Donawa v. U.S. Attorney Gen.

• Decision Date: 07 November 2013
• Docket Number: No. 12–13526.,12–13526.
• Parties: Dwight Dion DONAWA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

735 F.3d 1275

Dwight Dion DONAWA, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 12–13526.

United States Court of Appeals,Eleventh Circuit.

Nov. 7, 2013.

Michael S. Vastine, St. Thomas University School of Law, Miami Gardens, FL, for Petitioner.

Jesse Matthew Bless, Joanna L. Watson, David V. Bernal, Ernesto Horacio Molina, Jr., Krystal Samuels, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office USICE, Miami, FL, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals. Agency Case No. A040–157–660.

Before MARTIN, JORDAN and SUHRHEINRICH,^* Circuit Judges.

MARTIN, Circuit Judge:

Dwight Dion Donawa petitions for review from an order of the Board of Immigration Appeals (BIA) affirming an Immigration Judge's (IJ) determination that Mr. Donawa is not eligible for cancellation of removal because he committed an aggravated felony. We must decide whether a conviction under Fla. Stat. § 893.13(1)(a)(2) for the possession of cannabis with the intent to sell or deliver is, as a matter of law, a drug trafficking aggravated felony. After a careful review of the record, and with the benefit of oral argument, we conclude that it is not.

I.

The Immigration and Nationality Act (INA) allows the government to deport noncitizens who are convicted of certain crimes while in the United States, includingdrug offenses. 8 U.S.C. § 1227(a). Ordinarily, a deportable noncitizen may ask the Attorney General for discretionary relief from removal. See id. § 1229b. But if that noncitizen has been convicted of an aggravated felony, he is not only deportable; he is also ineligible for any discretionary relief. Id. § 1229b(a)(3), (b)(1)(C). Mr. Donawa now finds himself in precisely this unenviable position: the BIA has determined that he was convicted of a crime that, as a matter of law, qualifies as an aggravated felony. This BIA determination gives the Attorney General no choice but to deport Mr. Donawa.

Mr. Donawa is a native and citizen of Antigua who entered the United States as a lawful permanent resident on December 26, 1985. On June 8, 2009 he was convicted in Florida state court of two charges: (1) possession of cannabis with intent to sell or deliver in violation of Fla. Stat. § 893.13(1)(a)(2); and (2) possession of drug paraphernalia in violation of Fla. Stat. § 893.147(1).

The Department of Homeland Security began removal proceedings against Mr. Donawa on November 2, 2011. The Department charged that Mr. Donawa was removable first because he had been convicted of an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and second because he had been convicted of a crime relating to a controlled substance pursuant to 8 U.S.C. § 1227(a)(2)(B)(i).

Mr. Donawa disputed both of these charges before the IJ, arguing that he was not subject to removal. Alternatively, and most important for this appeal, he argued that he was at the very least eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(a). The IJ rejected Mr. Donawa's arguments, finding him removable and also ineligible for cancellation of removal as a matter of law because Fla. Stat. § 893.13(1)(a)(2) is a drug trafficking crime, and so an aggravated felony. Mr. Donawa appealed the IJ's decision to the BIA, which affirmed the IJ's conclusion without adopting its reasoning. Mr. Donawa now appeals from the BIA's final order.

II.

It is important first to clarify the issue now before us. Mr. Donawa concedes that he is removable. He asks us only to consider whether he is removable as an aggravated felon, and therefore ineligible for discretionary relief.¹ The basis of the BIA's decision further limits the scope of our review because it rested entirely on his cannabis conviction under Fla. Stat. § 893.13(1)(a)(2). The BIA made no ruling on what effect Mr. Donawa's conviction for possessing drug paraphernalia has on his eligibility for cancellation of removal. That issue is therefore not before us on this appeal. Rather, the question before us is simply this: whether Mr. Donawa's conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, is an aggravated felony as a matter of law. Although we are mindful that Congress has restricted appellate review of immigration proceedings, we retain jurisdiction over questions of law such as this one, which we review de novo.²See8 U.S.C. § 1252(a)(2)(D); Tovar v. U.S. Attorney Gen., 646 F.3d 1300, 1303 (11th Cir.2011).

The INA provides various definitions for the term “aggravated felony,” but we are concerned with only one here. For Mr. Donawa's appeal, the term “aggravated felony” means “illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). Thus, the question before us can be broken down into two distinct issues: (1) whether a violation of Fla. Stat. § 893.13(1)(a)(2) constitutes a “drug trafficking crime”; and (2) if not, whether it falls into the broader category of “illicit trafficking in a controlled substance.” In resolving each of these questions, courts apply a categorical or modified categorical approach, depending on the statutory scheme. See Descamps v. United States, ––– U.S. ––––, ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013); Jaggernauth v. U.S. Attorney Gen., 432 F.3d 1346, 1353–56 (11th Cir.2005).³

Under the categorical approach, a court must confine its consideration only to the fact of conviction and the statutory definition of the offense. E.g., Ramos v. U.S. Attorney Gen., 709 F.3d 1066, 1069 (11th Cir.2013). We do not consider the facts of the case, and instead ask only “whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Moncrieffe v. Holder, ––– U.S. ––––, ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quotation marks omitted). A state offense is an aggravated felony for INA purposes only if it necessarily involves facts equating the generic federal offense. Id. “Whether the noncitizen's actual conduct involved such facts is quite irrelevant.” Id. (quotation marks omitted). “Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. (quotations marks and alterations omitted).

This general approach is not without exception. The modified categorical approach applies when the state statute is “divisible”—that is, when it punishes some conduct that would satisfy the elements of a federal felony and some conduct that would not. See Ramos, 709 F.3d at 1069;Jaggernauth, 432 F.3d at 1354–56. When the state statute under examination is divisible, we expand our inquiry beyond the fact of conviction and also “look to the record of conviction—including documents involving the charge, plea agreement, or sentence.” Ramos, 709 F.3d at 1069;see also Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005) (limiting the scope of judicial records that can be relied upon by courts applying the modified categorical approach).

However, any idea that this Court inevitably applies the more searching modifiedcategorical approach when a state crime does not qualify as an aggravated felony under the pure categorical approach is misguided. Rather, the modified categorical approach is applied only when a single statute lists a number of alternative elements that effectively create several different crimes, some of which are aggravated felonies and some of which are not. Descamps, 133 S.Ct. at 2285. As the Supreme Court recently reminded us, the modified categorical approach is intended as a “tool used in a narrow range of cases to identify the relevant element from a statute with multiple alternatives.” Id. at 2287 (quotation marks omitted). It is not intended to be “a device employed in every case to evaluate the facts that the judge or jury found.” Id. When the crime for which a defendant is convicted does not “require the factfinder” to make a determination of an element in at least some cases, courts analyzing whether a conviction qualifies as an aggravated felony cannot invoke the modified categorical approach to look beyond the fact of conviction. Id. at 2293.

A.

This is not the first time we have been called upon to consider whether Fla. Stat. § 893.13(1)(a)(2) qualifies as an aggravated felony. See Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n. 3 (11th Cir.2002) (noting that the then-effective version of the statute qualified as a drug trafficking aggravated felony). After our decision in Fequiere, however, Florida passed Fla. Stat. § 893.101, significantly changing the nature of the offense:

(1) The Legislature finds that the [Florida Supreme Court] cases ... holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession [ ] were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance.

This amendment thus eliminated from the Florida statutory scheme what had been, at the time of our Fequiere decision, a required element with the burden of proof resting on the government: mens rea with...