Eleventh Circuit Finds that VA Drug Distribution Statute is CIMT

The Eleventh Circuit has determined that a Virginia conviction related to distribution of controlled substances is a crime involving moral turpitude. The court acknowledged that not all substances criminalized by Virginia appear in the federal statutes, but relied on the state’s determination that the substance should be criminalized as proof that distribution of the substance is base or vile. Notably, for the purpose of the appeal, the court assumed that the statute is not divisible with respect to the identity of the substance.

The full text of Daye v. Attorney General can be found here:

https://media.ca11.uscourts.gov/opinions/pub/files/202014340.pdf

First Circuit Remands Particularly Serious Crime Finding

The First Circuit has remanded a case in which the Immigration Judge concluded that the petitioner was ineligible for withholding of removal due to a drug trafficking conviction without analyzing whether the presumption arising in Matter of Y-L- had been rebutted. In addition, the petitioner argued that the Y-L- is effectively treated as a conclusion that all drug trafficking convictions are particularly serious crimes, as opposed to a rebuttable presumption. The court noted that the government had not presented a single case in which the agency found someone had rebutted the presumption, and thus, indicated the government could supplement the record on remand with any cases in which the agency found the presumption had been rebutted.

The full text of Decarvalho v. Garland can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1711P-01A.pdf

Eighth Circuit Finds that Mental Health is not Relevant in Drug Trafficking PSC Analysis unless Presumption of PSC is Overcome

The Eighth Circuit has determined that the agency need not consider an applicant’s mental health in its particularly serious crime analysis when invoking the presumption in Matter of Y-L- that drug trafficking crimes are particularly serious crimes, unless the applicant first overcomes that presumption.

The full text of Gilbertson v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/08/202355P.pdf

First Circuit Finds that MA Drug Possession with Intent to Distribute Conviction is Aggravated Felony

The First Circuit has rejected a claim that a Massachusetts conviction fo possession with intent to distribute is not an aggravated felony because the mens rea for accomplice liability differs under state law from federal law. The court found no realistic probability that a defendant could satisfy the state mens rea standard but not the federal mens rea standard.

The full text of Soto-Vittini v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/19-1372P-01A.pdf

Ninth Circuit Finds that OR Conviction for Manufacture or Delivery of Marijuana is Divisible

The Ninth Circuit has determined that an Oregon conviction for manufacturing or delivering marijuana is divisible between delivery and manufacture. Applying the modified categorical approach, the court determined that the petitioner was convicted of manufacturing marijuana, a felony offense under the Controlled Substance Act (CSA). The court recognized that delivery of marijuana would not be an aggravated felony because Oregon delivery offenses include solicitation offenses, which are not criminalized in the CSA.

The full text of Dominguez v. Barr can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/21/18-72731.pdf

Second Circuit finds that AZ Drug Statute is Overbroad and Indivisible

The Second Circuit has determined that an Arizona statute criminalizing transportation, importation, and sale of a controlled substance is overbroad because it criminalizes substances not found in the Controlled Substances Act. In addition, the statute is indivisible with respect to the substances criminalized. As such, the conviction does not qualify as a drug trafficking conviction for federal sentencing purposes.

The full text of United States v. Guerrero can be found here:

http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/doc/17-1851_op.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/86c00b11-2114-456d-81ea-09598328cca8/20/hilite/

Third Circuit Examines New Jersey Drug Trafficking Convictions

The Third Circuit has determined that a New Jersey convictions for possessing cocaine with intent to distribute, distributing cocaine, and conspiring to possess cocaine with intent to distribute all qualify as drug trafficking aggravated felonies. In so doing, the court held that New Jersey attempt law is coextensive with federal law in that both require a substantial step that strongly corroborates the actor’s criminal purpose, and both hold that solicitation can count as a substantial step. The court recognized that its decision created a circuit split with the Ninth Circuit on the definition of attempt under the Controlled Substances Act.

The full text of Martinez v. Attorney General can be found here:

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1827&context=thirdcircuit_2018

Fourth Circuit find that TN Drug Conviction is CIMT and Aggravated Felony

The Fourth Circuit has determined that a Tennessee conviction for manufacturing, delivering, selling, or possessing with intent to manufacture, deliver, or sell a controlled substance is both a crime involving moral turpitude and a drug trafficking aggravated felony.  With respect to the aggravated felony ground, the Court found the statute to be overbroad because it criminalizes possession with intent to deliver one half-ounce, or approximately 14 grams, of marijuana and does not include any reference to remuneration.  Such conduct is punishable as a misdemeanor under federal law.  

However, the Court found the statute to be divisible because each subsection provides for a different punishment depending on the quantity and type of drug involved.  Examining the record of conviction, the Court determined that the petitioner was convicted of possession with intent to sell more than 4,000 grams of marijuana.  

In addition, because the statute requires a mens rea (knowingly) and involves reprehensible conduct (drug trafficking), it also qualifies as a crime involving moral turpitude (CIMT).

