Criminal Defense of Immigrants


§ 21.23 (B)

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(B)  Aggravated Felony.  Transportation of a controlled substance is not specifically forbidden under federal law (other than importation across a border).[198]  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.[199]  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 carrying the drugs.[200]  See § 19.62(D), supra.

[198] See Appendix C, infra.  The DHS might argue that transportation is akin to importing into the customs territory of the United States, under 18 U.S.C. § 952, but the offenses have different elements.  See United States v. Martinez, 232 F.3d 728, 734 (9th Cir. 2000) (California transportation offense is not analogous to federal importation offense).  Cf. 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); United States v. Sandoval-Barajas, 206 F.3d 853 (9th Cir. 2000) (requiring a match between the substantive elements of the federal and state statutes). 

[199] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999).  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 federal sentencing purposes since 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).

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