Criminal Defense of Immigrants

(B)  Aggravated Felony.  Manufacture or cultivation of a controlled substance is punished as a felony under federal law.[243]  Thus, even without a trafficking element, a conviction of manufacturing or cultivating a controlled substance will be considered an aggravated felony.

However, while the federal statutes require that the offense occurred knowingly or intentionally, some state laws have no intent requirement.  On this basis, counsel may argue that the elements of the state offense are not punishable under the federal controlled substance statutes.  Since it is possible to manufacture drugs for personal use,[244] the elements of the statute also may not establish the commercial element necessary to qualify the offense as an aggravated felony under the common-sense trafficking prong of the definition.[245] 

[243] See, e.g., 21 U.S.C. § 841.

[244] But see Garcia v. Attorney General, 462 F.3d 287 (3d Cir. Sept. 5, 2006) (manufacturing is not necessarily drug trafficking because it may be for personal use).

[245] See § 19.56, supra.