Finally, the Court deferred to the Board of Immigration Appeals (BIA) in Matter of Balderas.  In Balderas, the BIA considered whether a CIMT that has been used as part of the basis for a "two or more CIMTs” charge of removability in an immigration proceeding that terminated with a § 212(c) waiver may later be used as part of the basis for a “two or more CIMTs” charge of removability if the petitioner in question commits another CIMT after the first immigration proceeding was terminated. The BIA held that such a previously found CIMT could be used with a new CIMT to support a charge of removability because a grant of section 212(c) relief waives the finding of excludability or deportability rather than the basis of the excludability itself."  Thus, because the petitioner was also convicted of a CIMT in 2000, a waiver of the 1995 CIMT under 212c would not prevent a finding that the petitioner was removable for two CIMTs.

The full text of Guevara-Solorazano v. Sessions can be found here:

http://www.ca4.uscourts.gov/Opinions/162434.P.pdf

BIA Clarifies Drug Trafficking Aggravated Felony Analysis

The Board of Immigration Appeals has determined that when analyzing whether the conduct criminalized by a state statute would be punishable as a felony under federal law, the adjudicator is not limited to examining the federal law that is most closely analogous to the state statute at issue.  In the instant matter, Rosa was convicted of selling a controlled substance within 1000 feet of a school in New Jersey in violation of N.J. Stat. Ann. § 2C:35-7.  The New Jersey statute criminalized dispensing or distributing drugs, while the federal statute (21 U.S.C. § 860(a)) criminalizing drug activities near a school did not include dispensing drugs.  However, all of the conduct criminalized by the New Jersey statute was included in a different federal statute (21 U.S.C. § 841(a)) which criminalized distributing or dispensing a controlled substance, without reference to the location of a school.  Thus, the New Jersey conviction qualifies as a drug trafficking aggravated felony.

The full text of Matter of Rosa can be found here:

https://www.justice.gov/eoir/page/file/1043471/download

Eleventh Circuit Finds that FL Conviction for Sale of Cocaine is Aggravated Felony

At issue in this appeal was the petitioner's 2006 conviction under Fla. Stat. § 893.13(1)(a)(1). Both parties agreed that, of the six discrete alternative elements outlined in § 893.13(1)(a)(1), the “sale” element formed the basis of the petitioner's conviction.  The Court agreed with the Board of Immigration Appeals' determination in Matter of L-G-H- that the illicit trafficking definition of a drug trafficking aggravated felony does not require knowledge of the illicit nature of the substance trafficked.  Accordingly, the petitioner's conviction qualified as an aggravated felony.

The full text of Choizilme v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513845.pdf

Eleventh Circuit Finds that Florida Drug Trafficking Conviction is not an Aggravated Felony

The petitioner was convicted of violating Fla. Stat. § 893.135(1)(b)1.c, which makes it unlawful to sell, purchase, manufacture, deliver, or bring cocaine into Florida or to knowingly possess cocaine.  The Court recognized that it had determined in Cintron v. U.S. Attorney held that Fla. Stat. § 893.135(1)(c) is neither divisible nor a categorical match to a federal crime in the CSA.  Given the nearly identical language in the two statutes, Cintron controlled the outcome of the instant case.

The full text of Ulloa Francisco v. Attorney General can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201513223.pdf

Ninth Circuit Finds that CA Drug Trafficking Conviction is an Aggravated Felony

The Ninth Circuit has determined that a conviction for possession for sale of methamphetamine under section 11378 of the California Health and Safety Code (CHSC) is a drug trafficking aggravated felony.  There are two definitions of a drug trafficking aggravated felony.  First, under the phrase “illicit trafficking in a controlled substance,” a state drug crime is an aggravated felony “if it contains a trafficking element.” Second, under the phrase “including a drug trafficking crime (as defined in section 924(c) of Title 18),” a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws. 

The petitioner argued that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking.  Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law.  Under federal law, the defendant cannot be mistaken about the nature of the substance he is trafficking.  The petitioner argued that because of this mismatch, his conviction does not qualify under the second definition of a drug trafficking aggravated felony.

The court declined to address the petitioner's argument, finding that he trafficked a substance controlled under federal law, and thus, his conviction fell within the first definition of a drug trafficking aggravated felony.  "To the extent 'illicit trafficking' in route one incorporates a mens rea requirement, section 11378 suffices because it  requires that the defendant intend to possess for sale a controlled substance and actually possess for sale a controlled substance, and that both the intended substance and the actual substance be controlled.  This is, in fact, the same mens rea required under federal law."

The full text of United States v. Verduzco-Rangel can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/03/09/15-50559.pdf

Ninth Circuit Finds that Washington Definition of Aiding and Abetting is Broader than Federal Definition

The Ninth Circuit has determined that a Washington drug trafficking conviction is not an aggravated felony.

The court observed that "the implicit nature of aiding and abetting liability in every criminal charge is well-settled."  Further, federal law requires a mens rea of specific intent for conviction for aiding and abetting, whereas Washington requires merely knowledge.  "Therefore, the Washington drug trafficking law on its face appears to have a more inclusive mens rea requirement for accomplice liability than its federal analogue."  Because a jury need not distinguish between principals and accomplices, the drug trafficking statute is not divisible so far as the distinction between those roles is concerned, so the modified categorical approach may not be applied.

