Gordon v. U.S. Attorney Gen., No. 18-14513

• Decision Date: 24 June 2020
• Docket Number: No. 18-14513
• Citation: 962 F.3d 1344
• Parties: Keefe GORDON, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

962 F.3d 1344

Keefe GORDON, Petitioner,

v.UNITED STATES ATTORNEY GENERAL, Respondent.

No. 18-14513

United States Court of Appeals, Eleventh Circuit.

June 24, 2020

Benjamin J. Osorio, Murray Osorio, PLLC, Fairfax, VA, for Petitioner.

Melissa Katherine Lott, Erica B. Miles, U.S. Department of Justice Civil Division, Office of Immigration Litigation, WASHINGTON, DC, Alfie Owens, DHS/ICE Office of Chief Counsel - ATL, Atlanta, GA, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX9-370

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit Judges.

JILL PRYOR, Circuit Judge:

Keefe Gordon, a native and citizen of Jamaica, petitions for review of the Board of Immigration Appeals’ ("BIA") order affirming an Immigration Judge's ("IJ") determination that his prior state conviction qualified as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), rendering him removable and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). After careful review, and with the benefit of oral argument, we deny Gordon's petition for review of the BIA's decision.

I. BACKGROUND

Gordon was admitted to the United States as a lawful permanent resident in 1995. Beginning about eight years later, he was convicted of various offenses in Georgia. These included convictions in 2003 for possession with intent to distribute ecstasy, in violation of O.C.G.A. § 16-13-30(b) and (d), and obstruction of a police officer, in violation of O.C.G.A. § 16-10-24(a), and convictions in 2006 for possession of cocaine, in violation of O.C.G.A. § 16-13-30(b) ; possession of a firearm by a felon, in violation of O.C.G.A. § 16-11-131 ; and theft by receipt of stolen property, in violation of O.C.G.A. § 16-8-7.

In 2017, the Department of Homeland Security ("DHS") charged Gordon as removable based on his convictions for an aggravated felony involving a drug trafficking crime, 8 U.S.C §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii) ; an aggravated felony involving possession of a firearm by a convicted felon, id. §§ 1101(a)(43)(E), 1227(a)(2)(A)(iii) ; a controlled substance offense, id. § 1227(a)(2)(B)(i) ; a firearms offense, id. § 1227(a)(2)(C) ; and two crimes involving moral turpitude, id. § 1227(a)(2)(A)(ii).¹ Gordon denied the government's allegations of fact and that he had an aggravated felony and argued that he was not removable as charged. He further argued that even if he were to be found removable, he would be eligible for cancellation of removal as a lawful permanent resident under 8 U.S.C. § 1229b(a). Section 1229b(a) permits cancellation of removal for a noncitizen who has: (1) been a lawful permanent resident for at least five years, (2) "has resided in the United States continuously for 7 years after having been admitted in any status," and (3) "has not been convicted of any aggravated felony." Id. Because Gordon met the first two requirements of § 1229b(a), his removability turned ultimately on whether he had been convicted of an aggravated felony.

After a hearing, an IJ determined that Gordon was removable for having been convicted of an aggravated felony, specifically, his 2003 conviction for possession with intent to distribute the drug "ecstasy," because that offense was a drug trafficking crime involving a substance listed on the schedules to the federal Controlled Substances Act ("CSA").² See id. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). The IJ acknowledged Gordon's argument that O.C.G.A. § 16-13-30 encompassed more substances than those found on the federal schedules and thus was broader than the CSA. But the IJ concluded that he could look to Gordon's record of conviction to determine the substance that was involved. Looking to Gordon's record of conviction, the IJ found that he pled guilty to, and was convicted of, possession with intent to distribute ecstasy.

The IJ then determined that Gordon's conviction under § 16-13-30 was a drug trafficking crime and therefore an aggravated felony because ecstasy was a controlled substance under both Georgia and federal law. Based on that determination, the IJ concluded that Gordon was removable and, because his conviction was an aggravated felony, he was ineligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). The IJ ordered him removed to Jamaica.

Gordon appealed the IJ's decision to the BIA, arguing that he had not been convicted of an aggravated felony or a controlled substance violation and that he was eligible for cancellation of removal. The BIA disagreed. It concluded that his 2003 conviction for possession with intent to distribute ecstasy was an aggravated felony, rendering him ineligible for cancellation of removal, and dismissed his appeal. Gordon petitioned our Court for review of the BIA's decision.

