(A)  Ninth Circuit Law.  In Coronado-Durazo v. INS,[84] the Ninth Circuit found that the offense of solicitation to possess cocaine,[85] a general solicitation statute applicable to all criminal offenses, was not “related to” a controlled substances offense.[86]  Rejecting the reasoning of the Board of Immigration Appeals in Matter of Beltran,[87] the Ninth Circuit found that the plain language of the former deportation ground “limit[ed] convictions for generic crimes that may result in deportation to conspiracy and attempt.”[88]  Therefore, while a conviction for the “generic crimes” of attempt or conspiracy to commit a controlled substances offense would be a basis for deportation, the court held that a conviction of solicitation to commit a controlled substances offense[89] would not be an offense “related to” controlled substance because, “[s]imply put, solicitation is not on the list.”[90] 

                        In Leyva-Licea v. INS,[91] the Ninth Circuit expanded this analysis to find that a conviction under the same Arizona statute was not an aggravated felony drug trafficking offense, because, like INA § 241(a)(2)(B)(i), 8 U.S.C. § 1231(a)(2)(B)(i), the Controlled Substances Act punishes the generic offenses of attempt and conspiracy to commit a controlled substances offense, but does not punish the generic offense of solicitation to commit such an offense.[92] 

           

            In United States v. Rivera-Sanchez,[93] the court held that California Health & Safety Code § 11360(a) is a divisible statute, since it includes several distinct offenses, each with different elements.[94]  Expanding the holding of Leyva-Licea, the Ninth Circuit found that a conviction under California Health & Safety Code § 11360(a) could not be considered an aggravated felony drug offense since 21 U.S.C. § 846 punishes attempt and conspiracy to commit an act punished under the Controlled Substances Act, but not solicitation to commit such an act.

           

           

Rivera-Sanchez additionally noted that a conviction may be sustained under California Health and Safety Code § 11360(a) when a defendant transports marijuana for personal use, even if the defendant would not be guilty of possession of marijuana, and even though the transportation is done for personal use or without any profit motive.[95]  Like solicitation, transportation of a controlled substance for personal use is not punished under the federal Controlled Substances Act.  See § 7.69, supra; Appendix C, infra.  Since a conviction for transportation may be committed without a profit motive, the offense also cannot be considered “illicit trafficking” in a controlled substance under the common meaning of the term.[96]  See § 7.68, supra.

            Coronado-Durazo and Rivera-Sanchez also compel a finding that offer to transport a controlled substance is not an offense related to a controlled substance within the meaning of the deportation ground.[97]  The Ninth Circuit has stated that the “relating to” language, found in various sections of the Act “although broad, does have some limits.”  Specifically, the “related to” language has been limited “where to read it broadly would render meaningless other words in the statutory language.”[98]  To read the “related to” language in the controlled substances deportation ground[99] to include solicitation offenses would render meaningless the “conspiracy or attempt” language also included in that section, since conspiracy or attempt to commit a controlled substances offense would certainly be “related to” a controlled substance as well.  If the generic offenses of conspiracy and attempt were automatically included as offenses “related to” a controlled substance, there would have been no need for Congress specifically to add to the controlled substances ground of deportation the language “(or a conspiracy or attempt to violate) any law . . . relating to a controlled substance . . . .”[100]  Given the fact that the “related to” language therefore excludes attempt and conspiracy, the extension of Leyva-Livea made by Rivera-Sanchez in the context of the aggravated felony definition must apply equally to the controlled substances conviction ground of deportation.[101]  

[84] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997).

[85] Arizona Revised Statute § 13-002(A).

[86] Former INA § 241(a)(2)(B)(i), currently INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[87] Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (conviction of solicitation to possession of a controlled substance under Ariz.Rev.Stat.Ann. § 13-1002 (1989) constitutes a conviction relating to a controlled substance); see also Matter of Del Risco, 20 I. & N. Dec. 109 (BIA 1989) (conviction of facilitation of the unlawful sale of cocaine renders a noncitizen deportable on account of a conviction of violating a law relating to a controlled substance).

[88] Coronado-Durazo, 123 F.3d 1322, 1325 (9th Cir. 1997).

[89] A.R.S. § 13-002(A).

[90] Coronado-Durazo, 123 F.3d 1322, 1325 (9th Cir. 1997) (emphasis added).

[91] Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999).

[92] See 21 U.S.C. § 846 (attempt or conspiracy).

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

[94] California Health & Safety Code § 11360(a) punishes any person who “transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, or administer, or give away, or attempts to import into this state or transport” marijuana. (emphasis added).

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

[96] See Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), “does not include state or federal offenses that do not involve the marketing of drugs.”); Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992) (trafficking includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”).

[97] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[98] Luu-Le v. INS, 224 F.3d 911, 196 (9th Cir. 2000), citing Leyva-Licea, supra, and Coronado-Durazo, supra.

[99] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[100] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[101] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (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 USSG 2L1.2(b)(1)(A)(i) (2003), for illegal reentry 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).

CONTROLLED SUBSTANCES - SOLICITATION CONSTITUTES A CONVICTION RELATING TO A CONTROLLED SUBSTANCE
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Fifth Circuit rejected reasoning of Coronado-Durazo, holding a conviction of solicitation to transport marijuana for sale constituted a conviction of an offense relating to a controlled substance)

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - CALIFORNIA DRUG TRAFFICKING STATUTE IS DIVISIBLE
United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).