The court noted that "the government makes a pragmatic argument that, under Valdivia-Flores’s proposed application of the categorical approach, 'no Washington state conviction can serve as an aggravated felony at all because of [the] accomplice liability statute' and that such a result 'cannot have been Congress’s intent.' The government here merely joins a chorus of those who have raised concerns about [the] line of decisions' applying the categorical approach, '[b]ut whether for good or for ill, the elements-based approach remains the law.'”  Thus, it would seem that the Ninth Circuit may have implicitly conceded that no Washington state convictions can qualify as an aggravated felonies.  

The full text of US v. Valdivia-Flores can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/15-50384.pdf

Ninth Circuit finds that Oregon Delivery of a Controlled Substance Statute is Indivisible

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is overbroad and indivisible with respect to the definition of an aggravated felony because it criminalizes solicitation offenses.  

The full text of Sandoval v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/13-71784.pdf

Eleventh Circuit Finds that Florida Conviction for Delivery of Cannabis is not an Aggravated Felony

The Eleventh Circuit has determined that a Florida conviction for delivery of cannabis is not a drug trafficking aggravated felony because it does not require that the person receive any consideration for the delivery.

The full text of Gordon v. Attorney General can be found here: 

http://media.ca11.uscourts.gov/opinions/pub/files/201513846.pdf

Fifth Circuit Finds that AZ Drug Statute is Divisible

The Fifth Circuit has determined that Arizona Revised Statute Section 13-3405(A)(4), which criminalizes sale, transportation, importation, transfer and offers to transport for sale, import, sell, or transfer of marijuana, is divisible.  The court noted that Arizona state courts are divided on whether the "offer to" offenses - known as solicitation offenses - were distinct from the other offenses, or were merely alternative means committing these offenses.  The court took a "peak" at the petitioner's record of conviction, and noted that the indictment charged all of these provisions, but his plea document and judgment listed only “attempted transportation of marijuana for sale.”  This, the court concluded, indicated a divisible statute.  "When the relevant documents use one alternative term to the exclusion of all others, that indicates that the terms within the statute are individual elements."  The court also note that there are separate pattern instructions for transport for sale and offer to transport for sale, reinforcing that these are distinct offenses.

The full text of Ibanez-Beltran v. Lynch can be found here:
http://www.ca5.uscourts.gov/opinions/pub/15/15-60183-CV0.pdf

Ninth Circuit Finds that Oregon Conviction for Delivery of a Controlled Substance is not an Aggravated Felony

The Ninth Circuit has determined that an Oregon conviction for delivery of a controlled substance is not an aggravated felony.  A drug-related offense will constitute an aggravated felony if it matches the definition of a drug trafficking crime (which are any crimes that would be punishable as felonies under the Controlled Substances Act) or an illicit trafficking offense (which requires a commercial dealing to underpin the conviction).  The Oregon statute criminalizes mere solicitation, or an offer to deliver a controlled substance.  The Controlled Substance Act does not include solicitation offenses, and thus, the Oregon statute does not match the definition of a drug trafficking crime.  In addition, there is no commercial dealing required by the statute, and thus, it does not match the definition of an illicit trafficking offense.  Finally, because the definition of attempt within the statute is indivisible with respect to solicitation offenses, the modified categorical approach should not be employed.

The full text of Sandoval v. Yates can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/27/13-71784.pdf

Fifth Circuit Finds that an Arizona Conviction for Attempted Transportation for Sale of Marijuana is an Aggravated Felony

In an unpublished decision, the Fifth Circuit determined that Arizona Revised Statute Section 13-3405(A)(4) (attempted transportation for sale of marijuana) is a divisible statute, laying out separate offenses for solicitation to transport for sale and transport for sale of marijuana.  The court recognized that Arizona state case law on this issue was conflicting, but determined that because the charging document listed only transportation for sale, this narrowing language indicated that transportation for sale is a distinct offense from offer to transport for sale.  The court also looked at the pattern jury instructions, which contained different instructions for transportation for sale and offering for sale.  Thus, the court concluded the statute was divisible.

The full text of Ibanez-Beltran v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/unpub/15/15-60183.0.pdf

Fifth Circuit Find Arkansas Drug Conviction to be an Aggravated Felony

The Fifth Circuit addressed the question of whether a conviction for reckless possession with intent to deliver marijuana qualified as an illicit trafficking in a controlled substance aggravated felony.  Noting that delivery in Arkansas requires remuneration, the Court deemed the conviction to be an aggravated felony, distinguishable from the Georgia statute at issue in Moncrieffe v. Holder.

The full text of Flores-Larrazola v. Lynch can be found here:

http://www.ca5.uscourts.gov/opinions/pub/14/14-60888-CV0.pdf

Tenth Circuit Affirms Legality of Final Administrative Order of Removal Process

The Tenth Circuit has determined that the administrative removal process for non-lawful permanent residents convicted of aggravated felonies is legal.  The court also determined that a federal felony conviction for possession with intent to distribute marijuana is an aggravated felony.

The full text of Osuna-Gutierrez v. Johnson can be found here:

https://www.ca10.uscourts.gov/opinions/14/14-9593.pdf