prescription drugs is a misdemeanor. Even a second offense of less than two ounces of marijuana remains a misdemeanor under Texas state law. However, under the federal Controlled Substances Act, a second possession offense for someone with a prior possession conviction is a federal felony.
This federal legal perspective further complicates matters when the offender is a lawful permanent resident because aggravated felonies result in deportation. Although no federal possession conviction occurred, once the case comes before an immigration court under the Immigration and Nationality Act, it may order deportation.
In the case Carchuri-Rosendo v. Holder, Texas convicted Jose Angel Carachuri-Rosendo for marijuana possession in 2004 and convicted him again for Xanax possession in 2005. However, the state did not try him for recidivism (repeated criminal offense).
When he received a deportation notice in 2006 for controlled substance use, he petitioned for cancellation of removal proceedings. An immigration judge determined his second drug offense was an aggravated felony and denied the petition. He appealed to the Board of Immigration Appeals (BIA), lost the appeal, and appealed to the Fifth Circuit Court of Appeals, where he also lost. The Fifth and Seventh Circuits have held that a second state misdemeanor is an aggravated felony, but the First, Second, Third, and Sixth Circuits have considered second state misdemeanors as aggravated felonies only if convicted of recidivism possession under state law. The case went before the Supreme Court and awaits the final decision.
Drug possession charges can be complicated, and before pleading even to misdemeanor charges, always consult an experienced Texas drug possession attorney.