(A)  Controlled Substances Offense.  Distribution will generally be considered a controlled substances offense.[227]  Given the special treatment of distribution of a small amount of marijuana under 21 U.S.C. § 841(b)(4),[228] such a conviction should, arguably, also fall within the “single offense involving possession for one’s own use of thirty grams or less of marijuana” exceptions or waiver.[229]  The Third Circuit, however, has rejected this argument.[230]

[227] See, e.g., Berhe v. Gonzalez, 464 F.3d 74 (1st Cir. Sept. 26, 2006) (Massachusetts misdemeanor conviction for possession with intent to distribute, in violation of Mass. Gen. Laws Ch. 94C, § 32C(a), triggers deportation under INA § 1182(a)(2)(A)(i)(II)).

[228] See § 21.26(B), infra.

[229] See § 21.35, infra.

[230] Wilson v. Ashcroft, 350 F.3d 377, 380 n. 2 (3d Cir. Nov. 26, 2003) (“We do not read [21 U.S.C. § 841(b)(4)] to literally convert gratuitous distribution of marijuana into ‘simple possession’ as the term is used in INA § 212(h).  Rather, subsection (b)(4) says that such small time distributors shall be ‘treated as provided’ in section 844.”).

Other

CONTROLLED SUBSTANCES " FLORIDA " STRICT-LIABILITY POSSESSION STATUTE HELD UNCONSTITUTIONAL FOR LACK OF MENS REA
Shelton v. Secretary, Department of Corrections, ___ F.Supp.2d ___ (M.D. Fla. Jul. 27, 2011) (Florida conviction of delivery of a controlled substance, in violation of Fla. Stat. 893.13, is vacated; the statute of conviction is unconstitutional on its face because it allows conviction of controlled substances on the basis of strict liability, eliminating mens rea as an element of a drug offense).