(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.

BIA

AGGRAVATED FELONY"CONTROLLED SUBSTANCES"DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA WITHOUT REMUNERATION
Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (noncitizen bears burden to establish state conviction of intent to distribute involved a "small amount of marihuana for no remuneration within the meaning of 21 U.S.C. 841(b)(4), which the noncitizen may establish by presenting evidence outside of the record of conviction), Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun. 20, 2008) (Massachusetts conviction of possession with intent to distribute a Class D substance (marijuana), in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of the aggravated felony disqualification from eligibility for cancellation of removal for LPRs, rejecting the argument that the offense would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun.20, 2008) (burden is on the noncitizen/defendant to show that a state conviction for distribution of marijuana would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law; court leaves open the question of whether the noncitizen must meet burden only through criminal documents or can introduce additional evidence before the IJ), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003)

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted an aggravated felony drug trafficking conviction under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

Second Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING- GRATUITOUS DISTRIBUTION OF A SMALL AMOUNT OF MARIHUANA
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " DISTRIBUTION OF MARIJUANA
Catwell v. Attorney General, 623 F.3d 199 (3d Cir. Oct. 13, 2010) (Pennsylvania conviction of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), involved 120.5 grams, which was more than a small amount, so the BIA correctly concluded that the conviction constituted a drug trafficking aggravated felony, disqualifying petitioner from eligibility for cancellation of removal).

AGGRAVATED FELONY - DRUG TRAFFICKING - DRUG POSSESSION AND LESSER OFFENSES - DISTRIBUTION OF A SMALL AMOUNT OF MARIJUANA
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

NOTE: the BIA, in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), disagreed, finding that the "gratuitous distribution of a small amount of marijuana" statute was an affirmative defense, which the defendant must prove. Counsel can argue that, in the case of a state conviction, there is no such statutory exception and defense counsel in state court would have had no reason to submit proof that only a small amount was involved. Therefore, to require that this extra showing have been made before the state court is unreasonable. Thanks to Jonathan Moore.

AGGRAVATED FELONY - DRUG TRAFFICKING - DISTRIBUTION
Jeune v. Attorney Gen. of the U.S., 476 F.3d 199 (3d Cir. Feb. 20, 2007) (Pennsylvania conviction for violation of 35 Pa. Cons. Stat. Ann. 780-113(a)(30), manufacture, delivery, or possession with intent to manufacture or deliver, of a controlled substance, is not categorically an "aggravated felony" drug trafficking crime because the offense may be committed for personal use, and is not necessarily an offense punishable as a felony under federal law, since the offense may be violated by distribution of a small amount of marijuana without remuneration, which is treated a misdemeanor under 21 U.S.C. 841(a)(1)), following Garcia v. Attorney General of the United States, 462 F.3d 287 (3d Cir.2006) (conviction of violating 35 Pa. Cons.Stat.Ann. 780-113(a)(30) is not categorically an aggravated felony, since not every violation of the manufacturing provision involves trading or dealing, as there may be circumstances in which a defendant simply manufactured drugs for his own personal use).

Fifth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING " CERT GRANTED
Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. Nov. 8, 2011), cert. granted, No. 11-702 (Apr. 2, 2012). Note: The Supreme Court will decide whether a state conviction under a state statute that includes distribution of a small amount of marijuana without remuneration is a drug trafficking aggravated felony, even where the record of conviction does not establish that the noncitizen was convicted of an offense that would constitute a federal felony.

AGGRAVATED FELONY - DRUG TRAFFICKING - SECOND POSSESSION
United States v. Cepeda-Rios, 530 F.3d 333 (5th Cir. Jun. 4, 2008) (California conviction of sale of tar heroin, in violation of Health & Safety Code 11352, constituted a drug trafficking aggravated felony for illegal re-entry sentencing purposes; although misdemeanor possessory offense is not an aggravated felony by itself, because the conviction was a misdemeanor, defendants prior drug conviction made the conviction a felony under the hypothetical federal prosecution analysis; court did not address argument that prior must be proven in subsequent conviction), following United States v. Sanchez-Villalobos, 412 F.3d 572, 577 (5th Cir. 2005) (second state conviction of possession of a controlled substance constituted an aggravated felony, triggering an eight-level enhancement of an illegal reentry sentence, because it "could have been punished under [21 U.S.C.] 844(a) as a felony with a penalty of up to two years imprisonment).

