This section has been intentionally left blank to allow for the inclusion of additional safe havens in the future.  We welcome your suggestions, and will be happy to share them with others via future editions of this book and its monthly updates on http://www.CriminalAndImmigrationLaw.com.

 

Ninth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " CALIFORNIA TRANSPORTATION OFFENSES NOW ARE DEFINED AS TRANSPORTATION FOR SALE
Health & Safety Code 11360, 11379.5 and 11391 (amended by AB 730, filed Jul. 13, 2015) ("transport" under these statutes is amended to mean transport for sale). http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB730 Note: Conviction of transportation of a controlled substance listed under the federal controlled substances schedules now constitutes a drug trafficking aggravated felony, under 8 U.S.C. 1101(a)(43)(B). This change makes the definition of transport in these statutes the same as the previous change in Health & Safety Code 11379, 11352. This protects defendants against the enhanced sentence exposure of a sale-level offense for the more minor offense of transportation of a controlled substance for personal use. On the other hand, noncitizens convicted under this new definition of transportation are subject to the extreme immigration consequences attached to aggravated felony convictions, 8 U.S.C. 1101(a)(43)(B), instead of less serious ones for convictions of controlled substances offenses. 8 U.S.C. 1227(a)(2)(B)(i). Counsel can still attempt to plead to offer to sell or offer to transport under these statutes, which will not constitute a drug-trafficking aggravated felony at least in the Ninth Circuit.

Other

SAFE HAVENS " CRIMES OF MORAL TURPITUDE " DEPOSITING GOODS IN BUILDINGS NEAR THE U.S. BORDER
18 U.S.C. 547. Depositing goods in buildings on boundaries, punishes [w]hoever receives or deposits any merchandise in any building upon the boundary line between the United States and any foreign country, or carries any merchandise through the same, in violation of law This offense constitutes a regulatory offense, that is not a crime of moral turpitude. See N. TOOBY, ET AL., TOOBYS CRIMES OF MORAL TURPITUDE 8.22 (2008). There is nothing inherently evil about taking goods across a border in violation of an unspecified law.

SAFE HAVEN - AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL - USE OF A TELEPHONE TO MAKE PLACE AVAILABLE TO STORE PROCEEDS OF UNLAWFUL ACTIVITY
A federal conviction of Interstate Travel in Aid of Racketeering, in violation of 18 U.S.C. 1952(a)(3), would not constitute an aggravated felony drug trafficking conviction, or a controlled substances conviction, if was framed as "knowingly use telephone facility in interstate commerce, to carry on an unlawful activity, as defined in 1952(b), by storing currency that is the proceeds of such unlawful activity." Section 1952(b) is divisible in its definition of unlawful activity, and includes "any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the law of the State in which they are committed or of the United States . . . ." 18 U.S.C. 1952(b)(1). Some of these unlawful activities, particularly gambling and liquor tax violations, are harmless under federal immigration law. So long as the record of conviction does not identify the unlawful activity as controlled substances trafficking, this should be a safe haven for deportation purposes since the government bears the burden of proof. It is necessary to keep the factual admissions in the Plea Agreement from mentioning drugs; perhaps the specific reference to "currency which is the proceeds of an unlawful activity as defined in 18 U.S.C. 1952(b) would suffice as an admission in the Plea Agreement and plea colloquy. If so, the conviction should constitute a safe haven.

