Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " SALE OF MARIJUANA
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (New York misdemeanor conviction for fourth-degree criminal sale of marijuana, in violation of Penal Law 221.40, is a divisible statute [to sell, exchange, give or dispose of to another], only sale of which categorically falls within the hypothetical federal felony test of drug trafficking crimes that qualify as aggravated felonies INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B); record of conviction did not establish that sale with consideration was involved; police reports were not part of the record of conviction, even where defendant waived information).

Fifth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " DELIVERY OF COCAINE
Sarmientos v. Holder, 742 F.3d 624 (5th Cir. Feb. 12, 2014) (Florida conviction of delivery of cocaine, in violation of Florida Statute 893.13(1)(a)(1)(sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance), is not a categorical aggravated felony drug trafficking offense, since Florida statute does not require knowledge of the illicit nature of the controlled substance, while federal offense requires knowledge of the illicit nature of the substance); see State v. Adkins, 96 So.3d 412, 415"16 (Fla. 2012) (explaining that knowledge of the illicit nature of the controlled substance is no longer an element of the Florida crime that the prosecution must prove beyond a reasonable doubt).

AGGRAVATED FELONY " DRUG TRAFFICKING " MANUFACTURING
United States v. Reyes-Mendoza, ___ F.3d ___ (5th Cir. Dec. 15, 2011) (California conviction of manufacturing a controlled substance, in violation of Health & Safety Code 11379.6, is not categorically a drug trafficking offense, under USSG 2L1.2 (which includes an offense under . . . state . . . law that prohibits the manufacture . . . of a controlled substance), because the word manufacture has been interpreted more broadly under California law than under the federal Sentencing Guidelines, and there are some acts that would violate Health & Safety Code 11379.6 without qualifying as drug trafficking offenses for purposes of USSG 2L1.2); see United States v. Arizaga-Acosta, 436 F.3d 506, 508 (5th Cir. 2006) (possession of a precursor chemical with intent to manufacture a controlled substance was not a drug trafficking offense for purposes of USSG 2L1.2, and was not substantially equivalent to attempted manufacture of a controlled substance.); United States v. Forester, 836 F.2d 856, 859-61 (5th Cir. 1988) (defendant could not be sentenced for both production of a precursor with intent to manufacture a controlled substance and the attempted manufacture of a controlled substance).

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (Texas conviction for delivery of controlled substance, in violation of Texas Health and Safety Code 481.112, was not a "drug trafficking offense" within meaning of USSG 16-level enhancement for illegal reentry after deportation, under USSG 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense; Tex. Health & Safety Code 481.002(8) defines "deliver" as "transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia," which is broader than the sentencing definition, which does not include solicitation).

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal. Health & Safety Code 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under USSG 2L1.2(b)(1)(A)(i) (2003), for illegal reentry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SALE - CALIFORNIA SALE STATUTE IS OVERINCLUSIVE, INCLUDING BOTH OFFENSES THAT WOULD, AND OTHERS THAT WOULD NOT, TRIGGER THE GUIDELINES SENTENCE ENHANCEMENT
United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), is overinclusive and includes both drug trafficking offenses that properly trigger 16-level sentence enhancement for illegal reentry after deportation under USSG 2L1.2(b)(1)(A)(i) (Nov. 2005), and other offenses that do not).

Ninth Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES " POSSESSION FOR SALE CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CALIFORNIA POSSESSION FOR SALE
Padilla-Martinez v. Holder, ___ F.3d ___, ___, n.3, 2014 WL 5421219 (9th Cir. Oct. 27, 2014) (California conviction of possession for sale of a controlled substance, in violation of Health and Safety Code 11378, qualified as an aggravated felony for deportation purposes, since state law required jury to identify specific controlled substance as an element of the offense, and thus the modified categorical analysis was properly used to consult the record of conviction, which identified federally listed substance). The court stated: California Health & Safety Code 11378 is divisible for several reasons. First, it is written in the disjunctive by listing five alternative categories of controlled substances. See Quijada Coronado v. Holder, 747 F.3d 662, 668"69 (9th Cir.2014) (concluding that California Health & Safety Code 11377(a), a statute substantially similar to 11378, is divisible). Also, California state law treats the type of controlled substance as a separate element in prosecuting relevant drug offenses. See, e.g., 2 Witkin & Epstein, Cal.Crim. Law (4th ed.2012) 102 (a specified controlled substance is an element common to all state drug crimes requiring proof of possession); CALCRIM 2302 (Judicial Council of California Criminal Jury Instruction for conviction under 11378 requires the jury to fill in the blank where the controlled substance is to be identified); People v. Montero, 155 Cal.App.4th 1170, 66 Cal.Rptr.3d 668, 671 (Cal.Ct.App.2007) (adopting the CALCRIM jury instruction); see also People v. Gerber, 196 Cal.App.4th 368, 126 Cal.Rptr.3d 688, 704 (Cal.Ct.App.2011) (finding instructional error where jury instructions for conviction of a California drug crime did not require the jury to identify the type of controlled substance). Id. at ___, n.3.

