Offense
(b) Unlawfully gives or offers to give cannabis to a minor age 14 or older.
Aggravated Felony (AF)
Offering to give should not be an AF, but in the Ninth Circuit only.
Assume that giving any amount is an AF and that defenders must avoid this. See Advice for alternatives.
Removal defense advocates should see Advice for arguments, including that California cannabis is not a federal CS.
Crime Involving Moral Turpitude (CIMT)
Conservatively assume it is a CIMT, although this can be contested.
Other Removal Grounds
Controlled substance offense (but see Advice for argument that California cannabis is not a federal controlled substance)
Assume it is a deportable crime of child abuse (but see Advice)
Advice and Comments
H&S C 11361(b)
Defenders should try hard to avoid this and any drug offense. Consider trying for a charge that can take pre-trial diversion at PC 1000, 1001.95, or other, or a plea to 272, 273a(b), 370, 372.5, 415, etc. For felonies or strikes, PC 32 or 136.1(b)(1) – but sentence must be under 1 yr – or maybe 459 1st or 2nd degree, etc.
Argument that California cannabis is not a federal CS because the definition of cannabis is overbroad and indivisible, under the categorical approach. See Advice at 11357(a)(2). If that argument prevails, no conviction from on or after 11/9/16 of a cannabis offense will be a drug trafficking AF or a CS offense for immigration purposes. Defenders should not rely on this, but advocates in removal proceedings can raise the defense.
AF. See citations in this endnote.1H&S C § 11361(b) as an AF. Offering to give or sell a CS (controlled substance) is not an AF (aggravated felony), in the Ninth Circuit only. See, e.g., U.S. v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc) (H&S C § 11352 is divisible between types of conduct, because offering is not an AF) and discussion at 11379.
Apart from the Ninth Circuit rule on offering, the general rule is that a state CS offense that does not involve commercial trafficking, such as giving a CS away for free, also is an AF if the state offense is analogous to a federal drug felony. Giving away a CS generally is a federal felony and thus a drug trafficking AF, but giving away a “small amount of marihuana” is a federal misdemeanor, with a potential sentence of up to one year. See 21 USC § 841(b)(4) and Moncrieffe v. Holder, 569 U.S. 184, 193-99 (2013), discussed in endnote above. This is why giving away cannabis in violation of § 11360(a) is not an AF. But does the added element of giving cannabis to a minor age 14-17 raise the offense to a federal felony? It appears so, because it appears that this is analogous to a federal felony under 21 USC § 859(a). That section provides that an adult who gives a CS to a person under age 21 is
subject to (1) twice the maximum punishment authorized by section 841(b) of this title, and (2) at least twice any term of supervised release authorized by section 841(b) of this title, for a first offense involving the same controlled substance and schedule. Except to the extent a greater minimum sentence is otherwise provided by section 841(b) of this title, a term of imprisonment under this subsection shall be not less than one year. The mandatory minimum sentencing provisions of this subsection shall not apply to offenses involving 5 grams or less of marihuana.
If the potential one-year sentence is doubled to a potential two years, that could make the offense a federal felony and thus an AF.
(A possible argument for removal defense advocates concerns the last sentence, the 5 grams of marijuana exception for “mandatory minimum sentencing provisions”. Immigration advocates might argue that that sentence means that the potential sentence is not doubled, if the CS was just 5 grams of marijuana. If that were the case, then a 11361(b) would remain analogous to a federal misdemeanor if the record shows 5 grams or less of marijuana. But the Ninth Circuit did not read it that way in United States v. Durham, 464 F.3d 976, 987 (9th Cir. 2006). There the court held that under 859(a), a mother who had her baby breathe in marijuana was subject to a potential sentence of two years – double the one-year potential sentence for giving away a small amount of marijuana under 21 USC 841(b)(4). Without discussion, the court appeared to read the last sentence’s 5-gram exception that applies to “mandatory minimum sentencing provisions” to apply to the requirement of a minimum term of imprisonment of one year, not to the doubling of the potential sentence. That means that even 5 grams of marijuana would have a potential two-year sentence and be a felony. Arguing otherwise is likely to lose, although it may not be frivolous (partly because the last sentence on the exception discusses the “mandatory minimum sentencing provisions” in the plural, while there appears to be just one provision). As always, while pursuing an untried argument, immigration advocates should investigate the possibility of obtaining post-conviction relief to vacate the conviction. The best ways to avoid a drug AF here, in order of preference, are to win at trial or negotiate to (a) a non-drug offense, see above; (b) 11357 possession, or if possible diversion; (c) 11360 offering to give away a small amount, or just giving away a small amount, if possible to a specific person who is age 21 or older; and (d) 11361(b) offering to give away, which should not be an AF in proceedings within the Ninth Circuit. Removal defense advocates can investigate an argument that 11360(b) offering to give away, or giving away, “less than 5 gm” of cannabis is not an AF, but this is not predicted to win at this time.
Why these? First, offering to give (or sell) a CS is not an AF, in the Ninth Circuit only. See 11379. Second, nationally, while giving away a CS generally is a drug trafficking AF, giving away a “small amount of marijuana” is not an AF; thus 11360 is not an AF. But giving away a small amount of mj to a minor, 11361(b), is not secure.
It’s also possible that the circumstance specific analysis could be used here, so that even conviction of an 11360 offense, which does not have a minor recipient as an element, could be held an aggravated felony if the facts show that the recipient in fact was under age 21, under the circumstance specific approach. That is why we recommend that in the case of 11360 as a substitute plea, one should identify a specific person 21 years or older if possible.
CIMT. The BIA has held that giving a CS away for free is a CIMT. But because two thirds of U.S. states permit sale of medical or recreational mj, arguably giving away (or selling) mj now is a “regulatory” offense and not a CIMT. Arguably this applies to giving it to a 17-year-old, like the non-CIMT of giving or selling liquor to a minor. Defenders should not rely on this, but removal advocates should raise it.
Child abuse. The issue may turn on whether, under the categorical approach, mj is sufficiently “harmful” to a 17-year-old. Defenders should not rely on this, but removal defense advocates can argue that, like selling or giving alcohol to a 17-year-old, this does not rise to the level of child abuse.