Criminal Defense of Immigrants


§ 21.25 A. Sale

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Sale of a controlled substance is a drug trafficking offense.  This includes possession for sale,[215] attempted sale,[216] conspiracy for sale[217] and other offenses “related” to the sale of drugs.[218]  In the Ninth Circuit, at least, a conviction for solicitation (i.e., offering to sell) a controlled substance does not trigger deportation at all or inadmissibility (except to the extent it gives the DHS “reason to believe” the noncitizen is a drug trafficker).[219]


A conviction for sale will trigger deportation as a controlled substances offense,[220] aggravated felony,[221] and crime of moral turpitude.[222]  Whether resulting in a conviction or not,[223] sale may trigger inadmissibility as a controlled substances offense and a crime of moral turpitude, if there is an admission of committing the offense, and also provides the DHS with “reason to believe” that the noncitizen is a drug trafficker.[224]  That one sells controlled substances, however, does not mean that one abuses or is addicted to them.[225] 

[215] 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 U.S.S.G. § 2L1.2(b)(1)(A)(i)).  But see United States v. Morales-Perez, 448 F.3d 1158 (9th Cir. May 31, 2006) (federal crime of attempted possession of a controlled substance with intent to sell encompasses the California crime of purchasing cocaine base for purposes of sale, so conviction under California Health and Safety Code § 11351.5 for possession or purchase of cocaine base with intent to distribute categorically qualifies as a predicate drug trafficking offense under the federal sentencing guidelines), withdrawing from prior decision United States v. Morales-Perez, 438 F.3d 971 (9th Cir. Feb. 22, 2006).

[216] United States v. Phillips, 413 F.3d 1288 (11th Cir. June 22, 2005) (attempted sale of a controlled substance, in violation of state law is a drug trafficking offense for sentencing purposes), agreeing with United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1247, 1249 (9th Cir. 2003).

[217] See INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U) (attempt or conspiracy to commit an aggravated felony is an aggravated felony).

[218] See § § 16.36, supra, 21.33, infra.

[219] See § 21.32, infra.

[220] Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. Feb. 10, 2003) (New York conviction of criminal sale of a controlled substance constitutes a controlled substance offense, triggering deportation under INA § 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i)).

[221] See, e.g., United States v. Polanco, 29 F.3d 35 (2d Cir. July 12, 1994).

[222] See, e.g., Matter of Y, 2 I. & N. Dec. 600 (BIA 1946); United States ex rel. Dentico v. Esperdy, 280 F.2d 71 (2d Cir. 1960); DeLuca v. O’Rourke, 213 F.2d 759 (8th Cir. 1954).

[223] See § 18.8, supra.

[224] See § 21.6, supra.

[225] See § 21.10, supra.