Aggravated Felonies

(D)  Transportation of a Controlled Substance.  Transportation of a controlled substance is not specifically forbidden under federal law (other than importation across a border).[356]  It should therefore not be considered an aggravated felony so long as the elements do not fall within the common sense definition of commercial drug trafficking.[357]  In many states, transportation can be committed even if the drugs are possessed for personal use.  A recent California criminal case penalized transportation of methamphetamines where the defendant simply walked across a parking lot carrying the drugs.[358]  Even if the state transportation conviction is a felony, it does not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, and (b) the offense does not fall within the alternate definition because the offense is not a violation of a federal controlled substances act. 

In California, moreover, a single statute criminalizes sale, offer to sell, transportation for personal use, or gratuitous distribution.[359]  In United States v. Rivera-Sanchez,[360] the Ninth Circuit held that these statutes are divisible[361] because they include several distinct offenses, each with different elements.[362]  One of these is transportation, since it may be violated by transportation for personal use only and there is no federal offense of transportation.[363]

[356] See Appendix E, infra, for a checklist of federal controlled substances offenses.

[357] Saleres v. INS, 2001 WL 1526405 (9th Cir. Nov. 30, 2001) (unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).

[358] People v. Ormiston, 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567 (First Dist., Div. One, Jan. 22, 2003).

[359] California Health & Safety Code § 11360(a).  The other California sale statutes, such as Health & Safety Code § § 11352 (sale, distribution or transportation of narcotics such as heroin and cocaine) and 11377(a) (sale of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a), except that the specific controlled substances are different.

[360] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[361] See § § 4.8-4.13, supra.

[362] See also United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. May 19, 2005) (California conviction for “[t]ransport/sell methamphetamine” under Cal. Health & Safety Code § 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2003), for illegal re-entry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

[363] See Rivera-Sanchez, supra.