The second prong of the aggravated felony drug trafficking definition depends upon whether the offense violates certain listed federal statutes, or would violate those statutes if the offense was prosecuted in federal court.  See § 5.38, supra.  This is not required under the first prong, which only requires that the conviction involve drug “trafficking.”  This discussion therefore applies only to the second part of the aggravated felony drug trafficking definition.

 

The second prong of the aggravated felony drug trafficking definition includes “a drug trafficking crime (as defined in section 924(c) of title 18, United States Code) . . . .”[341]  Section 924(c) in turn provides: “For purposes of this subsection, the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.,) or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).”[342]

 

This requires that the elements of a state drug offense must be exactly analogous to a federal drug offense named in the statute,[343] under the test provided in Matter of Barrett,[344] so that a conviction under the elements of the state offense would always fall entirely within the boundaries of a federal drug offense under one of the three federal controlled substances statutes.[345]  Since federal law includes a fairly small number of drug offenses, a surprising number of state drug offenses do not meet this test.

 

For example, federal law does not prohibit:

 

·        Being in a place where drugs are being used.

·        Being under the influence.

·        Bunk (i.e., sale of a substance pretending it is a controlled substance).

·        Driving under the influence of drugs.

·        Firearms offenses related to commission of a drug offense.

·        Offering to sell drugs.

·        Transportation of drugs.

·        Possession of drug paraphernalia.

·        Unauthorized Disposal of Hazardous Waste

·        Various prescription offenses.

 

Federal law does prohibit simple possession, possession with intent to distribute, sales, importation, manufacturing, use of a firearm in the commission of a drug offense, maintaining a place for sale of drugs, and a few other offenses.  Check Appendix E, infra, to see if the state offense is actually forbidden under federal law, or if the state elements are different.  If the elements of the state offense do not include all elements of a federal drug offense, the state offense is not an aggravated felony under the second prong test.[346]

[341] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[342] 18 U.S.C. § 924(c).

[343] A state conviction triggers deportation if the conduct falls entirely within a federal ground of deportation, even though the state statute omits the federal jurisdictional element.  Matter of Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA Jan. 15, 2002).  See § 4.35, supra.

[344] Matter of Barrett, 20 I. & N. Dec. 171 (BIA 1990) (state offense must “include all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws”).

[345] Ibid.  Legislative history shows that Matter of Barrett was codified at INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), the drug trafficking aggravated felony definition.  Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992); Matter of LG, 21 I. & N. Dec. 89 (BIA 1995).

[346] If the state offense additionally does not meet the common definition of trafficking, it does not meet the test under the first prong, and is not a aggravated felony drug offense at all.

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " FEDERAL FOOD, DRUG, AND COSMETIC ACT VIOLATIONS
Borrome v. Attorney General of the United States, 687 F.3d 150 (3d Cir. Jul. 18, 2012) (federal conviction for unauthorized wholesale distribution in interstate commerce of prescription drugs, in violation of 21 U.S.C. 331(t), 353(e), is not a drug trafficking aggravated felony).

