DRUG TRAFFICKING - TRANSPORTATION OF DRUGS
TRANSPORTATION OF DRUGS - DRUG TRAFFICKING
Saleres v. INS, 2001 WL 1526405 (9th Cir. Nov. 30, 2001)(unpublished decision holding a conviction for transportation of marijuana under California Health & Safety Code § 11360 is not an aggravated felony because it can be committed for personal use).
AGGRAVATED FELONY - FAILURE TO APPEAR - TO ANSWER CHARGE FOR WHICH SENTENCE OF TWO YEARS OR MORE MAY BE IMPOSED -- MAXIMUM THAT MAY BE IMPOSED IS ARGUABLY LIMITED BY BLAKELY TO THE MAXIMUM THAT COULD BE JUSTIFIED BY THE ELEMENTS OF THE STATUTE AND ADMISSI
The maximum sentence that "may be imposed" for a conviction is the standard maximum referred to by the United States Supreme Court, in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), which held it violates the constitutional right to trial by jury to sentence a defendant on the basis of facts that were not included in the elements of the offense nor admitted factually by the defendant at plea or sentencing. Blakely applies to immigration cases because the United States Constitution prohibits a sentence greater than allowed by the rule of that case.
FAILURE TO APPEAR - SENTENCING - CONTINUING OFFENSE
United States v. Camacho, ___F.3d___ (9th Cir. August 15, 2003) (failure to appear is a continuing offense as long as the defendant remains at large. As defendant was captured after the sentencing guidelines became effective, the district court erred by failing to sentence defendant under the U.S.S.G. following his guilty plea to one count of failure to appear, in violation of 18 U.S.C. 3146).
http://caselaw.lp.findlaw.com/data2/circs/9th/0250447p.pdf
AGGRAVATED FELONY - FAILURE TO APPEAR
The language in INA § 101(a)(43)(T), 8 U.S.C. § 1101(a)(43)(T), "an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years' imprisonment or more may be imposed," might have two different meanings: (a) the person has been convicted of a Failure To Appear (FTA) offense for which a sentence of two years' imprisonment or more may be imposed; or
FIREARMS - ATTEMPT - SENTENCING GUIDELINES
United States v. Sarbia, 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada state court conviction of attempting to discharge firearm at occupied structure properly deemed a "crime of violence" for sentencing purposes under U.S.S.G. 4B1.2).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310276p.pdf
AGGRAVATED FELONY - DRUG TRAFFICKING - CALIFORNIA DRUG TRAFFICKING STATUTE IS DIVISIBLE
United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).
DRUG TRAFFICKING - POSSESSION OF A CONTROLLED SUBSTANCE
Second Circuit leaves open question of whether 2nd drug possession offense constitutes "Aggravated Felony" See article by Manuel D. Vargas of NYSDAs Immigrant Defense Project (IDP), here: Immigration Practice TipsJan.-Feb. 2005
SAFE HAVEN - OFFER TO TRANSPORT - LIMITATION TO NINTH CIRCUIT
A plea to "offering to transport" a controlled substance is not an immigration safe plea outside the Ninth Circuit. See, Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992). A person pleading guilty to a California offer to transport offense today could: 1. move to another state; 2. travel outside the country and returns at a non-9th Circuit port of entry; 3. continue to live within the 9th Circuit, but get detained outside the 9th circuit. If any of the above were to take place, there would be problems.
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF HEROIN - STATE CONVICTION OF POSSESSION OF HEROIN HELD NOT TO BE AN AGGRAVATED FELONY FOR IMMIGRATION PURPOSES UNDER THE "HYPOTHETICAL FEDERAL FELONY" TEST, SINCE IT WOULD HAVE BEEN ONLY A MIS
Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code 2925.11, a "fifth degree felony" under Ohio law, which is punishable by a maximum term of 12 months imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)) (alternative holding).
AGGRAVATED FELONY - DRUG TRAFFICKING - POSSESSION OF HEROIN - STATE CONVICTION OF POSSESSION OF HEROIN HELD NOT TO BE AN AGGRAVATED FELONY, EVEN THOUGH LABELLED AS A FELONY UNDER STATE LAW, SINCE THE MAXIMUM IMPRISONMENT WAS ONLY ONE YEAR, WHICH DOES NOT
Liao v. Rabbett, 398 F.3d 389 (6th Cir. Feb. 7, 2005) (Ohio conviction of possession of heroin, in violation of Ohio Rev. Code 2925.11, a "fifth degree felony" under Ohio law, which is punishable by a maximum term of 12 months imprisonment, did not constitute an aggravated felony drug trafficking offense, under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B)) (alternative holding).
