BIA

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.

AGGRAVATED FELONY - DRUG TRAFFICKING - SMALL QUANTITY
Matter of Aruna, 24 I.& N. Dec. 452 (BIA 2008) (Maryland misdemeanor conviction for violation of Maryland Criminal Law 5-602, distribution of a controlled substance, is an drug trafficking aggravated felony because the offense would be a felony if prosecuted under federal law; 21 U.S.C. 841(b)(4), which treats distribution of a small amount of marijuana without remuneration as a misdemeanor is not a separate federal offense, but rather a "mitigating exception" to the federal felony offense; therefore the categorical analysis is inapplicable to that section).

NOTE: A good example of outcome-based legal reasoning (and the BIA trying to have its cake and eat it too), this case may actually have some positive effect in fighting against Matter of Babaisakov, and other BIA attempts to avoid the categorical analysis. The BIA in this case pushes the "elements" vs. "facts" distinction very hard, providing language counsel can use in other cases.

ACCESSORY AFTER THE FACT - DRUG TRAFFICKING
Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime does not establish deportability as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because accessory after the fact is not listed as an inchoate offense (like attempt and conspiracy) that Congress chose to consider an aggravated felony under INA § 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)).

SALE - DRUG TRAFFICKING
Matter of Ponce De Leon-Ruiz, 21 I. & N. Dec. 154 (BIA Jan. 3, 1996) (en banc) (Minnesota conviction of sale of marijuana, in violation of Minnesota Statutes § 152.025(1), constitutes an aggravated felony as a drug-trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), despite argument that law allowed reduction to misdemeanor on successful completion of probation).

USE OF FIREARM DURING DRUG TRAFFICKING CRIME - DRUG TRAFFICKING
Matter of KL, 20 I. & N. Dec. 654 (BIA June 3, 1993) (federal conviction under 18 U.S.C. § 924(c)(1), for use of a firearm during a drug trafficking crime, is deportable under former 8 U.S.C. § 1251(a)(2)(A)(iii), as a drug-trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)) (alternative holding).

CONSPIRACY TO DISTRIBUTE - DRUG TRAFFICKING
Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of conspiracy to distribute a controlled substance, in violation of article 27, section 286(a)(1) of the Maryland Annotated Code, constitutes a "drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988), and is therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), triggering deportation, because the underlying state trafficking offense would have been a felony under federal law, even though the state conspiracy conviction was a misdemeanor), holding modified by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).

DISTRIBUTION - DRUG TRAFFICKING
Matter of De La Cruz, 20 I. & N. Dec. 346 (BIA July 16, 1991) (federal conviction for distribution of cocaine in violation of 21 U.S.C. § 812, 841(a)(1), (b)(1)(C), and (b)(2), constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), criticized by Matter of Ellis, 20 I. & N. Dec. 641 (BIA Mar. 8, 1993).

SALE - DRUG TRAFFICKING
Matter of Roberts, 20 I. & N. Dec. 294 (BIA May 1, 1991) (Missouri conviction for felony sale of a controlled substance is sufficient to support a determination that the respondent is a drug trafficker within the meaning of INA § 101(a)(43), 8 U.S.C. 1101(a)(43)).

POSSESSION FOR SALE - DRUG TRAFFICKING
Matter of Barrett, 20 I. & N. Dec. 171 (BIA Mar. 2, 1990) (Maryland convictions for "possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense" in violation of article 27, section 286 of the Annotated Code of Maryland held aggravated felony convictions if the state conviction includes all the elements necessary for a conviction under the analogous federal drug felony offense, here 21 U.S.C. § 841(a)(1)).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

First Circuit

DISTRIBUTION - DRUG TRAFFICKING
- 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).

POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Rodriguez, 26 F.3d 4 (1st Cir. June 17, 1994) (Massachusetts conviction for possession with intent to distribute illegal drug was a "trafficking" crime and therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for illegal re-entry sentence enhancement purposes under U.S.S.G. § 2L1.2(b)(2)).

Lower Courts of First Circuit

POSSESSION FOR SALE - DRUG TRAFFICKING
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 "aggravated felony," under INA § 101(a)(43)(B), 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 defendants offense would have been classified as felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).