SAFE HAVEN - SALE OF SIMULATED CONTROLLED SUBSTANCE
There is some risk that since the simulated controlled substances is sold "as" a controlled substance, a court would rule the state law prohibiting it would be a law "related to" a controlled substance.  Such a violation should not be an aggravated felony, however, since the federal counterfeit controlled substances law does not cover sale of flour pretending it is a controlled substance.  See 21 U.S.C. 802(7) ("counterfeit controlled substance" must be a "controlled substance" pretending to be manufactured by someone other than the actual manufacturer), 841(a)(2) (sale, etc. of counterfeit controlled substances prohibited). A "simulated controlled substance" is clearly distinct from a "counterfeit substance" treated in  21 USC 841(a)(2), and not included in the Controlled Substance Act, so it shouldn't be an aggravated felony.      As far as being a crime related to a controlled substance, three circuits have addressed the issue in the context of the USSG guidelines, (which can be distinguished since it uses a different definition).  United States v. Crittenden, 372 F.3d 706, (5th Cir. 2004) (Texas USSG case holds a simulated CS is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) ("[Th]e district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.").      Thanks to Jonathan Moore for this analysis.

SAFE HAVEN - TRANSPORTATION FOR PERSONAL USE
California Health & Safety Code 11379(a) prohibits a number of different offenses, including transportation of a controlled substance. This offense does not have as an element any requirement that the transportation be for purposes of sale, and therefore encompasses transportation for personal use. Transportation for personal use is included within the definition of "nonviolent drug possession offense," for which charge a defendant is eligible for Prop. 36 no drug treatment and for which imposition of any custodial sentence is initially prohibited. California Penal Code 1210(a). Therefore, a conviction of transportation of a controlled substance under Health & Safety Code 11379(a) that does not specify whether it is for personal use cannot be considered a drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for deportation purposes, because the government bears the burden of proving deportability, and cannot do so because it cannot show that the Health & Safety Code 11379(a) conviction disqualifies the defendant from no-jail treatment under Penal Code 1210.1, and therefore cannot establish that the conviction is a felony under the federal definition that requires that the conviction be punishable by a sentence in excess of one year in custody. Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. November 3, 2006) (California conviction of sale or offer to transport a controlled substance, in violation of Health & Safety Code 11379(a), does not constitute a felony, and therefore cannot constitute an aggravated felony drug trafficking conviction, if state law prevents imposition of sentence greater than one year in custody: "We also note that California recently enacted a new drug statute requiring mandatory probation for first offenses for nonviolent drug offenders. California Penal Code 1210.1. Under this new probation statute, it is unclear whether 11379(a) can be characterized as an aggravated felony in view of the fact that a first offense under this statute may no longer carry the possibility of a punishment of more than one year.").

SAFE HAVEN - CONTRABAND CIGARETTES
A conviction of possession of contraband cigarettes, in violation of 18 U.S.C. 2342, should not constitute a crime involving moral turpitude. The statute provides:

(a) It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes.
(b) It shall be unlawful for any person knowingly to make any false statement or representation with respect to the information required by this chapter to be kept in the records of any person who ships, sells, or distributes any quantity of cigarettes in excess of 60,000 in a single transaction.

The first subsection should not be a CMT, since no fraudulent intent is required, merely possession, and all the verbs are in the disjunctive. Contraband does not mean stolen, but out of compliance with a basically regulatory requirement. See N. TOOBY & J. ROLLIN, CRIMES OF MORAL TURPITUDE 9.44 (2005). The second subsection is closer but also should not be a CMT if courts have not found that fraudulent intent is an essential element of the offense.

SAFE HAVEN - CONTRABAND CIGARETTES
A conviction of possession of contraband cigarettes, in violation of 18 U.S.C. 2342, should not constitute a crime involving moral turpitude. The statute provides:

(a) It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes.

(b) It shall be unlawful for any person knowingly to make any false statement or representation with respect to the information required by this chapter to be kept in the records of any person who ships, sells, or distributes any quantity of cigarettes in excess of 60,000 in a single transaction.

The first subsection should not be a CMT, since no fraudulent intent is required, merely possession, and all the verbs are in the disjunctive. Contraband does not mean stolen, but out of compliance with a basically regulatory requirement. See N. Tooby & J. Rollin, Crimes of Moral Turpitude 9.44 (2005). The second subsection is closer but also should not be a CMT if courts have not found that fraudulent intent is an essential element of the offense.