II. STANDARDS OF REVIEW

We review the BIA's decision alone where, as here, it did not expressly adopt the IJ's opinion or reasoning. Imelda v. U.S. Att'y. Gen. , 611 F.3d 724, 727 (11th Cir. 2010). We review questions of law, such as whether a conviction qualifies as an aggravated felony, de novo . Spaho v. U.S. Att'y Gen. , 837 F.3d 1172, 1176 (11th Cir. 2016).

III. DISCUSSION

A noncitizen convicted of "an aggravated felony" is removable. See 8 U.S.C. § 1227(a)(2)(A)(iii). The term "aggravated felony" includes a conviction for a "drug trafficking crime," which is defined as "any felony punishable under the Controlled Substances Act." See id. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). If Gordon's conviction qualifies as an aggravated felony, he is both removable and ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). The question we must address in this appeal is whether the BIA correctly determined that Gordon's 2003 conviction under O.C.G.A. § 16-13-30 for possession with intent to distribute ecstasy qualified as a "felony punishable under the Controlled Substances Act" and thus as an aggravated felony involving a drug trafficking crime.

Courts analyzing whether a conviction under a state statute qualifies as an aggravated felony "apply a categorical or modified categorical approach, depending on the statutory scheme." Donawa v. U.S. Att'y Gen. , 735 F.3d 1275, 1280 (11th Cir. 2013). Under the categorical approach, a court is permitted to examine 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 , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (internal quotation marks omitted).

If the state statute is broader, meaning that it does not fit entirely within the generic federal definition of a corresponding aggravated felony, a court may look to whether the state statute is "divisible." A statute is divisible if it "lists a number of alternative elements that effectively create several different crimes." Guillen v. U.S. Att'y Gen. , 910 F.3d 1174, 1180 (11th Cir. 2018) (internal quotation marks omitted). A divisible statute "permit[s] the use of the modified categorical approach to uncover whether [a person's] convictions relate to a federally controlled substance." Id . at 1179. Under the modified categorical approach, a court may look to a small set of record documents, commonly referred to as " Shepard documents," to determine the elements of the defendant's offense of conviction. See Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; Guillen , 910 F.3d at 1180. Shepard documents can consist of "a plea agreement, the transcript of a plea colloquy, the charging document, jury instructions, or a comparable judicial record of this information." Guillen , 910 F.3d at 1180 (internal quotation marks omitted) (citing Shepard , 544 U.S. at 26, 125 S.Ct. 1254 ; Descamps v. United States , 570 U.S. 254, 262, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ).

Gordon argues that his offense involving ecstasy does not qualify as an aggravated felony because § 16-13-30 is broader than the federal CSA and is indivisible. Therefore, he argues, we cannot look to his record of conviction to determine what substance the conviction involved. He further argues that even if we could look to his record of conviction, it reveals that he possessed ecstasy, which is not a federally controlled substance. We discuss each of Gordon's arguments in turn.

A. Georgia Statute § 16-13-30(b) Is Divisible.

The parties agree that § 16-13-30 encompasses substances that are not included on the schedules to the CSA; therefore, not all convictions under the Georgia statute categorically constitute aggravated felonies involving drug trafficking crimes. See Descamps , 570 U.S. at 261, 133 S.Ct. 2276. We agree with the parties. To determine whether Gordon's statute of conviction qualifies as an aggravated felony, then, we must first evaluate whether the statute is divisible.

Gordon argues that § 16-13-30 ’s list of controlled substances in its Schedules I and II are means of committing the offense rather than different elements and therefore the statute is indivisible as to the identity of the controlled substance. Georgia case law, however, indicates that the controlled substance is an element of the offense, rendering § 16-13-30 divisible.

It is "easy" to determine whether a statute sets forth alternative elements or means where "the statute on its face" resolves the issue or "a state court decision definitively answers the question." Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2256, 195 L.Ed.2d 604 (2016). In Guillen , we analyzed whether a Florida statute that contained a list of controlled substances, like the Georgia statute here, set forth alternative elements or means. Guillen , 910 F.3d at 1179-84. We looked to Florida case law because, as is also true here, "the statute on its face fail[ed] to provide a clear answer on divisibility." Id. at 1181-82. We held that Florida case law implied that the statute was divisible because it permitted a defendant to be...