Criminal Defense of Immigrants


§ 21.26 (B)

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(B)  Aggravated Felony.  For a controlled substances conviction to constitute an aggravated felony, the conviction must be a felony,[231] and must either be punishable under federal law, or fit within the definition of a “drug trafficking” offense (i.e., involve some sort of remuneration).[232]  While distribution will generally be considered an aggravated felony,[233] a conviction for distribution of a controlled substance may, in some cases, avoid these requirements.


First, a person can commit the offense of distribution, under many statutes, without intending to receive anything in return.  For example, a generous host at a party might offer a controlled substance to his guests for free.  Therefore, such a distribution statute would be divisible for purposes of the “drug trafficking” prong of the aggravated felony definition, and would not fall under the common meaning prong of the trafficking definition because there was no commercial element.[234]


Second, distribution of a small amount of marijuana, without remuneration, will not be considered an aggravated felony because it is not a felony under federal law.[235]  See § 19.59, supra.

[231] See § 21.39, infra.

[232] See § 19.56, supra.

[233] 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), is an aggravated felony for immigration purposes); United States v. Chavez-Diaz, 444 F.3d 1223 (10th Cir. Apr. 18, 2006) (Wyoming conviction for delivery of a non-narcotic controlled substance constituted an aggravated felony controlled substance offense for illegal re-entry sentencing purposes); United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. June 7, 1996), cert. denied, 520 U.S. 1105, 117 S.Ct. 1109 (1997) (Texas conviction of possession of marijuana with intent to distribute constitutes an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) for deportation purposes).

[234] See Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) (distribution without remuneration is not a “drug trafficking” offense).

[235] See United States v. Gomez-Ortiz, 62 F.Supp.2d 508 (D.R.I. Aug. 4, 1999) (Massachusetts misdemeanor conviction for first-offense possession with intent to distribute, in violation of M.G.L. 94C, § § 32C(a), 274 § , 1, did not constitute “felony,” and was therefore not “aggravated felony,” under INA § 101 (a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), for purposes of U.S.S.G. § 2L1.2(b)(1)(A) 16-level sentence enhancement for illegal re-entry).  See § 21.39, infra.




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).