AGGRAVATED FELONY " FRAUD OFFENSE " WIRE FRAUD
Doe v. Attorney General, 659 F.3d 266 (3d Cir. Sept. 8, 2011) (federal conviction of aiding and abetting a wire fraud scheme, under 18 U.S.C. 2 and 1343, that cost its victims more than $120,000, constituted an aggravated felony fraud offense, under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i)).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY TEST " DISTINGUISHED FROM HYPOTHETICAL APPROACH CRITICIZED IN CARACHURI-ROSENDO
Catwell v. Attorney General, 623 F.3d 199, 209, n.11 (3d Cir. Oct. 13, 2010) (Our reference to a hypothetical federal felony in this case differs from the hypothetical approach recently criticized by the Supreme Court in Carachuri-Rosendo v. Holder, --- U.S. ----, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). As directed by the Supreme Court, we look to the proscribe[d] conduct of a state offense to determine whether it is punishable as a felony under federal law, considering both the conviction (the relevant statutory hook), and the conduct actually punished by the state offense. Id. at 2588 (quoting Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006)). While our precedent uses the term hypothetical federal felony, our analysis is not at all hypothetical. Rather, it follows the Supreme Court's direction in Carachuri-Rosendo for determining whether a state offense constitutes a fictional federal felony. For consistency with our precedent, we will continue to use the phrase hypothetical federal felony.).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " EXCEPTION FOR GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA " CATEGORICAL ANALYSIS
Catwell v. Attorney General, 623 F.3d 199, 207 (3d Cir. Oct. 13, 2010) (determination of whether gratuitous distribution of marijuana involved more than small amount was subject to strict categorical analysis).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " GRATUITOUS DISTRIBUTION OF MARIJUANA " DEFINITION OF SMALL AMOUNT " DISTINCTION BETWEEN PRISON AND NON-PRISON SITUATIONS
Catwell v. Attorney General, 623 F.3d 199, 207 (3d Cir. Oct. 13, 2010) (Very few cases have addressed the question of small amount for purposes of the exception set forth in 21 U.S.C. 841(b)(4). All of the cases we have found specifically discussing small quantities of marijuana involved drug possession in prison. The cases all distinguish between drug possession in or near a prison and drug possession on the street, noting that possessing drugs in prison has more severe consequences than possessing drugs on the street. The amounts involved ranged from 1.256 grams to 17.2 grams. None of these were determined to be a small amount for the purposes of section 841(b)(4).); citing United States v. Carmichael, 155 F.3d 561 (4th Cir.1998) (unpublished table decision) (1.256 grams of marijuana brought into prison is not a small amount since drugs in prison are measured in grams and milligrams not pounds and ounces); United States v. Wheeler, 121 F.3d 702 (4th Cir.1997) (unpublished table decision) (2.86 grams not a small amount); U.S. v. Damerville, 27 F.3d 254 (7th Cir.1994) (17.2 grams of marijuana distributed to inmates is not a small amount)).

AGGRAVATED FELONY " DRUG TRAFFICKING " HYPOTHETICAL FEDERAL FELONY " GRATUITOUS DISTRIBUTION OF MARIJUANA " DEFINITION OF SMALL AMOUNT
The Third Circuit discussed what constitutes a small amount of marijuana, for purposes of making a federal drug-trafficking conviction a misdemeanor: The legislative history of 841(b)(4) provides some guidance on the definition of small amount of marijuana since it, at least, mentions a specific amount at one point. In 1970, when the Senate was considering amending the CSA to include the small amount exception, Senator Ted Kennedy, a co-sponsor of the amendment, observed that [m]any youngsters may be in a situation where they are with friends, where they give a marihuana cigarette or a small quantity of marihuana to one or two others-not professional pushers, not to make a profit, but in a casual and informal way. 116 CONG. REC. 35,555 (1970). Several courts have noted, looking to the legislative history of the statute, that the exception contemplated social sharing situations. United States v. Eddy, 523 F.3d 1268, 1271 (10th Cir.2008) (section 841(b)(4) refers to social sharing of marijuana among friends); United States v. Outen, 286 F.3d 622, 637 (2d Cir.2002) (unspecified amount of marijuana, but court noted the exception applied to the sharing of small amounts of marijuana in social situations). These observations are supported by statements made by Senator Harold Hughes from Iowa, who observed that [t]rafficking provisions should apply to the large distributor, rather than to the person who is only using the drug with his friends. 116 CONG. REC. 35,555 (1970). The comments made during consideration of the amendment lead us to conclude that Congress contemplated and intended small amount to mean the amount of marijuana an individual would be likely to use on a single occasion, in a social setting. In light of Senator Kennedy's remarks, that amount would be no more than one or two marijuana cigarettes, or a few grams of marijuana. This conclusion is consistent with 8 U.S.C. 1227(a)(2)(B)(i), which provides an exception to the controlled substances offense as a basis for removal. The exception exempts someone who possesses 30 grams or less of marijuana from removal, describing this as an exception for personal use. 8 U.S.C. 1227(a)(2)(B)(i). Under the Sentencing Guidelines, one marijuana cigarette is equivalent to .5 grams. U.S.S.G. 2D1.1. Given that criterion, Petitioner possessed the equivalent of 241 marijuana cigarettes, well beyond the single cigarette envisioned by Senator Kennedy and the Congress. We conclude that 120.5 grams is not a small amount, as contemplated by Congress when it enacted the exception. Therefore, Petitioner's conviction did not involve a small amount of marijuana for no remuneration.FN18 The exception created by 841(b)(4) does not apply to him. As a result, Petitioner's conviction was for an aggravated felony, rendering him ineligible for cancellation of removal. Catwell v. Attorney General, 623 F.3d 199, 208-209, 2010 WL 3987664 (3d Cir. Oct. 13, 2010) (footnotes omitted).