DISTRIBUTION - DRUG TRAFFICKING
Fernandez-Santander v. Thornburgh, 751 F.Supp. 1007 (D.Me. Nov. 9, 1990) (Maine conviction for distribution of controlled substances, in violation of 17-A M.R.S.A. § 1103, qualified as a "drug trafficking crime" that in turn qualified as an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), that justified denial of immigration bond pending deportation, since offense would have been a felony if prosecuted under federal law), overruled, 930 F.2d 906 (1st Cir. Mar. 14, 1991) (Table).

Second Circuit

SALE OF HALLUCINOGEN/NARCOTIC - DRUG TRAFFICKING
Gousse v. Ashcroft, 339 F.3d 91 (2d Cir. Aug. 6, 2003) (Connecticut conviction under Conn. Gen. Stat. § 21a-277(a) constitutes conviction for "illicit trafficking in a controlled substance" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

SALE - DRUG TRAFFICKING
United States v. Paredes-Batista, 140 F.3d 367 (2d Cir. Mar. 18, 1998), cert. denied, 525 U.S. 859, 119 S.Ct. 143 (Oct. 5, 1998) (New York conviction under N.Y. Penal Law § 220.31, which provides that "[a] person is guilty of criminal sale of a controlled substance in the fifth degree when he knowingly and unlawfully sells a controlled substance," constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), triggering sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for illegal re-entry conviction).

SALE - DRUG TRAFFICKING
United States v. Polanco, 29 F.3d 35 (2d Cir. July 12, 1994) (New York conviction for sale of five grams of cocaine, a controlled substance, in violation of N.Y.Penal Law § 220.34, a Class C felony, constituted an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of illegal re-entry sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A)).

FACILITATION - DRUG TRAFFICKING
United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. Sept. 5, 1991) (federal: although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term "include" implies that the list of offenses in the application note is merely illustrative; court observed that the application note "may not be an exhaustive list" and proceeded to decide "whether . . . criminal facilitation should be included in that list" and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense).

Lower Courts of Second Circuit

MISDEMEANOR SALE OF MARIJUANA - DRUG TRAFFICKING
Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York misdemeanor conviction of Criminal Sale of Marijuana in the Fourth Degree, in violation of New York Penal Law § 221.40, constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), under the common-sense definition of illicit trafficking, since the defendant was convicted of acting as a businessman or merchant in connection with the trading, selling or dealing in controlled substances), ruling that the BIA decision in Matter of Elgendi, 23 I. & N. Dec. 515 (BIA Oct. 31, 2002) is not in accord with the law of the Second Circuit, as expressed in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002)).

SALE - DRUG TRAFFICKING
Manzueta v. Ashcroft, 206 F.Supp.2d 386 (W.D.N.Y. Mar. 29, 2002) (New York conviction for Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law § 220.39, constituted illicit trafficking in a controlled substance, an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

SALE - DRUG TRAFFICKING
United States v. Graham, 927 F.Supp. 619 (W.D.N.Y. June 18, 1996) (New York misdemeanor conviction for criminal sale of marijuana constituted aggravated felony under former INA § 101(a)(43)(C), 8 U.S.C. 1101(a)(43)(C) (now INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)), even though prior conviction was misdemeanor under New York state law).

ATTEMPTED - DRUG TRAFFICKING SALE
Leader v. Blackman, 744 F.Supp. 500 (S.D.N.Y. Aug. 8, 1990) (New York conviction for attempted criminal sale of controlled substances in the third degree, in violation of N.Y. Penal Law § 220.39, constitutes an "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), and triggers mandatory detention).

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).

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).

POSSESSION WITH INTENT TO DELIVER - DRUG TRAFFICKING
Garcia v. Attorney General, ___ F.3d ___, 2006 WL 2529471 (3d Cir. Sept. 5, 2006) (Pennsylvania conviction of two counts of manufacturing, delivering, or possessing a controlled substance with the intent to deliver, under 35 Pa. Stat. Ann. § 780-113(a)(30), constitutes an "aggravated felony" for immigration purposes; even though statute was phrased in disjunctive, record of conviction including complaint indicated defendant had sold, delivered, and possessed controlled substances with intent to deliver, which sufficiently established trafficking element to constitute drug trafficking aggravated felony under "illicit trafficking" route of INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)), distinguishing Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002); Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. 2003).

POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE - DRUG TRAFFICKING
Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003) (New Jersey conviction for possession of marijuana with intent to distribute could not be determined to be aggravated felony since court could not determine from state court judgment whether crime could be categorized as a felony under state law involving "drug trafficking").

POSSESSION FOR DISTRIBUTION NOT SALE - DRUG TRAFFICKING
Gerbier v. Holmes, 280 F.3d 297 (3d Cir. Feb. 8, 2002) (Delaware conviction of "trafficking in cocaine," in violation of Del.Code Ann. tit. 16, § 4753A(2)(a), that was based on possession of between 5 and 50 grams of cocaine, did not constitute an "aggravated felony " under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for immigration purposes, since offense did not contain a trading or dealing element and was not punishable as a felony under federal law).

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 - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), rejecting argument that because Texas law defines "delivery" as encapsulating "offering to sell," it is broader than the definition of "delivery" in the federal statute, which does not include offers to sell and because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under Health & Safety Code 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal), following United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) (Texas conviction for possession with intent to deliver a controlled substance, under Texas Health and Safety Code 481.112(a), constitutes a "controlled substance offense" for the purposes of a U.S.S.G. 2K2.1(a)(4)(A) sentence enhancement, because this offense is indistinguishable from "possession with intent to distribute," one of the offenses listed in the USSG definition of a "controlled substance offense").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSSESSION WITH INTENT TO DELIVER
United States v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. Sept. 26, 2008) (Illinois conviction of possession with intent to deliver, in violation of 720 ILCS 550/5, is a drug trafficking offense for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Fuentes-Oyervides, 541 F.3d 286 (5th Cir. Aug. 13, 2008) (Ohio conviction for violation of Ohio R.C. 2925.03(A)(2), making it unlawful to knowingly "prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knew or had reasonable cause to believe the controlled substance was intended for sale or resale by the offender or another" was a "drug trafficking" crime for illegal re-entry sentencing purposes).

AGGRAVATED FELONY - DRUG TRAFFICKING - TRANSPORTATION OF AT LEAST 100 POUNDS OF MARIJUANA
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", under General Statutes of North Carolina 90-95(h), constituted a "drug trafficking offense" under USSG 2L1.2(b)(1)(A)(i) for purposes of imposing a 16-level sentence enhanccment for illegal reentry after deportation).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 3173614 (5th Cir. Oct. 31, 2007) (Georgia conviction for possession and sale of a controlled substance, in violation of Ga. Code 16-13-31(e), is a drug trafficking offense for illegal re-entry sentencing purposes).

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).

AGGRAVATED FELONY - DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE
United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (Texas conviction for delivery of a controlled substance, in violation of V.T.C.A., Health & Safety Code 481.112, was not a drug-trafficking offense for illegal re-entry sentence enhancement purposes, since the definition of "deliver" includes solicitation, and solicitation is not included as a non-substantive offense that can trigger a sentence enhancement under the 2004 version of U.S.S.G. 2L1.2).

PURCHASE FOR SALE - DRUG TRAFFICKING
United States v. Palacios-Quinonez, 431 F.3d 471 (5th Cir. Nov. 29, 2005) (California conviction of "possession" of a controlled substance for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(i), includes constructive possession; purchase for sale of a controlled substance, in violation of California Penal Code § 11351 is an aggravated felony drug trafficking offense for sentencing purposes).

DRUG TRAFFICKING
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).

SOLICITATION TO TRANSPORT FOR SALE - DRUG TRAFFICKING
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Arizona conviction of felony solicitation to transport marijuana for sale, in violation of A.R.S. § 13-1002, subd. B, par. 2, 13-3405, subd. B, par. 11, is a controlled substance conviction for deportation purposes), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA May 28, 1992).

