Aggravated Felonies
§ 5.41 (B)
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(B) Gratuitous Distribution of Small Amount of Marijuana. If the immigration authorities in the jurisdiction in which the case arises will recognize the conviction as a misdemeanor, distribution of a small amount of marijuana, without remuneration, will not be considered an aggravated felony because it is not a felony.[290] In addition, those jurisdictions following the hypothetical federal felony test will not consider this conviction to be an aggravated felony since it would be a misdemeanor if prosecuted under federal law.
Although distribution of a controlled substance is generally punishable as a felony under federal law,[291] distribution of a small amount of marijuana, THC[292] or hashish[293] is not a considered a federal felony:
Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated [as a person convicted of simple possession of marijuana] as provided in 844 [punishing simple possession of marijuana as a misdemeanor] and section 3607 of Title 18 [the Federal First Offender Act].[294]
This means that anyone convicted of “knowingly or intentionally -- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance”[295] by free distribution of a small amount of marijuana must (“shall”) be treated as if convicted of simple possession of a controlled substance under 21 U.S.C. § 844(a), which means it is a federal misdemeanor.
Unless the DHS can prove that the amount distributed was not “small,” [296] the offense should fall within 21 U.S.C. § 841(b)(4), making the distribution treatable as though it were a federal misdemeanor conviction of simple possession. Congress does not define “small amount” for purposes of 21 U.S.C. § 841(b)(4). Rather, the term “small amount” is taken to be relative to the circumstances of the case.[297] Where there is nothing in the record of conviction that indicates how much marijuana was involved in the offense, the government cannot prove the quantity was not “small” and thus cannot prove the offense would not have been a misdemeanor if prosecuted in federal court.
The DHS also bears the burden in applying a divisible statute analysis. See § § 4.8-4.13, supra. In Wilson v. Ashcroft,[298] the Third Circuit found that the New Jersey statute punishing possession of at least one ounce[299] (and less than five pounds) of marijuana with intent to manufacture, distribute, or dispense[300] was generally analogous to the offense defined in 21 U.S.C. § 841(a)(1), a federal felony. However, because the state statute under which the defendant pleaded guilty did not have remuneration as an element, the court held that the INS could not demonstrate from the record of conviction that Wilson’s conviction was not for distribution of a small amount of marijuana without remuneration.
At least within those circuits that follow the “minority” rule,[301] even if a state distribution conviction is a felony under the law of the convicting state, the conviction should be treated as if it were a misdemeanor under federal law, and will not be considered an aggravated felony offense under either part of the definition.
Distribution of a small amount of marijuana is also, under 21 U.S.C. § 841(b)(4), subject to Federal First Offender Act[302] treatment. Therefore, if the conviction arose in federal court in any circuit, or in a state court located within the Ninth Circuit, the conviction may be effectively expunged for immigration purposes, just as if the conviction were for simple possession. See § § 6.11-6.14, infra.
[290] United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § 32C(a) and M.G.L. 274 § 1, did not constitute “felony,” and was therefore not an “aggravated felony,” under 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant’s offense would have been classified as a felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).
[291] 21 U.S.C. § 841(a)(1).
[292] Cf. Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1m)(h)(1), held an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); argument that THC falls within definition of marijuana and therefore gratuitous distribution of small amount of marijuana does not constitute a felony under federal law not addressed).
[293] 21 U.S.C. § 802(16) (defining marijuana to include all parts of the Cannabis plant, including hashish). See also N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 9.5(B) (2005).
[294] 21 U.S.C. § 841(b)(4).
[295] 21 U.S.C. § 844(a).
[296] Cf. United States v. Lowe, 143 F.Supp.2d 613, 616-619 (S.D. W. Va. 2000) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to hold that to sentence a defendant convicted of distribution of marijuana of a federal felony, the Government must show beyond a reasonable doubt that the amount involved was not “small”).
[297] See United States v. Damerville, 27 F.3d 254, 258-259 (3d Cir. 2001) (17.2 grams not a “small amount” when distributed in a prison setting).
[298] Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003).
[299] One ounce is 28.5 grams.
[300] N.J. Stat. Ann. § 2C:35-5b(11).
[301] See § 5.40, supra.
[302] 18 U.S.C. § 3607.