Is transportation of marijuana a “controlled substance offense” under Career Offender guidelines?

David Martinez appeals his sentence following conviction for importation of marijuana, in violation of 21 U.S.C. SS 952 and 960. Martinez argues that the Government failed to prove that he had the two predicate “controlled substance” convictions that would make him a “career offender ” under the United States Sentencing Guidelines (“U.S.S.G.”).

To be deemed a career offender under the Guidelines, (1) a defendant must have been at least eighteen years old at the time he committed the offense for which he is being sentenced, (2) that offense must be a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant must have at least two prior felony convictions for either a crime of violence or a controlled substance offense. See U.S.S.G. S 4B1.1.

The government here contends, and the district court held, that Martinez’s 1996 California conviction was for “import[ing]” marijuana, and therefore comes within the controlled substance definition. Martinez maintains, however, that he was convicted only for transporting marijuana, not for importing it, so that the 1996 conviction does not count for purposes of the career criminal enhancement.

“Import” in the controlled substances definition of § 4B1.2(b), on which the Guidelines career offender provision, U.S.S.G. § 4B1.1, depends, must necessarily mean importing across an international border. “Import” means to bring from another place to this place. See 7 Oxford English Dictionary 727 (2d ed. 1989) (“To bring in; to introduce from a foreign or external source. . . .”). Common sense dictates that when a federal statute is concerned, “this place” must be the nation as a whole, not some subdivision thereof.

As the categorical approach dictates, we begin with the state statute. Section 11360(a) provides:

Except as otherwise provided by this section or as authorized by law, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years. Cal. Health Safety Code § 11360(a).

Martinez argues that his 1996 California conviction under § 11360(a) does not qualify as a “controlled substance offense” as defined in the Guidelines because, he asserts, he was convicted only of transportation, rather than importation, of marijuana, and transportation of marijuana, without more, is not within the relevant controlled substance offense definition.

Section 11360, however, covers both transporting and importing. And “transports” in this state statute cannot include as a necessary element importing across an international border, both as a matter of plain language — “transport” does not connote travel across a border — and because Section 11360(a) also includes “imports into California,” indicating that the California legislature understood that the two concepts are distinct. Accordingly, “transports” in the context of the California statute must have a different meaning than “imports.”

While Martinez may have been charged with importation, there are no judicially noticeable facts demonstrating he was convicted of that charge.

Accordingly, the text of Section 11360(a) and the judicially noticeable facts do not establish that Martinez was convicted of any offense defined by the career criminal guideline as supporting enhancement. Because Martinez only had one prior felony conviction satisfying the definition of a controlled substances offense contained in § 4B1.2(b), he could not be deemed a career offender under the Guidelines. The district court therefore erred by setting his base offense level in accordance with the schedule for career offenders set forth in § 4B1.1.

Full case here: U.S. v. Martinez, 232 F.3d 728 (9th Cir. 2000).

Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
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