TRAVEL ACT CONVICTION - DRUG TRAFFICKING
United States v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. Mar. 25, 2003) (since courts consideration of whether a prior conviction constitutes a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) does not require a determination whether the offense "by its nature" fits a certain definition, contrary to the question whether a conviction constitutes a "crime of violence" under 18 U.S.C. § 16, the court will not employ a categorical analysis that ignores the facts of the case; a conviction of interstate transportation in aid of racketeering with the intent to promote cocaine and marijuana trafficking, as disclosed by the language of the charge, was therefore held to be a drug trafficking conviction for this purpose).

POSSESSION FOR DISTRIBUTION - DRUG TRAFFICKING
United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. June 7, 1996), cert. denied, 520 U.S. 1105, 117 S.Ct. 1109 (1997) (Texas conviction of possession of marijuana with intent to distribute constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for deportation purposes).

POSSESS HEROIN WITH INTENT TO DISTRIBUTE - CONSPIRACY
Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was "drug trafficking crime," and was thus an aggravated felony under INA § 101(a)(43)(B), (U), 8 U.S.C. 1101(a)(43)(B), (U), which rendered noncitizen statutorily ineligible to apply for asylum).

CONSPIRACY TO POSSESS FOR SALE - DRUG TRAFFICKING
Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was "drug trafficking crime," and was thus an "aggravated felony " under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

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).

IMPORTATION OF COCAINE - DRUG TRAFFICKING
United States v. Murillo-Iniguez, 318 F.3d 709 (6th Cir. Feb. 5, 2003) (federal conviction of importation of cocaine, in violation of 21 U.S.C. § 952(a)(1), constituted an aggravated felony for purposes of imposing a sentence enhancement for illegal re-entry).

POSSESSION FOR SALE - DRUG TRAFFICKING
Pulice v. INS, 218 F.3d 505 (6th Cir. June 13, 2000) (federal conviction of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) constituted aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for immigration purposes).

DELIVERY - DRUG TRAFFICKING
Nakhleh v. INS, 38 F.3d 829 (6th Cir. Oct. 27, 1994) (Michigan conviction of illegal delivery of cocaine, in violation of Mich.Comp. Laws 333.7401, constitutes an aggravated felony for immigration purposes under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

DRUG TRAFFICKING - DRUG TRAFFICKING
United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. June 23, 1994) (federal conviction of solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because "the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.").

Seventh Circuit

DISTRIBUTION OF MARIJUANA - DRUG TRAFFICKING
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).

POSSESSION FOR SALE - DRUG TRAFFICKING
Jideonwo v. INS, 224 F.3d 692 (7th Cir. Aug. 23, 2000) (federal conviction of conspiracy to possess with intent to distribute heroin is an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of disqualifying a noncitizen from eligibility for a discretionary waiver of deportation).

CONSPIRACY TO DISTRIBUTE - DRUG TRAFFICKING
Turkhan v. INS, 123 F.3d 487, 488 (7th Cir. Aug. 12, 1997) (federal conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 constituted aggravated felony conviction under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for deportation purposes), overruled on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. Dec. 22, 1998).

POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Samaniego-Rodriguez, 32 F.3d 242, 243 n.3 (7th Cir. Aug. 4, 1994), cert. denied, 514 U.S. 1052 (Apr. 3, 1995) (Illinois conviction of possession of cocaine with intent to deliver is an aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing sentence for illegal re-entry).

Lower Courts of Seventh Circuit

POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Galvan-Zermeno, 52 F.Supp.2d 922 (C.D.Ill. May 21, 1999) (Illinois felony conviction for possession of a controlled substance with intent to deliver was an "aggravated felony" under INA § 101(a)(43)(B), 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, since state felony is considered a felony under 18 U.S.C. § 924(c)).

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).

AIDING POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. July 7, 1997) (federal conviction of aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, constituted aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction was for aiding and abetting).

BUYING MARIJUANA - DRUG TRAFFICKING
United States v. Briones-Mata, 116 F.3d 308 (8th Cir. May 12, 1997) (Florida felony conviction for buying marijuana constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing illegal re-entry sentence under U.S.S.G. § 2L1.2(b)(2), despite the fact the conviction would have been a misdemeanor under federal law).

