CONTROLLED SUBSTANCES - DIVISIBLE STATUTE - PAULUS DEFENSE - CALIFORNIA CONTROLLED SUBSTANCES LIST
Controlled Substances on the California schedules that do NOT appear to be on the federal schedules:
AGGRAVATED FELONY - DRUG TRAFFICKING - GUIDELINES
United States v. Benitez-Perez, 367 F.3d 1200 (9th Cir. May 20, 2004) (Nevada conviction for a violation of NRS 453.337.1, which provides that "it is unlawful for a person to possess for the purpose of sale . . . any controlled substance classified in schedule I or II" constitutes a drug trafficking offense as defined by USSG 2L1.2 for purposes of imposing a 16-level enhancement to the sentence for illegal reentry, because the statute does not reach conduct outside of the Guidelines definition of a drug-trafficking offense).
http://caselaw.lp.findlaw.com/data2/circs/9th/0310419p.pdf
ILLICIT TRAFFICKING - MISDEMEANOR SALE
Singh v. Ashcroft, (Not Reported in F.Supp.2d), 2003 WL 1873624 (E.D.N.Y. April 11, 2003) (New York misdemeanor conviction of criminal sale of marijuana in the fourth degree, in violation of New York Penal Law § 221.40, does not constitute an illicit trafficking aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), because it is a misdemeanor).
AGGRAVATED FELONY - DRUG TRAFFICKING - MISDEMEANOR STATE CONVICTION FOR SALE OF A CONTROLLED SUBSTANCE CONSTITUTED AN AGGRAVATED FELONY UNDER 8 U.S.C. § 1101(a)(43)(B) WHERE IT COULD HAVE BEEN A FELONY UNDER FEDERAL LAW
Copeland v. Ashcroft, 246 F.Supp.2d 183 (W.D.N.Y. February 10, 2003).
AGGRAVATED FELONY - DRUG TRAFFICKING - PURCHASE FOR SALE
United States v. Palacios-Quinonez, __ F.3d __, 2005 WL 3214173 (5th Cir. Dec. 1, 2005) (purchase for sale, in violation of California Penal Code 11351, equals constructive possession, and therefore qualifies as a drug trafficking offense under 2L1.2(b)(1)(A)(i)).
CRIME OF VIOLENCE - BATTERY
United States v. Belless, 338 F.3d 1063 (9th Cir. August 11, 2003) (domestic relationship not a required element in order for Wyoming battery conviction to serve as a predicate offense under the 18 U.S.C. 921(a)(33)(A) firearm statute's definition of a crime of domestic violence. However, as the battery statue encompasses less violent behavior than the requisite use or attempted use of physical force, the statute does not qualify as a predicate offense for that purpose).
CRIME OF VIOLENCE - WASHINGTON THIRD DEGREE ASSAULT IN VIOLATION OF COURT ORDER
United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington 26.50.110(4) may fail to trigger a 16-level illegal reentry sentence enhancement, as a crime of violence under U.S.S.G. 2L1.2 (2001), because the offense might only have been a misdemeanor punishable by a maximum of one year imprisonment)
To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/data2/circs/9th/0210353p.pdf
CRIME OF VIOLENCE - WASHINGTON THIRD DEGREE ASSAULT IN VIOLATION OF COURT ORDER
United States v. Pimental-Flores, 339 F.3d 959 (9th Cir. August 11, 2003) (Washington conviction of third degree assault in violation of court order, under Rev. Code of Washington 26.50.110(4) may fail to trigger a 16-level illegal reentry sentence enhancement, as a crime of violence under U.S.S.G. 2L1.2 (2001), because the statute proscribes merely negligent assault).
CRIME OF VIOLENCE - CARNAL KNOWLEDGE OF CHILD 13-15
United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. August 4, 2003) (Virginia conviction of carnal knowledge of a child between 13 and 15 years of age, in violation of under Virginia Code 18.2-63, constituted a "crime of violence" under U.S.S.G. 2L1.2 (2002). Although the offense does not have as an element the use, attempted use, or threatened use of physical force, the offense falls within the second part of the "crime of violence" definition under U.S.S.G. 2L1.2, cmt n.1(B)(II), which includes sexual abuse of a minor).
CRIME OF VIOLENCE - CARNAL KNOWLEDGE OF CHILD 13-15
United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. August 4, 2003) (Virginia conviction, for carnal knowledge of a child between 13 and 15 years of age, is a "crime of violence" under U.S.S.G. 2L1.2).
http://caselaw.lp.findlaw.com/data2/circs/9th/0210071p.pdf