The Ninth Circuit has determined that a conviction for possession for sale of methamphetamine under section 11378 of the California Health and Safety Code (CHSC) is a drug trafficking aggravated felony. There are two definitions of a drug trafficking aggravated felony. First, under the phrase “illicit trafficking in a controlled substance,” a state drug crime is an aggravated felony “if it contains a trafficking element.” Second, under the phrase “including a drug trafficking crime (as defined in section 924(c) of Title 18),” a state drug crime is an aggravated felony if it would be punishable as a felony under the federal drug laws.
The petitioner argued that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law. Under federal law, the defendant cannot be mistaken about the nature of the substance he is trafficking. The petitioner argued that because of this mismatch, his conviction does not qualify under the second definition of a drug trafficking aggravated felony.
The court declined to address the petitioner's argument, finding that he trafficked a substance controlled under federal law, and thus, his conviction fell within the first definition of a drug trafficking aggravated felony. "To the extent 'illicit trafficking' in route one incorporates a mens rea requirement, section 11378 suffices because it requires that the defendant intend to possess for sale a controlled substance and actually possess for sale a controlled substance, and that both the intended substance and the actual substance be controlled. This is, in fact, the same mens rea required under federal law."
The full text of United States v. Verduzco-Rangel can be found here: