(F)  Controlled Substances Offense.  This offense is not a controlled substances offense, because there is no element of the offense that mentions or “relates to” controlled substances.  This offense does not fall within any other ground of deportation.  Therefore, a conviction of this offense does not trigger any ground of deportation, and constitutes a safe haven.

 

            The maximum sentence for this offense is often a good deal less than the maximum possible prison sentence for manufacturing methamphetamines.  Compare California Health & Safety Code § 11379.6 (maximum sentence of seven years) with California Penal Code § 374.8 (maximum sentence of three years).  Moreover, prosecutors tend to be quite punitive with respect to those who run meth labs.  It may be difficult to convince a prosecutor or court to plead the defendant down to this relatively minor offense, unless the sentence can be enhanced by sentence enhancements or additional consecutive counts, or the particular defendant is markedly less culpable than the typical speed manufacturer.  This does occur, however.  The prosecution case may be somewhat weak, as in the example of a visitor to a farm containing a meth lab who arrives during the police execution of the search warrant, or someone who performs a relatively minor role in the offense, an underling or someone involved for a very short time, or someone who did not fully know what was going on, or a girlfriend of a player.  Nonetheless, this safe haven is very useful in a proper case, as it protects the noncitizen defendant completely against deportation on account of this conviction.

Ninth Circuit

SAFE HAVENS - HAZARDOUS WASTE - FEDERAL
United States v. Barken, ___ F.3d ___ (9th Cir. June 27, 2005) (sentence for unlawful transportation and disposal of hazardous material without a permit remanded under United States v. Booker, 125 S.Ct. 738 (2005)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0350441p.pdf