DELIVERY - DRUG TRAFFICKING
United States v. Martinez-Amaya, 67 F.3d 678, 682 (8th Cir. Oct. 10, 1995) (Oregon conviction for delivery of cocaine constituted aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of disqualifying noncitizen from eligibility for relief from deportation, so as to prevent him from showing prejudice from alleged error in deportation hearing, as predicate for conviction of illegal re-entry after deportation).

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 FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

CONTROLLED SUBSTANCES " UNIDENTIFIED SUBSTANCE AGGRAVATED FELONY " DRUG TRAFFICKING " UNIDENTIFIED SUBSTANCE
Medina-Lara v. Holder, 771 F.3d 1106 (9th Cir. Oct. 10, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health & Safety Code 11351, is neither an aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), nor a controlled substances conviction, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), under the modified categorical analysis, because the amended complaint and the abstract of judgment did not provide clear and convincing evidence regarding what specific substance the petitioner pleaded guilty to), withdrawing prior opinion at ___ F.3d ___, 2014 WL 4654481 (9th Cir. Sept. 19, 2014); distinguishing Cabantac v. Holder, 736 F.3d 787, 793-94 (9th Cir.2012) (per curiam); Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. July 1, 2011). Cross-References: Cal Crim Def Immig 8.21 (unidentified drug). Cross-References: Cal Crim Def Immig 14.20 (record failed to prove identity of drug).

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. May 30, 2012) (California conviction for violation of Health & Safety Code 11351, possession of a controlled substance for sale, is not categorically a drug trafficking offense for illegal re-entry sentencing purposes, because it is possible to be convicted under this statute for possession of a substances not listed on the federal controlled substances schedule; charging language made clear that offense involved a controlled substance, applying the modified categorical analysis), agreeing with United States v. Sanchez"Garcia, 642 F.3d 658, 661"62 (8th Cir. 2011). NOTE: Although refusing to follow similar cases in the immigration context, the Ninth Circuit found that under the sentencing guidelines, the term "controlled substance" also only refers to substances listed in the Federal schedules.

AGGRAVATED FELONY - DRUG TRAFFICKING - USE OF A COMMUNICATION FACILITY
United States v. Jimenez, ___ F.3d ___, 2008 WL 2813046 (9th Cir. Jul. 23, 2008) (federal conviction for unlawful use of a communication facility, in violation of 21 U.S.C. 843(b), qualifies as "drug trafficking offenses" under USSG 2L1.2(b)(1)(A)(i)), following United States v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
Rendon v. Mukasey, ___ F.3d ___, 2008 WL 726354 (9th Cir. Mar. 19, 2008) (Kansas conviction for violation of K.S.A. 65-4163(a), possession with intent to sell marijuana, is an aggravated felony drug conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since the state statute requires proof of trafficking and the record of conviction shows the offense did not involve solicitation).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE CONVICTION CONSTITUTES AGGRAVATED FELONY
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Martinez-Rodriguez, ___ F.3d ___ (9th Cir. Nov. 21, 2006) (California conviction of possession for sale of marijuana, in violation of Health & Safety Code 11359, constituted a drug trafficking offense for enhancing illegal reentry sentence, since full range of conduct proscribed by state statute fell within federal definition). http://caselaw.lp.findlaw.com/data2/circs/9th/0550719p.pdf

AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
United States v. Morales-Perez, ___ F.3d ___ (9th Cir. Nov. 13, 2006) (California conviction of purchasing cocaine base with intent to sell, in violation of Health & Safety Code 11351.5(a), categorically constituted a drug trafficking offense under U.S.S.G. 2L1.2(b)(1)(A) for illegal re-entry sentencing purposes, since the full range of conduct proscribed by the California statute fell within the definition of the federal offense of attempted possession with intent to distribute under 21 U.S.C. 841(a)(1) and 846, an offense explicitly included in the definition of "drug trafficking offense" contained under U.S.S.G. 2L1.2 cmt. n.5). http://caselaw.lp.findlaw.com/data2/circs/9th/0510115p.pdf

MAINTAINING A PLACE TO STORE DRUGS FOR SALE - DRUG TRAFFICKING OFFENSES
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).