CONTROLLED SUBSTANCES " ATTEMPTED PROMOTING DANGEROUS DRUG NOT REMOVABLE " PAULUS DEFENSE " UNLISTED DRUG
Ragasa v. Holder, ___ F.3d ___, ___, 2014 WL 1661491 (9th Cir. Apr. 28, 2014) (Hawaii conviction for promotion of a dangerous drug, in violation of HRS 705"500(1)(b), 712"1241(1)(b)(ii), is not categorically a controlled substances offense; Ragasa is not categorically removable under Section 237(a)(2)(B)(i) of the INA because his statute of conviction criminalizes at least two substances that are not similarly proscribed by the CSA: benzylfentanyl and thenylfentanyl. Compare Haw.Rev.Stat. 329"14(b)(56) & (57) (2003); Haw.Rev.Stat. 712"1240 (2004); Haw.Rev.Stat. 712"1241(1)(b)(ii) (2006), with 21 U.S.C. 812; 21 C.F.R. 1308.11"15.).

CONTROLLED SUBSTANCES " UNLISTED SUBSTANCES AGGRAVATED FELONIES " DRUG TRAFFICKING OFFENSES
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (Health & S C 11377(a) is not categorically a conviction relating to a federally-listed controlled substance, for purposes of inadmissibility, because it includes at least one substance that is not on the federal list). NOTE: The court found that Health & Safety Code punishes offenses involving "khat (Catha Edulis) and Chorionic gonadotropin (HGC), which are not listed in the federal schedules. See 21 C.F.R. 1308.13 (Schedule III of the CSA).

DRUG TRAFFICKING - TRANSPORTATION DOES NOT CONSTITUTE DRUG TRAFFICKING CONVICTION
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. Aug. 1, 2006) (California conviction of transportation of methamphetamines, in violation of Health & Safety Code 11379(a), did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal reentry sentence under USSG 2L1.2(b)(1)(B), because transportation can be committed for personal use only, and there is no commercial element to the conviction), following United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004), and United States v. Rivera-Sanchez, 247 F.3d 905, 908-909 (9th Cir. 2001).

Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.

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).

Other

ARTICLE -- POST CON RELIEF - STATE REHABILITATIVE RELIEF - NINTH CIRCUIT - ARGUMENTS CALIFORNIA DEFERRED ENTRY OF JUDGMENT DOES NOT FALL WITHIN CHAVEZ-PEREZ
      Under Lujan-Armendariz, is a noncitizen protected from deportation based on a conviction during the time he or she waits to be able to withdraw the plea pursuant to state rehabilitative relief? The Ninth Circuit observed in Lujan-Armendariz that the history and purpose of the FFOA strongly suggests that the person should be protected during this period. However, the majority in the panel opinion in Chavez-Perez v. Ashcroft held that under the Oregon expungement statute at issue, a conviction that would have qualified for Lujan-Armendariz treatment once it was expunged continued to exist for immigration purposes until the expungement was granted. Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir. 2004). Mr. Chavez-Perez was a first-time possession offender who was brought into removal proceedings when he still had a few years of probation to complete before he would be able to expunge his conviction. The majority ordered his removal, despite the fact that, once granted, the expungement would have eliminated the conviction for immigration purposes. The majority stated that it was ruling only on the type of expungement statute at issue in the case, in which relief after completion of probation is granted as a matter of discretion by the convicting court and is not mandated by the court at the time of plea. (See Or. Rev. Stat. 137.225(1)(a), (3).) The opinion left open the possibility that Lujan-Armendariz protection will apply pending dismissal of charges in the case of a deferred adjudication, or other disposition where a court orders that charges will be dismissed upon completion of probation.

     Strategy. The only guarantee to obtaining effective Lujan-Armendariz protection is to secure rehabilitative relief that eliminates the conviction before a removal order has become final. If this does not happen, defense strategy will depend upon the type of state rehabilitative relief that is potentially available. Under Chavez-Perez, protection is not afforded by an expungement, set-aside or vacatur, like that set out in Ore. Rev. Stat. 137.225, where judgment was imposed and could be subsequently eliminated as a matter of discretion under a separate general expungement statute. In contrast, advocates have a strong argument, although no on-point authority, that a disposition in a deferred adjudication, or pursuant to a statute where automatic dismissal after completion of probation is contemplated at the time of conviction, is not a conviction for immigration purposes during the waiting period. See discussion in the dissent in Chavez-Perez.

