Criminal Defense of Immigrants
§ 19.61 4. Commercial Element
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For the purposes of the first prong of the aggravated felony drug trafficking definition, the offense must actually involve “trafficking.” The courts have generally ignored the “trafficking” language in the second prong, instead finding that any offense punishable under the Controlled Substances Act (21 U.S.C. § § 801, et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § § 951, et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901, et seq.), regardless of whether the offense is related to drug “trafficking.” This discussion therefore relates only to the first prong of the aggravated felony drug trafficking definition.
The generic or common sense definition of “trafficking” — the first part of the aggravated felony drug trafficking category — is “the unlawful trading or dealing of any controlled substance” 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.” Therefore, any offense that does not have a commercial transaction as an essential element would constitute a safe haven under this portion of the definition.
Simple possession of any controlled substance, and transfer of a controlled substance without consideration, are not included in the definition. Beyond that, however, transportation offenses, importation offenses, and even manufacturing offenses, can be performed for personal use, as long as they have no essential element that requires a commercial transaction.
Some offenses that do not have “trafficking” as an element will nevertheless qualify as aggravated felony drug offenses if they qualify under the second prong. Other offenses, however, are aggravated felony safe havens because they do not meet either test. A conviction of transportation of a controlled substance,  for example, if it includes transportation for personal use, does not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, since there is no commercial element, and (b) it does not fall within the alternate drug trafficking definition because the offense is not a violation of any of the three listed federal statutes. For a list of federal drug offenses, see Appendix C, infra.
 See, e.g., Matter of Barrett, 21 I. & N. Dec. 171 (BIA 1990).
 Matter of Davis, 20 I. & N. Dec. 536, 541 (BIA 1992).
 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.”); Lopez v. Gonzales, 549 U.S. ___, 127 S.Ct. 625, 630 (Dec. 5, 2006) (“ordinarily ‘trafficking’ means some sort of commercial dealing.”); Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004) (looking to “ordinary meaning” to define terms in the aggravated felony definition). But see United States v. Palacios-Quinonez, 431 F.3d 832 (5th Cir. Dec. 1, 2005) (purchase for sale, in violation of California Penal Code § 11351, equals constructive possession, and therefore qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i)); United States v. Madera-Madera, 333 F.3d 1228 (11th Cir. June 10, 2003) (Georgia conviction of possession of 28 grams or more of methamphetamines, in violation of O.C.G.A. § 16-13-31(e), constituted a “drug trafficking offense” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), for purposes of a 16-level increase in sentence for illegal re-entry, since Georgia’s inference of intent to distribute from possession of an elevated amount of drugs is permissible). Palacios and Madera violate the categorical analysis limiting the government to the elements of the offense. See § 16.4, supra.
 People v. Ormiston, 105 Cal.App.4th 676 (Cal. Ct. App. Jan. 22, 2003) (California Penal Code § 11379, transportation of drugs, can be violated by walking across a parking lot with drugs in a pocket). The statute may also be violated “without regard to the particular purpose for which the transportation was provided.” People v. Rogers, 5 Cal.3d 129 (1971). The court found the legislative purpose of the statute to include reducing and inhibiting personal drug use. Ormiston, supra, at 685.
 For example, a violation of California Health & Safety Code § 11379(a) (transportation of a controlled substance).
 United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999) (conviction of transportation of marijuana under California Health & Safety Code § 11360 (a) cannot serve as a federal career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use).
AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).
AGGRAVATED FELONY " DRUG TRAFFICKING " ILLICIT TRAFFICKING ELEMENT TEST " COMMERCIAL REQUIREMENT EXCLUDES SIMPLE POSSESSION OR TRANSFER WITHOUT CONSIDERATION
Catwell v. Attorney General, 623 F.3d 199, 209, n.10 (3d Cir. Oct. 13, 2010) (Under the illicit trafficking element test, a state felony drug conviction constitutes an aggravated felony if it contains a trafficking element. Evanson, 550 F.3d at 289. Essential to the concept of trading or dealing is activity of a business or merchant nature, thus excluding simple possession or transfer without consideration. Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001).); quoting Evanson v. Attorney General, 550 F.3d 284 (3d Cir. 2008) (Pennsylvania offense of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), encompasses the act of distributing a small amount of marijuana for no remuneration, so the court could not determine that it was equivalent to a federal drug felony without more information about the conviction)).