POSSESSION FOR SALE OR PURCHASE OF COCAINE BASE FOR SALE - DRUG TRAFFICKING
United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006) (California conviction for possession or purchase of cocaine base for purposes of sale, in violation of California Health & Safety Code § 11351.5, is not categorically a drug trafficking offense within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) for purposes of illegal re-entry sentencing, because the California offense includes purchase for sale, which is not drug trafficking under the guidelines).

POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (Nevada conviction for a violation of N.R.S. § 453.337.1, which provides that "it is unlawful for a person to possess for the purpose of sale . . . any controlled substance classified in schedule I or II," constitutes a drug trafficking offense as defined by U.S.S.G. § 2L1.2 for purposes of imposing a 16-level enhancement to the sentence for illegal re-entry, because the statute does not reach conduct outside of the Guidelines definition of a drug-trafficking offense).

ATTEMPTED SALE OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
United States v. Hernandez-Valdovinos, 352 F.3d 1243 (9th Cir. Dec. 17, 2003) (Arizona attempted sale conviction, in violation of A.R.S. § 13-3408, constituted drug trafficking offense for illegal re-entry sentence enhancement purposes, under U.S.S.G. § 2L1.2).

MONEY LAUNDERING - DRUG TRAFFICKING
Lara-Chacon v. Ashcroft, 345 F.3d 1148 (9th Cir. Oct. 10, 2003) (BIA improperly relied upon presentence report in finding Arizona conviction for conspiracy to commit money laundering in violation of Ariz. Rev. Stat. § 13-1003, 12-2317(A)(1), (C) was a drug trafficking crime where presentence report indicated respondent was a drug dealer and the offense involved 15 pounds of marijuana).

TRANSPORTATION DOES NOT EQUAL IMPORTATION OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a nonstop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).

SOLICITATION - DRUG TRAFFICKING
United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. May 20, 2003) (Oregon: the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term "includes" is not exhaustive, so conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement).

MANUFACTURE - DRUG TRAFFICKING
Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir. May 5, 2003) (federal conviction of offense of manufacture of methamphetamine, in violation of 21 U.S.C. 841(a)(1), constituted an illicit-trafficking "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

DELIVERY OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
United States v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. Mar. 26, 2003) (Oregon conviction of delivery of a controlled substance, in violation of Oregon Revised Statute § 475.992, constitutes an aggravated felony within the meaning of U.S.S.G. § 2L1.2, as a drug trafficking crime under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because it is a felony punishable by more than one years imprisonment under applicable state law).

SALE, TRANSPORTATION, OR SOLICITATION - DRUG TRAFFICKING
United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001) (California conviction of sale, transportation, or solicitation of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether the conviction is an aggravated felony for purposes of enhancing a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held not to constitute an aggravated felony or controlled substances offense).

SOLICITATION TO POSSESS FOR SALE - DRUG TRAFFICKING
Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale, in violation of Ariz. Rev. Stat. § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation).

SALE OR FURNISHING - DRUG TRAFFICKING
United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. July 6, 1999), cert. denied, 528 U.S. 1095 (2000) (California conviction for selling/furnishing a controlled substance under California Health & Safety Code § 11360(a) was "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for sentencing purposes under U.S.S.G. § 2L1.2(b)(1)(A)).

TRANSPORTATION OF DRUGS - DRUG TRAFFICKING
United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. June 22, 1999) (California conviction of transportation of marijuana under California Health & Safety Code § 11360 cannot serve as a federal career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).

DRUG TRAFFICKING
Ortiz v. INS, 179 F.3d 1148 (9th Cir. June 8, 1999) (Guatemala conviction for drug trafficking was "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for immigration purposes).

FURNISHING - DRUG TRAFFICKING
United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction under California Health and Safety Code § 11360(a) for selling/furnishing marijuana constitutes an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for illegal re-entry sentencing purposes within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)).

SALE OR TRANSPORTATION - DRUG TRAFFICKING
United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (California conviction for sale/offer to sell/transportation of marijuana, in violation of California Health & Safety Code § 11360(a), was an "aggravated felony," under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of illegal re-entry sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)), cert. denied, 531 U.S. 864 (2000), overruled by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. Apr. 18, 2001).

