Does “Trafficking” Really Mean “Trafficking”?

February 3, 2015
By Hanging Out with Carl Gunn


  • A recent Fifth Circuit case held that a Georgia possession of marijuana with intent to distribute conviction didn’t qualify as a “drug trafficking offense” for purposes of the illegal reentry guideline enhancement because it included possession with intent to distribute small amounts of marijuana for no remuneration.
  • The case is based on the Supreme Court’s decision inMoncrieffe v. Holder, 133 S. Ct. 1678 (2013), which held that an offense under this same Georgia statute didn’t qualify as “trafficking in a controlled substance” under the immigration laws because the everyday understanding of “trafficking” is some sort of commercial dealing.
  • We can think about extending this to other state statutes, like California’s, which include not just selling, but also “giving away,” “administering,” and “furnishing.”


For those of you who haven’t already seen it, I thought I’d share a great Fifth Circuit case that recently came to my attention on one of the e-mail chains I’m on. The case is United States v. Martinez-Lugo, 773 F.3d 678 (9th Cir. 2014). The question presented in the case was whether a Georgia conviction for possession with intent to distribute marijuana qualified as a “drug trafficking offense” that required a 16-level enhancement under § 2L1.2(b)(1)(A)(i) of the sentencing guidelines. The court held it didn’t qualify because the Georgia statute includes possession with intent to distribute (and actual distribution of) even small amounts of marijuana for no remuneration, and that doesn’t qualify as “trafficking” under any ordinary interpretation of the word “trafficking.”

In reaching this conclusion, the court relied on the Supreme Court’s recent decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Moncrieffe held that a conviction under this same Georgia statute didn’t qualify as “illicit trafficking in a controlled substance” in subparagraph (B) of the 8 U.S.C. § 1101(a)(43) definition of “aggravated felony.” The court pointed toMoncrieffe’s reasoning that “[s]haring a small amount of marijuana for no remuneration, let alone possession with intent to do so, does not fit easily into the everyday understanding of ‘trafficking,’ which ordinarily means some sort of commercial dealing.” Martinez-Lugo, 773 F.3d at 684 (quoting Moncrieffe, 133 S. Ct at 1693 (internal quotations and ellipses omitted)).

The court did acknowledge an application note in the § 2L1.2 commentary which defines “drug trafficking offense” to include “possession of a controlled substance . . . with intent to . . . distribute” with no express qualification of “distribute.”Martinez-Lugo, 773 F.3d at 683 (quoting U.S.S.G. § 2L1.2, comment. (n.1(B)(iv)). The court also acknowledged the need to give “great weight” to that commentary. Martinez-Lugo, 773 F.3d at 683. Still, the court pointed out, deference to guidelines commentary is “not limitless.” Id. It then held there should not be deference in this instance because the language used in the actual guideline was “trafficking,” the commentary’s purported definition of that word conflicted with the everyday understanding recognized in Moncrieffe, and it is the language of the guideline which must control when it and the commentary conflict. Martinez-Lugo, 773 F.3d at 685.

One need not go as far as Martinez-Lugo did in urging other courts to adopt its holding. In characterizing the commentary as conflicting with the guideline, the court appeared to assume that “distribution” and “distribute” had to include sharing and/or giving away for no remuneration. This is certainly one reasonable interpretation of “distribute,” but it isn’t necessarily the only one. An alternative intepretation of “distribute” – and arguably one more in accord with the “everyday understanding,” to track the language of Moncrieffe – is commercial-type sales activity. If “distribute” is interpreted to mean this, the conflict which the Martinez-Lugo court assumed to exist goes away and one doesn’t need to get to the point of affirmatively rejecting guidelines commentary. One can simply reconcile the commentary with the language of the guideline. Cf. United States v. O’Brien, 50 F.3d 751, 755 (9th Cir. 1995) (construing commentary to avoid conflict with “vulnerable victim” guideline).

Martinez-Lugo has a potentially broad sweep because the Georgia statute is hardly unique in criminalizing sharing or giving away drugs for no remuneration. One additional example can be found here in California. The marijuana and other drug statutes here criminalize not only “sell[ing]” but also – in the same statute – “furnish[ing],” “administer[ing],” and “giv[ing] away.” Cal. Health & Safety Code §§ 11352, 11360. And it wouldn’t surprise me if there’s a number of other states with statutes that go beyond actual sale, though I haven’t done a 50-state survey.

Of course, in most cases, what the defendant actually did was probably selling. But there’s multiple hurdles the government will have to overcome to use that in your client’s case, arising out of the limits of the categorical approach and modified categorical approach as most recently explained in Descamps v. United States, 133 S. Ct. 2276 (2013). First, a conviction under California Health and Safety Code § 11352 or § 11360, to use those as examples, won’t be able to qualify under the categorical approach because of the statute’s inclusion of “giv[ing] away” (and possibly even “administer[ing] and “furnish[ing],” depending on what those things mean). Second, again using the California statutes as examples, the modified categorical approach can be used to narrow the conduct to “selling” only if the statute is “divisible”; the statute can be found to be divisible only if jury unanimity is required on which of the selling/ furnishing/administering/giving away alternatives the defendant did (see the post entitled, “More on Descamps,” in the September 2013 link at the right and the post entitled, “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right); and there’s a strong argument that California doesn’t require that unanimity (see the post entitled, “Another Descamps Angle on a California Drug Statute” in the May 2014 link at the right). Third, even if the modified categorical approach can be used, the government will have to come up with court records that show a court or jury found and/or a defendant specifically admitted the selling alternative.

So think about making this argument in our circuit and others. If they can do it in the Fifth with the Georgia statute, they can do it here with the California and possibly other statutes.