In cases charging sales and possession for sale of a controlled substance, defense counsel should consider pleading to a single count of Health & Safety Code 11352(a), under People v. Palmer, 58 Cal.4th 110 (2013), without identifying any particular factual basis. The specific offense for the plea should be that the defendant "offered to sell" an unidentified controlled substance in violation of 11352(a), striking any reference to a specific substance in the charge, making sure that the charge contains all the statutory alternatives. A sentence of less than 180 days is desirable.

This plea should prevent an aggravated felony finding under 8 U.S.C. 1101(a)(43)(B) (drug trafficking offense). See United States v. Garza"Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (the federal term drug trafficking offense does not include transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance) (emphasis supplied); accord U.S. v. Ramirez-Macias, 2013 WL 4723453, at *2 (E.D.Wash. 2013). Note that in 2002, Health & Safety Code 11352 criminalized transport for personal use (which it no longer does). See also Young v. Holder, 697 F.3d 976, 983 (9th Circ.2012) ("Section 11352(a), however, criminalizes the mere solicitation of, or offer to sell, a controlled substance, which is not an aggravated felony, Leyva"Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999), as well as the sale of cocaine, which is one"), overruled on other grounds Almanza-Arenas v. Holder, 771 F.3d 1184, 1194 (9th Circ.2014), decision vacated pending en banc review, Almanza-Arenas v. Lynch, 785 F.3d 366, 367 (9th Cir. 2015).

This conviction should not be an inadmissible controlled substance conviction, or crime of moral turpitude, since the minimum conduct analysis of Moncrieffe applies in the context of inadmissibility. The underlying conduct may establish a reason to believe ground of inadmissibility under INA 212(a)(2)(C)(i).