9th Circuit: California selling marijuana to minor is controlled substance offense

In a published decision, the Ninth Circuit Court of Appeals recently held that a conviction for “‘furnish[ing], administer[ing], or giv[ing], or offer[ing] to furnish, administer, or give,’ marijuana to a minor older than fourteen,” a violation of Cal. Health & Safety Code § 11361(b), categorically constitutes a controlled substance offense under INA § 237(a)(2)(B)(i). Guerrero-Silva v. Holder, No. 05-77420, slip op. (March 31, 2010) (Hug, Bybee, and Gwin). Judge Bybee wrote the panel’s decision.

This case involved an LPR who entered the USA as a two-year-old. At some undisclosed period later, he was convicted of violating Cal. Health & Safety Code § 11361(b). DHS initiated removal proceedings based on this conviction.

According to the Ninth Circuit,

California Health and Safety Code § 11361(b) provides: ‘Every person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older shall be punished by imprisonment in the state prison for a period of three, four, or five years.’

This statute, the Court easily concluded, “‘relates to a controlled substance’” “because federal law lists marijuana as a controlled substance, 21 U.S.C. §§ 802(6), 812(b)(1)(C).” Guerrero-Silva, No. 05-77420, slip. op. at 5063.

The exception for “a single offense involving possession for one’s own use of 30 grams or less of marijuana” is inapplicable to this statute, the Court added, “because the actions California Health and Safety Code § 11361(b) prohibits—‘furnish[ing], administer[ing], or giv[ing], or offer[ing] to furnish, administer, or give’—are actions that, by definition, do not include ‘possession for one’s own use.” Guerrero-Silva, No. 05-77420, slip. op. at 5063.