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Ninth Circuit:
Sale of Small Amounts of Marijuana Not Deportable Crime
Tashima Says, for Majority, That Sale-Based Offenses Involving Less Than Two Ounces Do Not Involve
Moral Turpitude, While 2007 Case Declares Those Entailing More Than Four Ounces Do
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals determined yesterday, in a 2-1 decision, that a woman is not subject to deportation based on a conviction for the possession of less than two pounds of marijuana for the purpose of sale and another conviction for offering to transport less than two pounds of marijuana for sale.
Senior Judge A. Wallace Tashima wrote for the majority. Judge Marsha S. Berzon authored a concurring opinion and Judge Daniel P. Collins dissented.
Petitioner Pattie Page Walcott a lawful permanent resident of the U.S. since 1999, may not be deported to Jamaica, Tashima declared, because the two offenses are not crimes involving moral turpitude (“CIMT”).
2007 Decision
The Ninth Circuit found in 2007 in Barragan-Lopez v. Mukasey that soliciting more than four ounces of marijuana for purpose of sale did constitute a CIMT, but left open the effect of a conviction involving lesser amounts of the substance.
In his opinion granting a petition for review of a decision of the Board of Immigration Appeals upholding an order for deportation, Tashima said:
“[A]s Barragan-Lopez recognized, a drug trafficking offense involving a small amount of marijuana might not involve moral turpitude. The conviction in Barragan-Lopez involved more than four pounds of marijuana, the category in the statute for the largest quantity, and the court specifically relied on the large quantity to conclude the offense was a CIMT….This case… presents the question left open in Barragan-Lopez—whether an offense involving ‘a very small quantity of marijuana for sale’ is a CIMT….We conclude that Walcott’s convictions are not CIMTs.”
Rationale of Precedents
He commented:
“We have determined that trafficking of over four pounds of marijuana is a CIMT…, but the underlying rationale of our case law—that drug trafficking involves actual injury tantamount to murder on a slower scale—does not apply to the sale of small amounts of marijuana.”
He cited a fact sheet issued by the Drug Enforcement Administration saying that there are no reports of fatal overdoses from use of marijuana.
“Contemporary societal attitudes toward marijuana support the conclusion that offering to transport for sale and solicitation to possess for sale very small amounts of marijuana are not offenses that are so inherently base, vile, or depraved that they offend society’s most fundamental values or shock society’s conscience,” Tashima remarked.
Berzon’s View
Berzon said in her concurring opinion:
“I continue to believe that the phrase ‘crime involving moral turpitude’ (‘CIMT’) is unconstitutionally vague,” Berzon wrote, citing cases in which she previously expressed that view. She added:
“I concur in Judge Tashima’s opinion, however, as it properly applies the existing case law concerning the CIMT concept to the crime of conviction in this case.”
Collins’s Dissent
Collins noted that the BIA, in determining Walcott’s convictions, under Arizona law, involved moral turpitude, pointed out they involved sales, distinguishing this from “casual sharing of a marijuana cigarette among friends” without money changing hands. He wrote:
“Thus, the BIA concluded that the sort of sharing among friends posited in Barragan-Lopez would be considered morally turpitudinous if it involves sales, but not if it involved giving away a few cigarettes for free.
“That reasoning seems to me to be sound….”
He went on to say:
“If the majority is right that overdose deaths are the linchpin of moral turpitude, then any trafficking in marijuana—whether more than four pounds or less than two pounds—cannot be deemed morally turpitudinous. The majority’s narrow reconceptualization of what makes drug trafficking morally turpitudinous thus cannot provide a coherent basis for drawing a line between small-scale retailers on the one hand and large-scale retailers and wholesalers on the other. Because the majority’s view is logically irreconcilable with Barragon-Lopez, it cannot be correct.”
The case is Walcott v. Garland, 18-70393.
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