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION
Arce-Vences v. Mukasey, 512 F.3d 167 (5th Cir. Dec. 21, 2007) ("Arce's conviction for possession [of between 50 and 2000 pounds] of marijuana is not an aggravated felony. Commission of an aggravated felony was the sole charge on which he was ordered removed. Because, in the light of Lopez, we hold that Arce's conviction for possession of marijuana is not an aggravated felony, we vacate his order of removal.").
AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Fuentes-Oyervides, 541 F.3d 286 (5th Cir. Aug. 13, 2008) (Ohio conviction for violation of Ohio R.C. 2925.03(A)(2), making it unlawful to knowingly "prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knew or had reasonable cause to believe the controlled substance was intended for sale or resale by the offender or another" was a "drug trafficking" crime for illegal re-entry sentencing purposes).
AGGRAVATED FELONY - DRUG TRAFFICKING - TRANSPORTATION OF AT LEAST 100 POUNDS OF MARIJUANA
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (North Carolina conviction of conspiring "to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana", under General Statutes of North Carolina 90-95(h), constituted a "drug trafficking offense" under USSG 2L1.2(b)(1)(A)(i) for purposes of imposing a 16-level sentence enhanccment for illegal reentry after deportation).
AGGRAVATED FELONY - DRUG TRAFFICKING - INFERRING INTENT TO SELL OR MANUFACTURE FROM AMOUNT INVOLVED IN POSSESSION/TRANSPORTATION CONVICTION
United States v. Lopez-Salas, 513 F.3d 174 (5th Cir. Jan. 3, 2008) (noting a circuit split, the court found that a possessory or transportation offense could not be considered a drug trafficking offense for illegal re-entry sentencing purposes merely because of the large amount of drugs involved; court review must be limited to elements of statute of conviction), disagreeing with United States v. Madera-Madera, 333 F.3d 1228, 1231-34 (11th Cir.2003), agreeing with United States v. Villa-Lara, 451 F.3d 963, 965 (9th Cir.2006); United States v. Montanez, 442 F.3d 485, 493-94 (6th Cir.2006); United States v. Herrera-Roldan, 414 F.3d 1238, 1240-43 (10th Cir.2005).
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE
Rendon v. Mukasey, ___ F.3d ___, 2008 WL 726354 (9th Cir. Mar. 19, 2008) (Kansas conviction for violation of K.S.A. 65-4163(a), possession with intent to sell marijuana, is an aggravated felony drug conviction, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), since the state statute requires proof of trafficking and the record of conviction shows the offense did not involve solicitation).
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION FOR SALE CONVICTION CONSTITUTES AGGRAVATED FELONY
United States v. Valle-Montalbo, 474 F.3d 1197, 2007 WL 286538 (9th Cir. Feb. 2, 2007) (California conviction of possession for sale of methamphetamines, in violation of Health & Safety Code 11378, constitutes drug trafficking aggravated felony under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), for purposes of enhancing an illegal reentry sentence by 16 levels pursuant to USSG 2L1.2(b)(1)(A)(i)).
AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Torres-Romero, 537 F.3d 1155, 2008 WL 3843344 (10th Cir. Aug. 19, 2008) (Colorado conviction for distribution, manufacture and possession of a controlled substance, in violation of Colorado Revised Statute 18-18-105 (1990) (repealed 1992 and redesignated as 18-18-405), constituted aggravated felony drug trafficking conviction for illegal re-entry purposes, because guilty plea admitted all of the material facts in the charging information, including that he distributed and sold a controlled substance).
AGGRAVATED FELONY - DRUG TRAFFICKING -- TRAFFICKING ELEMENT
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (court failed to reach claim that Utah misdemeanor conviction of possession of a controlled substance did not constitute a controlled substance offense, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), by analogy to the Sentencing Guidelines' definition requiring a trafficking element, because this specific claim had not been exhausted before the BIA), citing Salinas v. United States, 547 U.S. 188 (2006) (conviction for simple possession of a controlled substance is not a "controlled substance offense" for purposes of the United States Sentencing Guidelines because the Guidelines expressly define the offense to require a trafficking element).