Thursday, January 13, 2011

Fourth Circuit Ruling on Virginia's 1st Offender Deferred Adjudication (§18.2-251)

Recently, the Fourth Circuit issued an opinion in which the court held that a disposition for possession of marijuana under Virginia Code §18.2-251, a first offender deferred adjudication statute, did not constitute a “conviction” under INA §101(a)(48) where the Defendant did not plead guilty.

The government argued that the judicial finding of facts sufficient to justify a finding of guilt made by the judge under § 18.2-251 was the functional equivalent of a judge finding the alien “guilty” as required under § 1101(a)(48)(A)(i).  The court decided, however, that the plain language of the statute required an actual finding of guilt, not just a finding of facts sufficient to justify a finding of guilt.

This decision may be useful for planning purposes where a defendant must avoid a conviction but is eligible as a first offender.

Read the opinion here.

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