Fernandez v. Mukasey’s Empirical Analysis
544 F.3d 862 · 2008
Citation profile
5 federal appellate ·
Relationships
Applies 18 U.S.C. § 3559 · 18 U.S.C. § 924 · 21 U.S.C. § 801 (§ 101 of the Controlled Substances Act) · 21 U.S.C. § 844 (§ 404 of the Controlled Substances Act) · 21 U.S.C. § 851 (§ 411 of the Controlled Substances Act) · 8 U.S.C. § 1101 (§ 101 of the Immigration and Nationality Act of 1952 (McCarran-Walter)) · 8 U.S.C. § 1227 (§ 237 of the Immigration and Nationality Act of 1952 (McCarran-Walter)) · 8 U.S.C. § 1229B (§ 240a of the Immigration and Nationality Act of 1952 (McCarran-Walter))
Relies on Apprendi v. New Jersey · Almendarez-Torres v. United States · Taylor v. United States · Shepard v. United States · Leocal v. Ashcroft
Most-quoted passages
The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 12 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.
“The first and only hypothetical that should be considered under the “hypothetical federal felony approach” is whether the crime that an individual was actually convicted of would be a felony under federal law. But by looking to facts not at issue in the crime of conviction in order to determine whether an individual could have been charged with a federal felony, our sister circuits, the IJ, and the BIA have considered an impermissible second hypothetical! We conclude that inclusion of the word “hypothetical” in the “hypothetical federal felony” approach does not provide the government with free reign to make ex-post determinations of what federal crimes an individual could hypothetically have been charged with where, as here, a prior drug-possession conviction was not at issue in the prosecution of the subsequent drug-possession offense.”
1 later decision quote this exact passage · from the concurrencee.g. Alsol v. Mukasey
How this case has been treated — in progress
Whether each later court followed, distinguished, criticized, or overruled this decision. The treatment classification (task #35) runs highest-cited cases first and lights up here as it reaches this one.