Criminal Defense of Immigrants

(D)  Transportation of a Controlled Substance.  Transportation of a controlled substance is not specifically forbidden under federal law (other than importation across a border[667]).[668]  It should therefore not be considered an aggravated felony so long as the elements do not fall within the common sense definition of commercial drug trafficking.[669]  In many states, transportation can be committed even if the drugs are possessed for personal use.  A recent California criminal case penalized transportation of methamphetamines where the defendant simply walked across a parking lot with the drugs in his pocket.[670]  Even if the state transportation conviction is a felony, it does not constitute an aggravated felony since (a) it does not fall within the common-sense definition of commercial trafficking, and (b) the offense does not fall within the second prong because the offense is not a violation of a federal controlled substances act. 

In California, moreover, a single statute criminalizes sale, offer to sell, transportation for personal use, or gratuitous distribution.[671]  In United States v. Rivera-Sanchez,[672] the Ninth Circuit held that these statutes are divisible[673] because they include several distinct offenses, each with different elements.[674]  Because a conviction for transportation of marijuana under these statutes can be supported by a evidence of simple transportation for personal use,[675] a conviction of transportation does not meet the common sense definition of “drug trafficking.”[676]

[667] 18 U.S.C. § 952.  See United States v. Cabaccang, 332 F.3d 622 (9th Cir. June 6, 2003) (transportation of controlled substances on a non-stop flight within the United States does not constitute importation under 21 U.S.C. § 952(a), even though the flight traveled through international airspace).

[668] See Appendix C, infra, for a checklist of federal controlled substances offenses.

[669] See United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. Aug. 1, 2006) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code § 11379(a), did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal reentry sentence under USSG § 2L1.2(b)(1)(B), because transportation can be committed for personal use only, and there is no commercial element to the conviction); Saleres v. INS, 22 Fed.Appx. 831 (9th Cir. Nov. 30, 2001) (unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).

[670] People v. Ormiston, 105 Cal.App.4th 676, 129 Cal.Rptr.2d 567 (First Dist., Div. One, Jan. 22, 2003).

[671] California Health & Safety Code § 11360(a).  The other California sale statutes, such as Health & Safety Code § § 11352 (sale, distribution or transportation of narcotics such as heroin and cocaine) and 11379(a) (sale of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a), except that the specific controlled substances are different.

[672] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[673] See § § 16.9-16.14, supra.

[674] See also United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. May 19, 2005) (California conviction for “[t]ransport/sell methamphetamine” under Cal. Health & Safety Code § 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2003), for illegal re-entry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

[675] See People v. Rogers, 5 Cal.3d 129, 95 Cal.Rptr. 601, 486 P.2d 129, 132 (1971); People v. Eastman, 13 Cal.App.4th 668, 16 Cal.Rptr.2d 608, 612-13 (1993).

[676] 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 career offender predicate conviction, and is not an aggravated felony, because it can be committed for personal use); Saleres v. INS, 22 Fed.Appx. 831 (9th Cir. Nov. 30, 2001) (unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).  See also United States v Rivera-Sanchez, 247F.3d 905, 908 (9th Cir. 2001), overruling United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999), cert. denied, 121 S.Ct. 156 (2000) (Cal. H&S § 11360(a); United States v. Lomas, 30 F.3d 1191 (9th Cir. 1994) (California Health & Safety Code § 11352(a))); and United States v. Lara-Aceves, 183 F.3d 1007 (9th Cir. 1999). Cf. United States v. Aguilar-Ortiz, 450 F.3d 1271 (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. § 777.04(2), is not a “drug trafficking offense” for illegal re-entry sentencing purposes because the guidelines include aiding and abetting, attempt, and conspiracy, but not solicitation offenses).