SALE OR TRANSPORTATION - DRUG TRAFFICKING
United States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. Feb. 28, 1994) (California conviction for sale or transportation of a controlled substance, in violation of California Health & Safety Code § 11352, was an "aggravated felony" for purposes of enhancing sentence for offense of illegal re-entry).

SALE - DRUG TRAFFICKING
Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. Mar. 26, 1993) (California convictions for selling drugs constituted aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

SALE - DRUG TRAFFICKING
Arthurs v. INS, 959 F.2d 142 (9th Cir. Mar. 18, 1992) (California conviction for sale of cocaine was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B)).

Lower Courts of Ninth Circuit

SALE - DRUG TRAFFICKING
Romero v. Reno, 198 F.Supp.2d 276 (W.D.N.Y. Sept. 25, 2001) (New York conviction for criminal sale of controlled substance in the third degree, in violation of N.Y. Penal Law § 220.43, constituted conviction for aggravated felony, under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)).

ATTEMPTED SALE - DRUG TRAFFICKING
United States v. Jimenez, 921 F.Supp. 1054 (S.D.N.Y. Nov. 13, 1995), affd, 131 F.3d 132 (2d Cir. Dec. 2, 1997) (Table) (New York convictions of attempted criminal sale of cocaine in the third degree constituted "illicit trafficking in a controlled substance," and were therefore aggravated felonies under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), disqualifying the noncitizen from receiving voluntary departure).

SALE - DRUG TRAFFICKING
Mejia-Ruiz v. INS, 871 F.Supp. 159 (E.D.N.Y. Dec. 16, 1994) (New York felony conviction for criminal sale of cocaine in the fifth degree was an "aggravated felony" under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of eligibility to be admitted into United States on parole where conviction would have been punishable as felony if prosecuted under federal law).

DISTRIBUTION - DRUG TRAFFICKING
Kellman v. District Director, U.S. INS, 750 F.Supp. 625 (S.D.N.Y. Nov. 6, 1990) (New York conviction for distribution of a controlled substance, in violation of New York Penal Law § 220.39, constituted aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for removal purposes).

Tenth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Torres-Romero, 537 F.3d 1155, 2008 WL 3843344 (10th Cir. Aug. 19, 2008) (Colorado conviction for distribution, manufacture and possession of a controlled substance, in violation of Colorado Revised Statute 18-18-105 (1990) (repealed 1992 and redesignated as 18-18-405), constituted aggravated felony drug trafficking conviction for illegal re-entry purposes, because guilty plea admitted all of the material facts in the charging information, including that he distributed and sold a controlled substance).

DELIVERY OF CONTROLLED SUBSTANCE - DRUG TRAFFICKING
United States v. Chavez-Diaz, __ F.3d __, 2006 WL 1000811 (10^th Cir. Apr. 18, 2006) (Wyoming conviction for delivery of a non-narcotic controlled substance constituted an aggravated felony controlled substance offense for illegal re-entry sentencing purposes).

POSSESSION FOR SALE - DRUG TRAFFICKING
United States v. Guerrero-Hernandez, 95 F.3d 983 (10th Cir. Sept. 6, 1996) (New Mexico conviction for possession of marijuana or hashish for sale qualified as aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for purposes of enhancing sentence under U.S.S.G. § 2L1.2(b)(2) for illegal re-entry).

Eleventh Circuit

ATTEMPTED SALE OF A CONTROLLED SUBSTANCE - DRUG TRAFFICKING
United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (state conviction of attempted sale of a controlled substance is a drug trafficking offense for sentencing purposes).

DRUG TRAFFICKING
United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. June 10, 2003) (Georgia conviction of possession of 28 grams or more of methamphetamines, in violation of O.C.G.A. § 16-13-31(e), constituted a "drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level increase in sentence for illegal re-entry, since Georgias inference of intent to distribute from possession of an elevated amount of drugs is permissible).

POSSESSION FOR SALE - DRUG TRAFFICKING
Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n.3 (11th Cir. Jan. 25, 2002) (Florida conviction of possession of cocaine with intent to distribute, in violation of Fla. Stat. Ann. § 893.13, constituted an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B) for removal purposes).

Other

N
ote: 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).