Safe Havens

(C)  Offer to Transport.  Depending upon the law of the jurisdiction in which the offense occurred, transportation of a controlled substance may be for personal use, and therefore should also not be considered a CMT.  See § 8.5, supra.

Transportation is not specifically forbidden under federal law (other than importation across a border).  See Appendix C, infra.[105]  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.  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 with the drugs in his pocket.[106]  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. 

Rivera-Sanchez also lends great support for the argument that transportation for personal use should not be considered an aggravated felony.  The Ninth Circuit overruled prior contrary law, which held that transportation was sufficiently “similar to” trafficking to be considered an aggravated felony, despite the fact that a defendant can be convicted of transportation even if his or her intent is to do so purely for personal use and not for the purpose of trafficking.[107]  

Because a conviction for transportation of marijuana under statutes such as California Health and Safety § 11360 can be supported by evidence of simple transportation for personal use,[108] a conviction of transportation does not meet the common-sense definition of “drug trafficking.”[109]  Trafficking is defined as “the unlawful trading or dealing of any controlled substance.”[110]  The Board of Immigration Appeals has explained that the concept of “trafficking” includes, at its essence, a “business or merchant nature, the trading or dealing in goods.”[111]  Simple possession or transfer without consideration are not included in the definition. [112] 

Also, transportation is not an offense listed within the three federal drug statutes cited in the aggravated felony definition.[113]  Therefore it is not analogous to any federal drug felony offense under the Barrett/Davis test, and thus cannot be considered an aggravated felony under the “federal felony test.”

Although a straight transportation conviction would still be considered a drug-related conviction, a conviction of “offer to transport” a controlled substance should be a safe haven.

[105] But see United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a non-stop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).

[106] People v. Ormiston, 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567 (2003) (the court did not reach the question whether a person who merely walked from one side of a hotel room to another could be found guilty of transporting a controlled substance).

[107] United States v Lomas, 30 F.3d 1191 (9th Cir. 1994); United States v. Arzate-Nunez, 18 F.3d 730, 736 (9th Cir. 1994), overruled by United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[108] See People v. Rogers, 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, 132 (1971); People v. Eastman, 13 Cal.App.4th 668, 16 Cal.Rptr.2d 608, 612-13 (1993).

[109] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (conviction of transportation of marijuana under California Health & Safety Code § 11360 cannot serve as a career offender predicate conviction, because it can be committed for personal use); 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).

[110] Matter of Davis, 20 I. & N. Dec.  536, 541 (BIA 1992).

[111] Ibid.

[112] Ibid; see also Black’s Law Dictionary 1495 (6th ed. 1990) (“trafficking” is “[t]rading or dealing in certain goods . . . commonly used in connection with illegal narcotic sales.”

[113] The closest may be importing into the customs territory of the United States, under 18 U.S.C. § 952, which has different elements.