California Health & Safety Code 11379(a) prohibits a number of different offenses, including transportation of a controlled substance. This offense does not have as an element any requirement that the transportation be for purposes of sale, and therefore encompasses transportation for personal use. Transportation for personal use is included within the definition of "nonviolent drug possession offense," for which charge a defendant is eligible for Prop. 36 no drug treatment and for which imposition of any custodial sentence is initially prohibited. California Penal Code 1210(a). Therefore, a conviction of transportation of a controlled substance under Health & Safety Code 11379(a) that does not specify whether it is for personal use cannot be considered a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for deportation purposes, because the government bears the burden of proving deportability, and cannot do so because it cannot show that the Health & Safety Code 11379(a) conviction disqualifies the defendant from no-jail treatment under Penal Code 1210.1, and therefore cannot establish that the conviction is a felony under the federal definition that requires that the conviction be punishable by a sentence in excess of one year in custody. Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. November 3, 2006) (California conviction of sale or offer to transport a controlled substance, in violation of Health & Safety Code 11379(a), does not constitute a felony, and therefore cannot constitute an aggravated felony drug trafficking conviction, if state law prevents imposition of sentence greater than one year in custody: "We also note that California recently enacted a new drug statute requiring mandatory probation for first offenses for nonviolent drug offenders. California Penal Code 1210.1. Under this new probation statute, it is unclear whether 11379(a) can be characterized as an aggravated felony in view of the fact that a first offense under this statute may no longer carry the possibility of a punishment of more than one year.").