It's funny how things turn out sometimes.
Last year, the Supreme Court decided a case involving whether someone could be deported for sharing a small amount of marijuana with friends. The Court held that this wasn't a removable offense, and in so holding, modified somewhat (or applied in a particular setting) the "categorical approach" to determining whether a particular offense was an aggravated felony.
The United States wasn't psyched about this rule, since it made deporting people a bit more difficult. One of the arguments the Solicitor General made in that case was the claim that applying a rule like the one advanced by defendant might not only let off small-time drug users, but "bigger" criminals as well. For example, the U.S. argued, this rule might make it more difficult to deport people who had been convicted of illegal possession of firearms. Because the U.S. definition of the relevant felony was slightly different than various state defintions of similar crimes.
The Supreme Court, however, was not persuaded. Here's what it said in its opinion about this argument (and its basis for rejecting it):
"Finally, the Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like §1101(a)(43)(C), which refers to a federal firearms statute that contains an exception for 'antique firearm[s],' 18 U. S. C. §921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But Duenas-Alvarez requires that there be 'a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outsidethe generic definition of a crime.' 549 U. S., at 193. To defeat the categorical comparison in this manner, a non-citizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms."
And, the Supreme Court thought, that's just silly. So the United States' hypothetical problem is merely an illusion.
Which brings us to this morning's case.
That case involves, yep, someone convicted of illegal possession of firearms. Who gets deported under the "old" rule. But he says that California's statute doesn't match the federal statute, which means that he can't be deported.
But, remember, the Supreme Court said that in order to win this argument, he'd have to show that California was actually silly enough to prosecute people for having antique firearms. No way that's going to in fact happen, right?
Wrong.
Aguilera-Ross makes precisely such a showing. Citing numerous cases over the past several years in which the Court of Appeal affirmed convictions for, among other things, "possession of [a] replica muzzle-loading pistol," possession of a "family heirloom replica single-shot muzzle-loading rifle incapable of using modern ammunition," and an "old-style cap and ball pistol that was rusted and would fire only one shot at a time and had to be reloaded each time to fire." Oops. So the thing that the Supreme Court implicitly thought would never actually happen does indeed happen in our great state. Which means, in turn, that Aguilera-Ross prevails. Pursuant to the express word of the United States Supreme Court itself. Notwithstanding the fact that those words were half made in rhetorical jest. Proof positive that law, like reality, is sometimes even stranger than fiction.