Fourth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Maroquin-Bran, 587 F.3d 214 (4th Cir. Nov. 9, 2009) (California conviction for violation of Health & Safety Code 11360(a) is not necessary a "drug trafficking offense" for illegal re-entry sentencing purposes, since the statute of conviction is divisible and includes transportation for personal use); accord, United States v. Medina-Almaguer, 559 F.3d 420, 422-23 (6th Cir. 2009); United States v. Lopez-Salas, 513 F.3d 174, 177-78, 180 (5th Cir. 2008) (per curiam); United States v. Garcia-Medina, 497 F.3d 875, 877 (8th Cir. 2007); United States v. Almazan-Becerra, 482 F.3d 1085, 1089-90 (9th Cir. 2007); cf. United States v. Herrera-Roldan, 414 F.3d 1238, 1240 (10th Cir. 2005); United States v. Madera-Madera, 333 F.3d 1228, 1231-33 (11th Cir. 2003).

Fifth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " MANUFACTURING
United States v. Reyes-Mendoza, ___ F.3d ___ (5th Cir. Dec. 15, 2011) (California conviction of manufacturing a controlled substance, in violation of Health & Safety Code 11379.6, is not categorically a drug trafficking offense, under USSG 2L1.2 (which includes an offense under . . . state . . . law that prohibits the manufacture . . . of a controlled substance), because the word manufacture has been interpreted more broadly under California law than under the federal Sentencing Guidelines, and there are some acts that would violate Health & Safety Code 11379.6 without qualifying as drug trafficking offenses for purposes of USSG 2L1.2); see United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th Cir. 2006) (possession of a precursor chemical with intent to manufacture a controlled substance was not a drug trafficking offense for purposes of USSG 2L1.2, and was not substantially equivalent to attempted manufacture of a controlled substance.); United States v. Forester, 836 F.2d 856, 859-61 (5th Cir. 1988) (defendant could not be sentenced for both production of a precursor with intent to manufacture a controlled substance and the attempted manufacture of a controlled substance).

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
Moncrieffe v. Holder, ___ F.3d ___, ___, 2011 WL 5343694 (5th Cir. Nov. 8, 2011) (Georgia conviction of possession of marijuana with intent to distribute, in violation of Ga. Code 16"13"30(j), which includes specifically, distribution of a small amount of marijuana for no remuneration, was nonetheless a drug-trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); Moncrieffe bore the burden to prove that he was convicted of only misdemeanor conduct.); see United States v. Walker, 302 F.3d 322, 324 (5th Cir. 2002) (the default sentencing range for a marijuana distribution offense is the CSA's felony provision, 21 U.S.C. 841(b)(1)(D), rather than the misdemeanor provision); see Matter of Aruna, 24 I. & N. Dec. 452 (BIA Feb. 26, 2008) (a state conviction for possessing an indeterminate amount of marijuana with intent to distribute is considered an aggravated felony); Garcia v. Holder, 638 F.3d 511, 516 (6th Cir. 2011) (the default punishment under 21 U.S.C. 841 is a felony, where the statute punishes gratuitous distribution of a small amount as well as sales, so a conviction constitutes a drug-trafficking aggravated felony even absent record evidence of the quantity or price); United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (same); Julce v. Mukasey, 530 F.3d 30 (1st Cir. June 20, 2008) (same); Jeune v. Attorney General, 476 F.3d 199 (3d Cir.2007) (same); but see Martinez v. Mukasey, 551 F.3d 113, 118 (2d Cir.2008) (default is a misdemeanor: only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant to the categorical approach); Julce v. Mukasey, 530 F.3d 30, 34"36 (1st Cir. 2008) (same); Jeune v. Attorney General, 476 F.3d 199 (3d Cir. 2007) (same).

