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I live near Castroville, California the self-proclaimed artichoke capital of the world. I love artichokes. You get to nibble on the leaves of the artichoke and peel them away until you get to the thistles and cut them away until you get to the heart – the most delicious part. This case reminds me of an artichoke. You have to work to peel away the leaves and the thistles to get to the heart of the case; but it’s worth it. This decision holds that an Oregon conviction for delivery of cannabis for consideration (Oregon Revised State § 475.860) is categorically not a drug trafficking offense, because the minimum conduct necessary to meet the elements of a conviction does not include a commercial element. And the Ninth Circuit kindly explains what “drug trafficking” actually means. For years, I have pretended that I knew what drug trafficking was, because it sounded so cool – but I really did not understand it. This case explained it and now I’m officially cool. Drug trafficking is simply a commercial transaction involving controlled substances. Matter of L-G-H-, 26 I&N Dec. 365, 371 n.9 (BIA 2014). See also, Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010). The commercial element – selling a drug for money or other consideration – is what makes it a drug trafficking offense. And, if you peel away the leaves and thistles of the Oregon statute, it becomes clear that the elements of the underlying statute includes “solicitation” which is not a commercial element. “Solicitation” can mean asking someone to ask someone else to commit a crime. It is a game of mob or cartel “telephone.” Because “solicitation” is missing a commercial element, delivery of cannabis for consideration is not drug trafficking. Brilliant! Congratulations to Brian Conroy and Rachel Game for coming up with this argument.
Facts of the Case
Jonatan Cortes-Maldonado is a native and citizen of Mexico. In 1998 he entered the United States without inspection and in 2006 he became a lawful permanent resident. In 2012, he pleaded guilty to one count of “Delivery of Marijuana for Consideration” in violation of Oregon Revised Statutes section 475.860.” Cortes-Maldonado v. Barr, No. 18-70927, slip op. (9th Cir. Oct. 15, 2020). (“Delivery of marijuana for consideration”? Now that’s a sentence that only a lawyer can understand. This decision is very wonky). Mr. Cortes-Maldonado violated probation and was sentenced to ten days’ in jail. While in jail, Immigration and Customs Enforcement (ICE) issued an immigration detainer and served him with a Notice to Appear (NTA). The NTA alleged that Mr. Cortes-Maldonado had been convicted of an aggravated felony drug trafficking offense under INA § 101(a)(43)(B).
In June 2013, Mr. Cortes-Maldonado applied for asylum, withholding, and protection under the Convention Against Torture (CAT). He asked for a continuance to give him time to obtain post-conviction relief. In October 2016, Mr. Cortes-Maldonado withdrew his asylum and withholding applications and sought CAT relief. The Immigration Judge denied the CAT application and ordered him removed as an aggravated felon under INA § 101(a)(43)(B) for drug trafficking. But and this is key, the Immigration Judge never analyzed whether the conviction constituted an aggravated felony.
Mr. Cortes-Maldonado appealed the decision to the Board of Immigration Appeals (BIA) and was ably represented by Rachel Game. He argued that under Sandoval v. Yates (Sandoval I), 847 F.3d 697 (9th Cir. 2017) he was no longer removable as an aggravated felon. In Sandoval I, the Ninth Circuit held that delivery of heroin under Oregon Revised Statutes § 161.405(1) was neither a “drug trafficking” crime because it included solicitation, nor an “illicit trafficking in a controlled substance” because it included non-commercial delivery. Sandoval, 847 F.3d at 701-05. While Mr. Cortes-Maldonado’s case was pending before the BIA, the Ninth Circuit withdrew and amended its decision in Sandoval I. The Ninth Circuit noted that the BIA had not considered the issue of whether the Oregon statute was an illicit drug trafficking offense, and the Ninth declined to address it first. Sandoval v. Sessions (Sandoval II), 866 F.3d 986, 989 n.3 (9th Cir. 2017). The BIA asked Mr. Cortes-Maldonado and DHS to file supplemental briefs in light of Sandoval II. The BIA found that Mr. Cortes-Maldonado’s conviction for delivery of marijuana was categorically a drug trafficking offense. Mr. Cortes-Maldonado appealed to the Ninth Circuit where he was represented by Brian Conroy; the attorney who also represented Mr. Sandoval.