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO DELIVER
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (Michigan conviction attempted possession of marijuana with the intent to deliver [actual, constructive, or attempted transfer from 1 person to another] less than five kilograms, in violation of Mich. Comp. Laws 333.7401(2)(d)(iii), constituted a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though no commercial element was required to constitute the offense, because the federal Controlled Substances Act similarly prohibits a person from possess[ing] with intent to ... distribute ... a controlled substance, 21 U.S.C. 841(a)(1), as a felony, rejecting the argument that government must negate the misdemeanor exception under which gratuitous distribution of a small amount of marijuana constitutes only a misdemeanor under 21 U.S.C. 841(b)(4) since the small amount exception is not an element of the offense); see United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (the amount of marijuana involved need not be proven to the jury in order to convict under 841(a) or punish under 841(b)(1)(D)); United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that 841(b)(1)(D) is the default provision for possessing an undetermined amount of marijuana with the intent to distribute the drug); following Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); contra, Martinez v. Mukasey, 551 F.3d 113, 120 (2d Cir. 2008) ([W]e look no further than to the fact that Martinez's conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. 841(b)(4).); Jeune v. Attorney Gen., 476 F.3d 199, 205 (3d Cir. 2007) (the least culpable conduct involved a small amount of marijuana and no remunerative exchange, Jeune's state offense was deemed punishable under the misdemeanor provision of 21 U.S.C. 841(b)(4) and therefore not an aggravated felony).

AGGRAVATED FELONY - CONTROLLED SUBSTANCES - SECOND FELONY
Rashid v. Mukasey, 531 F.3d 438 (6th Cir. Jun. 26, 2008) (Michigan conviction of possession of a controlled substance, where the defendant has a prior conviction for the same offense, is not an aggravated felon under INA 101(a)(43)(B) for immigration purposes; "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. See Steele, 236 F.3d at 138 (explaining that the aggravated felony disability under the [INA] applies only if there has been a conviction of a felony). 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.").

Other

ARGUMENT " AGGRAVATED FELONY " GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Counsel can argue that the Board of Immigration Appeals holding in Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008), that where a noncitizen was convicted under state law of distribution of marijuana, the offense would be considered an aggravated felony unless the respondent could prove to the Immigration Court that the offense did fall within 21 U.S.C. 841(b)(4) (gratuitous distribution of small amount of marijuana constituted no more than a misdemeanor under federal controlled substances acts), is in error, since the reasoning of Matter of Aruna has been overruled by the United States Supreme Court in Carachuri-Rosendo v. Holder, __ U.S. __, 130 S.Ct. 2577 (2010), which rejected the hypothetical federal felony reasoning on which Matter of Aruna was based.

AGGRAVATED FELONY - DRUG TRAFFICKING - SIMPLE POSSESSION WITH SOLICITATION PRIOR
A second conviction of possession of a federally listed controlled substance, preceded by a prior conviction of solicitation to commit a controlled substances offense, can potentially constitute an aggravated felony drug trafficking offense. This is because the solicitation prior can constitute a prior, in federal court, to elevate the second possession conviction to an aggravated felony. A solicitation conviction is not interpreted under the criminal recidivist provisions as it is under the federal immigration laws, because different language is used. The same is true of the Federal First Offender Act, 18 U.S.C. 3607. A prior drug conviction will disqualify a defendant from FFOA treatment, if it is a crime under state law, even if it does not involve a federally listed offense and even if it is a solicitation conviction.