Bibi Alli & Matthew Blaisdell

In our previous post we examined the highly abstract concept, known as the categorical analysis, used to determine how immigration consequences may be triggered by criminal convictions.  In this post we’ll see how that played out in a recent case. Our client was convicted of violating Virginia code section 18.2–248.1, “Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.” On that basis, DHS charged him as having been convicted of an aggravated felony: specifically, a drug trafficking crime pursuant to sections 237 (a)(2)(A)(iii) & 101(a)(43)(B) of the Immigration and Nationality Act.

First, compare the elements of the offenses.

As we described,  the facts are not relevant if we can determine which state criminal offense the noncitizen was convicted of. Instead, we only look at the language of the law to determine whether it matches the generic definition of the federal offense––in this case, drug trafficking. 

More specifically, we compare the elements of the state offense to those of the generic definition to determine whether the minimum possible conduct (“the least of the acts criminalized”) that could be prosecuted under the state offense would also qualify as a federal offense. To do that, we first identify the generic federal offense. 

What is drug trafficking?

To categorically qualify as a trafficking offense, the state offense must constitute a felony under the Controlled Substances Act (CSA). Under the CSA, a person may be charged with a misdemeanor violation for distribution involving either a sale (remuneration) or anything more than a small (de minimis) amount of marijuana (30 grams / 1.05822 ounces).

So if the state offense involved non-remunerative distribution (“social sharing”) of less than 30 grams of marijuana, it would be charged as a misdemeanor, not a felony, under 21 U.S.C. § 841(b)(4)––and would therefore not categorically match the federal offense.

That leaves us with two questions:

1. What is the least bad thing that could possibly be convicted under VA § 18.2–248.1; and
2. Would that be described as a felony or a misdemeanor by the CSA?

Does it match all the elements of the Virginal offense?

The entire Virginia statute contains multiple subsections with sets of disjunctive elements, some of which would match the federal offense, and some of which do not, as we’ll explain below. For now, we can simply note that, because a conviction could be triggered by one of the subsections listing elements that do not match the federal offense, the offenses do not categorically match.

Next, determine if the statute is divisible.

Recall that the if the state offense defines separate crimes, a modified categorical analyses is used to determine which crime the noncitizen was convicted of. We define these crimes by their elements. As just stated, the elements of at least one section match the federal offense, and the elements of at least one section do not. (For example, they include different punishments for different violations.) The statute is divisible into multiple offenses, and we need now to determine which one supported the conviction. 

Go to the records of conviction to determine the correct offense.

We discussed how modified categorical analysis allows a “peek” at the record of conviction strictly to determine the offense of offense of conviction––including the “Shepard documents.”  The facts are only examined if they are the only way to determine the correct offense. In this case, it is clear that the conviction was the first subsection, a misdemeanor, which includes the following two provisions––the second of which is essentially an affirmative defense.

Narrow it to the relevant elements.

To categorically match, the federal offense of trafficking requires that the state violation constitute a felony under the CSA. This means that, if DHS could demonstrate that one of these misdemeanor provisions involves conduct that would be a felony under the CSA (either an amount over 30 grams amounts or a sale), then it would categorically match the federal offense.

The relevant portion of this section reads as follows (emphasis added):

Except as authorized in the Drug Control Act, Chapter 34 of Title 54.1, it shall be unlawful for any person to sell, give, distribute or possess with intent to sell, give or distribute marijuana.

1. Any person who violates this section with respect to:
2. Not more than one-half ounce of marijuana is guilty of a Class 1 misdemeanor;

. . . .

If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana, he shall be guilty of a Class 1 misdemeanor.

Because the Virginia offense states that the amount is under 0.5 ounces (less than 30 grams), we can focus on whether any of these terms requires a sale. And because the affirmative defense refers to non-remunerative transfers (no intent to profit), we can limit our inquiry even further to the meaning of the terms “give” and “distribute.” 

Different provisions must have different meanings. Because the provisions might involve similar amounts, they should be differentiated according to their terms. Thus, “give” and “distribute” should have different meanings than “accommodation.” This creates two scenarios:

1. “Accommodate” is strictly limited to non-remunerative transfers, in which case “give” and “distribute” may be interpreted to include commercial transactions; or
2. “Accommodation” has a broader definition, potentially differentiating the terms on a different basis: both provisions could thus encompass non-commercial transactions.

Accommodation includes inducement; giving and distributing do not.

“Accommodation” does in fact include an additional, non-remunerative intent: that the recipient not become dependent. “. . . . not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana” (emphasis added). 

So “accommodation” includes transfers with no intent to cause addiction, though “give” or “distribute” could: thus allowing for “social sharing” and constituting a federal misdemeanor.  Said another way: it isn’t trafficking if you only wanted to get someone hooked on the stuff. 

Our argument now unfolds in four steps: 

1. The misdemeanor offense under VA § 18.2–248.1 can be violated in a way that is a federal misdemeanor; therefore
2. It is not a felony under the CSA; therefore
3. It does not meet the generic definition of a federal trafficking offense; therefore 
4. It is not categorically a trafficking offense.

In our next post, we’ll examine how Attorney General Barr is is trying to make this even somehow even more confusing, and why the courts will eventually stop him.