     Immigration counsel should try to distinguish the state vacatur statute at issue from Ore. Rev. Stat. 137.225(a)(1), (a)(5), or contest the holding in Chavez-Perez. During this litigation, if the expungement becomes available counsel should obtain it, and obtain remand and reopening if possible. Criminal defense counsel may be able to create a record that assists in this argument by adding language to the criminal disposition that strengthens the expectation that compliance with conditions of probation "will" or "shall" result in dismissal e.g., an agreement that such a motion will be unopposed.

     Analyzing state statutes. Counsel should examine the state statute at issue to determine whether it falls within Chavez-Perez, and to identify arguments that it does not. Chavez-Perez ruled on an order granted under Ore. Rev. Stat. 137.225(1)(a), (3), which allows for the record of conviction to be set aside after completion of three years probation. Section 137.225 is a generic statute, separate from the conviction procedure, which permits any defendant with a conviction within various classes to apply to the court to set aside the conviction. ORS 137.225(1)(a), (5). The dismissal is not mandatory: the court may consider evidence and testimony and decide if a set-aside is warranted. ORS 137.225(3).

     To take California statutes as an example, a deferred entry of judgment under Calif. PC 1000 clearly does not come within the Chavez-Perez ruling. Relief is mandatory: California Penal Code 1000.3 provides that upon successful completion of probation, the court "will" dismiss the charges. Although a guilty plea is taken, the statute explicitly provides that there never is a conviction for state purposes as long as the defendant successfully completes probation.

     Several states have programs that provide for automatic drug counseling and probation rather than jail for first-time offenders. Counsel should check the particular state statute to determine whether it contains language mandating dismissal of the case upon successful completion of probation. This is the case with the "Prop 36" drug counseling program in California under Calif. Penal Code 1210, which provides that, if a nonviolent drug possession offender complies with mandatory treatment and probation, the conviction "shall" be set aside, and the indictment "shall" be dismissed. This dismissal of the charge against a person sentenced under 1210.1 is anticipated at time of judgment and sentencing. The government may argue that 1210.1 should be controlled by Chavez-Perez since the disposition is termed a "conviction." However, Chavez-Perez turned on the requirement that there be a legal order mandating the dismissal of charges following probation, which here is provided in the section under which the plea is taken.

     Where possible, criminal defense counsel should obtain an order from the court at plea acknowledging that the plea and charges will be withdrawn upon successful completion of probation under the applicable section. Where that did not happen, however, these dispositions should still meet this Chavez-Perez requirement. A statutory mandate that a guilty plea taken under the section "will" be withdrawn upon completion of probation should be held to be at least the legal equivalent of a court order to that effect.

In California, Penal Code 1203.4 is a general expungement statute. The government will assert that 1203.4 comes within Chavez-Perez because, like the Oregon statute at issue there, 1203.4 can apply to a variety of offenses and is not incorporated into the section under which the defendant pleads guilty to simple possession. Unlike the Oregon statute, however, PC 1203.4 provides automatic, not discretionary, relief: it provides that a court must dismiss a plea to a qualifying offense if probation is successfully completed. Although the withdrawal of plea is not incorporated into the section under which the defendant pleads guilty, as it is in Calif. Penal Code 1000 and 1210.1, supra, California law still provides, from the moment of plea to a qualifying offense, that the defendant is automatically entitled to expungement upon completion of probation. In contrast, under Or. Rev. Stat. 137.225(3) the court may decide to grant the order if it determines that circumstances warrant; see also Wash. Rev. Code 9.94A.640 or 9.96.060, providing that the court may grant relief.

     Even if 1203.4 were held to come within the Chavez-Perez bar, it still could present a defense advantage in a situation where counsel was able to bargain for a short period of probation at sentencing, or to close probation early, so that an expungement could be obtained quickly. Then the noncitizen will have the sure protection of actually having the expungement, rather than merely having a strong argument that, e.g., a deferred entry of judgment ought not to be considered a conviction during the mandated probationary period before the plea will be withdrawn.

     The best possible option to protect a noncitizen defendant from exposure to removal is an informal or formal arrangement for a deferred prosecution, where the case is continued while the defendant fulfills certain conditions, with the understanding that the prosecution will consider dropping the charges based on good performance. Then there never is a conviction.