Criminal Defense of Immigrants

 

(B)  Gratuitous Distribution of Small Amount of Marijuana.  In light of Lopez,[624] a state or federal conviction for distribution of a small amount of marijuana, without remuneration, will not be considered an aggravated felony because it is not a felony under federal law.[625]

Although distribution of a controlled substance is generally punishable as a felony under federal law,[626] distribution of a small amount of marijuana, THC[627] or hashish[628] is not a considered a federal felony:

 

Notwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marijuana for no remuneration shall be treated [as a person convicted of simple possession of marijuana] as provided in 844 [punishing simple possession of marijuana as a misdemeanor] and section 3607 of Title 18 [the Federal First Offender Act].[629]

 

This means that anyone convicted of free distribution of a small amount of marijuana must (“shall”) be treated as if convicted of simple possession of a controlled substance under 21 U.S.C. § 844(a), which is a federal misdemeanor. 

 

Unless the DHS can prove that the amount distributed was not “small,” [630] the offense should fall within 21 U.S.C. § 841(b)(4), making the distribution treatable as though it were a federal misdemeanor conviction of simple possession.  Congress did not define “small amount” for purposes of 21 U.S.C. § 841(b)(4).  Rather, the term “small amount” is taken to be relative to the circumstances of the case.[631]  Where there is nothing in the record of conviction that indicates how much marijuana was involved in the offense, the government cannot prove the quantity was not “small” and thus cannot prove the offense would not have been a misdemeanor if prosecuted in federal court.

 

                The DHS also bears the burden in applying a divisible statute analysis.  See § 17.9, supra.  In Wilson v. Ashcroft,[632] the Third Circuit found that the New Jersey statute punishing possession of at least one ounce[633] (and less than five pounds) of marijuana with intent to manufacture, distribute, or dispense[634] was generally analogous to the offense defined in 21 U.S.C. § 841(a)(1), a federal felony.  However, because the state statute under which the defendant pleaded guilty did not have remuneration as an element, the court held that the INS could not demonstrate from the record of conviction that Wilson’s conviction was not for distribution of a small amount of marijuana without remuneration.

 

                Therefore, a first-offense conviction for gratuitous distribution of a small amount of marijuana should be treated, in terms of whether it is an aggravated felony, the same as a first-offense conviction for simple possession of marijuana.[635]

               

                Distribution of a small amount of marijuana is also, under 21 U.S.C. § 841(b)(4), subject to Federal First Offender Act[636] treatment.  Therefore, if the conviction arose in federal court in any circuit, or in a state court located within the Ninth Circuit, the conviction may be effectively expunged for immigration purposes, just as if the conviction were for simple possession.  See § 11.20, supra.

 

[624] Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625 (Dec. 5, 2006) (state conviction for first-time simple possession is not an aggravated felony because the offense is not punishable as a felony under federal law).

[625] 21 U.S.C. § 841(b)(4); Steele v. Blackman, 236 F.3d 130, 137 (3d Cir. Jan. 2, 2001) (“Looking to federal law, the District Court . . . correctly concluded that ‘distributing a small amount of marijuana for no renumeration’ is treated as simple possession under 21 U.S.C. § 844 and is punishable by a maximum of one year.  Based on [this conclusion], the hypothetical felony approach should have led the District Court to hold that Steele has not been convicted of an aggravated felony. . . .”); United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § 32C(a) and M.G.L. 274 § 1, did not constitute “felony,” and was therefore not an “aggravated felony,” under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry, even though defendant’s offense would have been classified as a felony if it had been prosecuted under federal law, since a state misdemeanor can never be a felony under the federal definition).

[626] 21 U.S.C. § 841(a)(1).  See, e.g., Berhe v. Gonzales, 464 F.3d 74 (1st Cir. Sept. 26, 2006) (Massachusetts conviction of misdemeanor possession of marijuana with intent to distribute, in violation of Mass. Gen. Laws ch. 94C, § 32C(a), constituted an aggravated felony drug trafficking conviction under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), despite its classification as a misdemeanor under state law, because it had an element of distribution and would therefore have been a felony if it had been prosecuted in federal court).

[627] Cf. Ali v. Ashcroft, 395 F.3d 722 (7th Cir. Jan. 11, 2005) (Illinois felony conviction of possession with intent to distribute THC, in violation of Wis. Stat. § 961.41(1)(h)(1), held an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); argument that THC falls within definition of marijuana and therefore gratuitous distribution of small amount of marijuana does not constitute a felony under federal law not addressed).

[628] 21 U.S.C. § 802(16) (defining marijuana to include all parts of the Cannabis plant, including hashish).  See also N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 9.5(B) (2005).

[629] 21 U.S.C. § 841(b)(4).

[630] Cf. United States v. Lowe, 143 F.Supp.2d 613, 616-619 (S.D. W. Va. 2000) (applying Apprendi v. New Jersey, 530 U.S. 466 (2000), to hold that to sentence a defendant convicted of distribution of marijuana as a federal felony, the government must show beyond a reasonable doubt that the amount involved was not “small”).

[631] See United States v. Damerville, 27 F.3d 254, 258-259 (3d Cir. 2001) (17.2 grams not a “small amount” when distributed in a prison setting).

[632] Wilson v. Ashcroft, 350 F.3d 377 (3d Cir. Nov. 26, 2003).

[633] One ounce is 28.5 grams.

[634] N.J. Stat. Ann. § 2C:35-5b(11).

[635] See § 19.58, supra.

[636] 18 U.S.C. § 3607.