H&S C 11350 (a), (b)

H&S C 11350 (a), (b)

Offense

Possess controlled substance

Aggravated Felony (AF)

Generally not an AF, but see Advice.

Crime Involving Moral Turpitude (CIMT)

Not a CIMT.

Other Removal Grounds

Deportable and inadmissible CS offense, except see Advice regarding non-federal substance defenses. Arguably California heroin is a non-federal substance, because it is defined differently than heroin on the federal schedule.1This argument is similar to the Lorenzo line of cases that initially found that California methamphetamines are not a federal substance – except that the heroin argument appears to be stronger. It appears that heroin under California law has the same textual overbreadth as meth did: the California statutory schedule specifically includes geometrical isomers of heroin, but the federal schedule does not. The Ninth Circuit ultimately rejected this defense for meth after a district court held an evidentiary hearing and concluded that the meth geometric isomer does not exist.  See U.S. v. Rodriguez-Gamboa, 972 F.3d 1148 (9th Cir. 2020), discussed at Advice to H&S 11377. However, it appears that a geometrical isomer of heroin—“isoheroin”—does exist. ILRC will post an expert declaration on this when it becomes available. Many thanks to the Federal Defenders for spotting this issue.

Advice and Comments

See 11377 for a discussion of various defenses.

AF: Possession of a CS is not an AF unless (a) it is possession of flunitrazepam or (b) it is a second offense, where the first possession was pled or proved for a recidivist sentence enhancement.

Non-federal substance defenses. The Ninth Circuit has found that non-federal controlled substance defenses apply to 11350-52, but whenever possible, 11377-79 is a better vehicle than 11350-52 for this defense. See discussion of the defenses at 11377.

See also § N.8 Controlled Substance.

2020-10-21T22:45:18+00:00Updated January 29th, 2020|