(B)  Gratuitous Distribution of Small Amount of Marijuana or Hashish.  Federal law provides that a person “who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18.”  21 U.S.C. § 841(b)(4).  Therefore, a person convicted of this offense — “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” — (21 U.S.C. § 844(a)) by free distribution of a small amount of marijuana must (“shall”) be treated as if convicted of simple possession of a controlled substance under 844(a), which means it is a federal misdemeanor, and therefore not an aggravated felony under Cazarez-Gutierrez v. Ashcroft.[202]  It also means a Lujan expungement effectively eliminates the conviction, since it does so for simple possession. [203]  Since federal law includes hashish within the definition of marijuana, the same holds true for hashish.  See § 9.4, infra.

[202] Cazarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. Jan. 26, 2004).

[203] Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).