(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.

BIA

AGGRAVATED FELONY"CONTROLLED SUBSTANCES"DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA WITHOUT REMUNERATION
Matter of Castro Rodriguez, 25 I&N Dec. 698 (BIA 2012) (noncitizen bears burden to establish state conviction of intent to distribute involved a "small amount of marihuana for no remuneration within the meaning of 21 U.S.C. 841(b)(4), which the noncitizen may establish by presenting evidence outside of the record of conviction), Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified.

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSE " DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) (remanding case to IJ to allow respondent to present factual evidence that Virginia conviction of possession with the intent to give or distribute less than one-half ounce of marijuana, in violation of Va. Rev. Stat. 18.2-248.1(a)(1), involved only gratuitous distribution of a small amount of marijuana); following Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (the federal felony conspiracy to distribute a controlled substance offense, 21 U.S.C. 841(a)(1), (b)(1)(D), allows for the consideration of evidence outside the record of conviction for the purpose of reducing the felony offense to a misdemeanor); citing United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003). NOTE: The BIA relied upon Nijhawan v. Holder, 557 U.S. 29 (2009), to find the circumstance-specific approach is appropriate to determine whether a conviction of possession of marijuana with intent to distribute involved a small amount of marijuana and no remuneration. The BIA stated that the less than 30 grams of marijuana exception, may, in general, serve as a useful guidepost in determining whether an amount is small. Matter of Castro Rodriguez, 25 I&N Dec. at 703.

First Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun. 20, 2008) (Massachusetts conviction of possession with intent to distribute a Class D substance (marijuana), in violation of Mass. Gen. Laws ch. 94C, 32C(a), constituted aggravated felony drug trafficking conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of the aggravated felony disqualification from eligibility for cancellation of removal for LPRs, rejecting the argument that the offense would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003).

AGGRAVATED FELONY - DRUG TRAFFICKING - FEDERAL MISDEMEANOR DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Julce v. Mukasey, 530 F.3d 30 (1st Cir. Jun.20, 2008) (burden is on the noncitizen/defendant to show that a state conviction for distribution of marijuana would have been treated as a misdemeanor pursuant to 21 U.S.C. 841(b)(4), under the hypothetical federal felony analysis, if prosecuted under federal law; court leaves open the question of whether the noncitizen must meet burden only through criminal documents or can introduce additional evidence before the IJ), disagreeing with Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003)

Second Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING- GRATUITOUS DISTRIBUTION OF A SMALL AMOUNT OF MARIHUANA
Martinez v. Mukasey, 551 F.3d 113 (2d Cir. Dec. 18, 2008) (New York conviction for criminal sale of marihuana in the fourth degree, in violation of NYPL 221.40, is not categorically a drug trafficking aggravated felony, since the offense punishes non-remunerative distribution of as little as two grams of marijuana; the minimum conduct analysis applies, and the Government, not the respondent, bears the burden of proving the conviction is an aggravated felony).

NOTE: This case implicitly disagrees with Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) (respondents burden to show conviction was for distribution of a small amount of marijuana without remuneration).

Third Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - DRUG POSSESSION AND LESSER OFFENSES - DISTRIBUTION OF A SMALL AMOUNT OF MARIJUANA
Evanson v. Attorney General, 550 F.3d 284 (3d Cir. Dec. 19, 2008) (Pennsylvania conviction for violation of 35 Pa. Stat. Ann. 780-113, manufacture, deliver, or possess with an intent to manufacture or deliver a controlled substance, to wit: marijuana, is not necessarily an aggravated felony because the statute includes distribution of a small amount of marijuana without remuneration, which is neither a federal felony, nor a drug trafficking offense), following Steele v. Blackman, 236 F.3d 130, 137 (3d Cir.2001).

NOTE: the BIA, in Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), disagreed, finding that the "gratuitous distribution of a small amount of marijuana" statute was an affirmative defense, which the defendant must prove. Counsel can argue that, in the case of a state conviction, there is no such statutory exception and defense counsel in state court would have had no reason to submit proof that only a small amount was involved. Therefore, to require that this extra showing have been made before the state court is unreasonable. Thanks to Jonathan Moore.

Fifth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING " CERT GRANTED
Moncrieffe v. Holder, 662 F.3d 387 (5th Cir. Nov. 8, 2011), cert. granted, No. 11-702 (Apr. 2, 2012). Note: The Supreme Court will decide whether a state conviction under a state statute that includes distribution of a small amount of marijuana without remuneration is a drug trafficking aggravated felony, even where the record of conviction does not establish that the noncitizen was convicted of an offense that would constitute a federal felony.

Sixth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " POSSESSION WITH INTENT TO DELIVER
Garcia v. Holder, ___ F.3d ___, 2011 WL 1105591 (6th Cir. Mar. 28, 2011) (Michigan conviction attempted possession of marijuana with the intent to deliver [actual, constructive, or attempted transfer from 1 person to another] less than five kilograms, in violation of Mich. Comp. Laws 333.7401(2)(d)(iii), constituted a drug trafficking aggravated felony, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), even though no commercial element was required to constitute the offense, because the federal Controlled Substances Act similarly prohibits a person from possess[ing] with intent to ... distribute ... a controlled substance, 21 U.S.C. 841(a)(1), as a felony, rejecting the argument that government must negate the misdemeanor exception under which gratuitous distribution of a small amount of marijuana constitutes only a misdemeanor under 21 U.S.C. 841(b)(4) since the small amount exception is not an element of the offense); see United States v. Bartholomew, 310 F.3d 912, 925 (6th Cir. 2002) (the amount of marijuana involved need not be proven to the jury in order to convict under 841(a) or punish under 841(b)(1)(D)); United States v. Hamlin, 319 F.3d 666, 670-71 (4th Cir. 2003) (holding that 841(b)(1)(D) is the default provision for possessing an undetermined amount of marijuana with the intent to distribute the drug); following Julce v. Mukasey, 530 F.3d 30, 34-36 (1st Cir. 2008); contra, Martinez v. Mukasey, 551 F.3d 113, 120 (2d Cir. 2008) ([W]e look no further than to the fact that Martinez's conviction could have been for precisely the sort of nonremunerative transfer of small quantities of marihuana that is only a federal misdemeanor under 21 U.S.C. 841(b)(4).); Jeune v. Attorney Gen., 476 F.3d 199, 205 (3d Cir. 2007) (the least culpable conduct involved a small amount of marijuana and no remunerative exchange, Jeune's state offense was deemed punishable under the misdemeanor provision of 21 U.S.C. 841(b)(4) and therefore not an aggravated felony).

Other

ARGUMENT " AGGRAVATED FELONY " GRATUITOUS DISTRIBUTION OF SMALL AMOUNT OF MARIJUANA
Counsel can argue that the Board of Immigration Appeals holding in Matter of Aruna, 24 I. & N. Dec. 452 (BIA 2008), that where a noncitizen was convicted under state law of distribution of marijuana, the offense would be considered an aggravated felony unless the respondent could prove to the Immigration Court that the offense did fall within 21 U.S.C. 841(b)(4) (gratuitous distribution of small amount of marijuana constituted no more than a misdemeanor under federal controlled substances acts), is in error, since the reasoning of Matter of Aruna has been overruled by the United States Supreme Court in Carachuri-Rosendo v. Holder, __ U.S. __, 130 S.Ct. 2577 (2010), which rejected the hypothetical federal felony reasoning on which Matter of Aruna was based.