Amendments to California transportation of controlled substances: trap for the unwary

"Transportation" used to be a safe plea to avoid an aggravated felony in California because "transportation" was defined by case law as transportation for personal use. But, as a result of new legislation effective January 1st, 2014, the definition of "transportation" for H&S 11379 (which includes meth offenses)and 11352 (which includes cocaine and heroin offenses) was changed to "transportation for sale." The definition of "transportation" was not changed for H&S 11360 (which is confined to marijuana offenses).

For noncitizens, this is a trap for the unwary. A plea to "transportation" under H&S 11379 and 11352 no longer a way to avoid an aggravated felony. This means a plea to "transportation" under these code sections means virtually certain deportation for lawful permanent residents.

Fortunately, there still is a way to avoid an aggravated felony for these code sections: a plea to "offer to sell" a controlled substance under H&S 11379 and 11352 will not be an aggravated felony. But, this comes at a price. It is a crime of moral turpitude. One crime of moral turpitude committed within 5 years of admission is a deportable offense and cancellation of removal will likely be unavailable because a noncitizen needs 7 years after being admitted in any status and five years as a permanent resident. Two crimes of moral turpitude after admission also makes a noncitizen deportable. "Transportation" under these sections prior to the 2014 amendment was not a crime of moral turpitude because it was defined as transportation for personal use. For this reason, transportation avoided being characterized as a crime of moral turpitude, even though it was and is a deportable controlled substance offense.

Another way to avoid an aggravated felony and a controlled substance offense for H&S 11379 and 11352 is to plead to a non-specified controlled substance offense. For example, a plea to H&S 11379 for any crime defined in this code section, will not be an aggravated felony or a deportable controlled substance offense because California punishes a broader array of controlled substances than the federal Controlled Substances Act. This was recently confirmed by the Ninth Circuit case of Coronado v. Holder for H&S 11379.