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (Texas conviction for delivery of controlled substance, in violation of Texas Health and Safety Code 481.112, was not a "drug trafficking offense" within meaning of USSG 16-level enhancement for illegal reentry after deportation, under USSG 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense; Tex. Health & Safety Code 481.002(8) defines "deliver" as "transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia," which is broader than the sentencing definition, which does not include solicitation).

Sixth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Medina-Almaguer, 559 F.3d 420 (6th Cir. Mar. 12, 2009) (California conviction of violation of Penal Code 11352(a) ["transport, import ..., sell, furnish, administer, or give away" a controlled substance or to "offer[ ]" to do those things], is divisible for purposes of imposing a 16-level sentence enhancement for illegal reentry because the prior deportation arose from a "drug trafficking offense," within the meaning of USSG 2L1.2(b)(1)(A), since the broad sweep of the California statute covers conduct that comes within the Guideline's definition of a "drug trafficking offense," as well as conduct that falls outside of it, i.e., "transport[ation]" of controlled substances and "offers" to perform the proscribed activities).

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SALE - CALIFORNIA SALE STATUTE IS OVERINCLUSIVE, INCLUDING BOTH OFFENSES THAT WOULD, AND OTHERS THAT WOULD NOT, TRIGGER THE GUIDELINES SENTENCE ENHANCEMENT
United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), is overinclusive and includes both drug trafficking offenses that properly trigger 16-level sentence enhancement for illegal reentry after deportation under USSG 2L1.2(b)(1)(A)(i) (Nov. 2005), and other offenses that do not).

Ninth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE
United States v. Gonzalez-Corn, ___ F.3d ___, 2015 WL 4385278 (9th Cir. Jul. 17, 2015) (federal conviction for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony drug trafficking offense, without need to apply the categorical analysis, since the INA specifically incorporates felony violations of the CSA on its face).

AGGRAVATED FELONY " DRUG TRAFFICKING " TRANSPORTATION CAL CRIM DEF -- CALIFORNIA SAFE HAVENS " TRANSPORTATION FOR SALE
Starting January 1, 2014, a conviction for transportation under Health & Safety Code 11352 and 11379 will automatically qualify as a drug trafficking aggravated felony if the record of conviction identifies a federally listed controlled substance. AB 721, signed into law on Oct. 3, 2013, redefines transport to include only transportation for sale and now excludes transportation for personal use. While this is a positive development for most defendants, for noncitizen defendants who are facing serious drug charges, including possession for sale, this eliminates a key strategy to avoid an aggravated felony triggering mandatory deportation and detention, even for long-time lawful permanent residents. The ILRC has written a practice advisory for criminal defenders available at http://www.ilrc.org/resources/transportation-advisory. The practice advisory includes alternative strategies to avoid an aggravated felony conviction.

AGGRAVATED FELONY - DRUG TRAFFICKING OFFENSES - MAINTAINING A PLACE TO STORE DRUGS FOR SALE
Salviejo-Fernandez v. Gonzales, ___ F.3d ___ (9th Cir. Jul. 31, 2006) (California conviction of maintaining a place to store drugs for sale, in violation of Health & Safety Code 11366, constitutes a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes).

Note: The majority holds that a violation of California Heath & Safety Code 11366 is a categorical match for 21 U.S.C. 856 (i.e., has the exact same elements and covers the same range of offenses), and is thus categorically an aggravated felony drug offense. The dissent points out that, while a conviction under California Health & Safety Code 11366.5 is a categorical match, a conviction under the statute at issue is broader than the federal definition because Health & Safety Code 11366 (unlike the federal offense) does not require that the owner knew that the place would be used for the purpose of drug sales (i.e. the offense can be committed negligently).

Other

CONTROLLED SUBSTANCES " COUNTERFEIT DRUG OFFENSES IN LIEU OF CONTROLLED SUBSTANCES
Practice Advisory, Su Yon Yi and Katherine Brady, Immigrant Legal Resource Center, Burn Statutes and Counterfeit Drug Offenses (2015), see ILRC.org (discussing Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) (the offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former INA 241(a)(2)(B)(i), 8 U.S.C. 125l(a)(2)(B)(i) (1994))