Legal Analysis
Modified Categorical Approach
The Ninth Circuit held that because Oregon’s statute for delivery of cannabis is categorically broader than the federal generic definition of drug-trafficking the underlying crime is not an aggravated felony. In its analysis, the Court started out by explaining the categorical and modified categorical approach. It simplifies analysis breaking it down to three steps: (1) determining the elements of “illicit trafficking of a controlled substance offense;” (2) analyzing the state criminal statute to determine its elements – including whether the statute is “divisible” in which case the court uses the modified categorical approach and looks at the record of conviction to determine which alternative formed the basis of the prior conviction; and, (3) comparing the federal generic crime to the state offense. Cortes-Maldonado, slip op. at *9. Easy enough to do. The Court found that the statute was divisible because it listed different punishments depending on whether the “delivery” was with or without “consideration” and used the modified categorical approach to determine whether delivery of cannabis was an aggravated felony. (I don’t think I’ve thought about the concept of “consideration” this much since my first year of law school. But thank you Professor Nash for drilling the concept of consideration into my brain. It has proven to be useful).
The Ninth Circuit found that the statute of conviction contained three basic elements: (1) cannabis, (2) delivery, and (3) consideration. The entire analysis then hinged on the definition of delivery. Here is where the analysis gets brilliant and kudos to Brian Conroy for coming up with this argument. The State of Oregon defines “delivery” as “the actual constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship.” § 475.005(8).” Cortes-Maldonado, slip op. at *11 (emphasis in the original). (You just have to wonder who wrote that sentence).
Solicitation
This argument may not seem brilliant yet but keep reading. “Oregon courts, in turn, have construed “attempted transfer” broadly to encompass solicitation, reasoning that solicitation constitutes a “substantial step toward committing the crime of delivery and therefore, constitute[s] delivery.” Ibid. Because the Oregon courts have interpreted the term “attempted transfer” to include “solicitation” that part of the statute is indivisible and overbroad. Bear with me here – remember drug trafficking requires a commercial element that is absent from the crime of solicitation. “Delivery” includes “attempted transfer” which includes “solicitation.” Because solicitation constitutes a substantial step toward committing the crime of delivery and is indivisible, the statute is overbroad. And solicitation is missing a commercial element. Accordingly, the offense cannot be a drug trafficking offense. That is brilliant. We simply had to peel the artichoke and get rid of the thistles to get to the heart of this argument and once we did, the argument is delicious.
The Ninth Circuit then goes on to review the Immigration and Nationality Act and notes that while solicitation to commit a crime is included in several of the grounds of inadmissibility and deportability, it is not included under INA § 101(a)(43). For example, a noncitizen is deportable for offering to sell a weapon under INA § 237(a)(2)(C) or is inadmissible for encouraging a person to enter or try to enter the United States illegally under INA § 212(a)(6)(E)(i) but, the aggravated felony statute, INA § 101(a)(43) is silent on solicitation. Notably, INA § 101(a)(43)(B) does not include solicitation in its definition of drug trafficking and the catchall section INA § 101(a)(43)(U) is limited to an attempt or a conspiracy to commit an offense described in Section 101(a)(43). Section 101(a)(43)(U) is missing the term “solicitation” or “soliciting.” Cortes-Maldonado, slip op. at *17. “Given our precedent and the overall structure of the relevant INA provisions, we conclude that the conduct proscribed by Oregon’s marijuana delivery statute does not constitute “illicit trafficking of a controlled substance.” Ibid.
The Ninth Circuit distinguished this case from its decision in Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008)(possession with intent to sell is an aggravated felony drug trafficking offense). The Ninth Circuit noted that possession combined with intent to sell satisfies the commercial aspect of illegal drug trafficking. Cortes-Maldonado, slip op. at *13. But solicitation to deliver a controlled substance is not the same as the crime of possession with intent to deliver a controlled substance. First, the former Oregon cannabis delivery statute did not require actual possession or distribution, but rather, the defendant only had to make some statement that might have led another person to help. State v. Sargent, 822 P.2d 726 (Or. Ct. App. 1991). The Oregon courts have held that delivery is a distinct crime that does not legally merge with the crime of possession of a controlled substance. [T]he minimum conduct needed for a conviction, for solicitation – words and desire – do not relate to commercial activity.” Cortes-Maldonado, slip op. at *18-19. Then, in a footnote that truly reminded me of middle school, the Ninth Circuit noted that the Oregon courts have held that a person commits the crime of solicitation when they ask an intermediary to ask a third party to commit a crime, even if the intermediary never communicated with the third party. Just the ask is enough. Cortes-Maldonado, slip op. at *19 n. 17.
By getting to the heart of the definition of the term “delivery” the Ninth Circuit held that a conviction for delivering cannabis for consideration is categorically not an aggravated felony drug trafficking offense because it is missing the commercial element necessary for drug trafficking. This case reminds us never to take any word in a statute for granted and to continue to work on a very granular level.
Cortes-Maldonado v. Barr, No. 18-70927 (9th Cir. Oct. 15, 2020).