H&S C 11351

H&S C 11351

Offense

Possess CS for sale

Aggravated Felony (AF)

AF unless a non-federal substance defense applies. For immigration purposes, even a plea to offering to sell at 11352 is far better.
See Advice and see 11378

Crime Involving Moral Turpitude (CIMT)

CIMT, like any trafficking offense.

Other Removal Grounds

Deportable and inadmissible CS offense unless a non-federal substance defense applies. See Advice.
Also inadmissible because gov’t has “reason to believe” trafficking.
See further discussion at 11378.

Advice and Comments

Very bad immigration plea. Pleading down to 11350 or up to 11352 (offering to distribute or even to sell) is far better. Recommending a plea to 11351 without advising about the advantage of pleading up to “offering” under 11352 is ineffective assistance of counsel.1See People v. Bautista, (2004) 115 Cal.App.4th 229; see also In re Bautista, H026395 (Ct. App. 6th Dist. September 22, 2005) (where defendant was a noncitizen, failure to advise and consider pleading up from § 11359 to § 11360 was ineffective assistance of counsel).

The “non-federal substance” defenses, including the “unspecified controlled substance” defense, may apply here. Please see Advice at 11350, and a more comprehensive discussion and instructions at 11377. Whenever possible, 11377-79 is a better vehicle for this defense than 11350-11352. Even with that defense, plead to 11350 or 11352 (offering) rather than 11351. Consider post-conviction relief for priors.
See further discussion at 11378 and see § N.8 Controlled Substance.

2020-05-19T16:28:36+00:00Updated January 29th, 2020|