Rubens Aspilaire v. U.S. Attorney General ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12605
________________________
Agency No. A098-517-544
RUBENS ASPILAIRE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(April 6, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF, *
District Judge.
WILLIAM PRYOR, Chief Judge:
*
Honorable Tilman Eugene Self III, United States District Judge for the Middle District
of Georgia, sitting by designation.
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This petition for review requires us to decide whether a Florida conviction
for being a felon in possession of a firearm, Fla. Stat. § 790.23(1)(a), is
categorically an aggravated felony under the Immigration and Nationality Act, 8
U.S.C. § 1101(a)(43)(E)(ii). The Board of Immigration Appeals ordered Rubens
Aspilaire removed based on his Florida felon-in-possession conviction. Aspilaire
argues that his offense is not categorically an aggravated felony because Florida
law defines as “firearms” some weapons that would not be considered firearms for
purposes of federal law. Florida’s antique-firearm exception to its definition of a
firearm, Fla. Stat. § 790.001(6), does not apply when an antique firearm is used in
the commission of an offense, unlike the federal exception. And Florida’s antique-
firearm exception does not include all black-powder muzzleloaders, unlike the
federal exception. But Aspilaire does not point to his own case or any other
prosecution to establish that Florida prosecutes felons for possessing firearms that
fall within the federal antique-firearm exception, and Florida’s definition of a
firearm is not broader than the federal definition on its face. So we deny his
petition for review.
I. BACKGROUND
Rubens Aspilaire is a native and citizen of Haiti. He entered the United
States in 2006 and became a lawful permanent resident in 2007. In 2012, Aspilaire
was convicted in Florida of possession of marijuana and carrying a concealed
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firearm. He was sentenced to eight months in the county jail and two years of
probation.
After Aspilaire was arrested again in 2014 for violating his probation by
possessing a firearm, the Department of Homeland Security initiated removal
proceedings. Aspilaire explored options to avoid removal by adjusting his
immigration status. He was eventually released from custody in the spring of 2015,
and the removal proceedings against him were administratively closed.
But Aspilaire was arrested again in 2015 and charged by the State of Florida
with driving a motor vehicle without a valid license, resisting arrest, possessing 20
grams or less of marijuana, trafficking 28 grams or more of cocaine, being a felon
in possession of a firearm or ammunition or a concealed weapon, and possessing
heroin. The probable cause affidavit prepared in connection with the arrest
specified that Aspilaire possessed a “Springfield Armory . . . 9mm” “semi-
automatic handgun.” After a jury trial, he was convicted of “possession of [a]
weapon or ammo” by a felon and sentenced to 12 years of imprisonment.
Following Aspilaire’s felon-in-possession conviction, the government
moved to re-calendar the closed removal proceeding. It amended the charges
against Aspilaire to reflect the 2016 felon-in-possession conviction, which it
charged was an aggravated felony under the Immigration and Nationality Act.
Aspilaire moved to terminate the removal proceedings. He argued that his Florida
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felon-in-possession conviction could not trigger deportability for two reasons:
because the Florida statute, unlike the federal statute, “[r]elates to ammunition and
other non-firearm weapons,” namely “[e]lectric [w]eapons,” and because Florida’s
definition of a firearm “[i]ncorporates antique firearms specifically excluded from
the federal firearm definition.” The immigration judge denied the motion to
terminate the removal proceedings and later ordered Aspilaire removed to Haiti.
Aspilaire appealed the removal order to the Board of Immigration Appeals.
The Board dismissed the appeal based solely on Aspilaire’s 2016 felon-in-
possession conviction. It rejected Aspilaire’s “electric weapon” argument by
“‘peek[ing]’ at [his] conviction record” to determine “that [the statute of conviction
was] a divisible statute with respect to the types of weapons it covers.” So it
applied the modified categorical approach to look at the jury verdict and
determined that Aspilaire was convicted “of possessing a ‘firearm or ammunition’
to the exclusion of all other weapons,” consistent with the generic federal offense.
The Board then turned to Aspilaire’s antique-firearm arguments. Aspilaire
argued that Florida’s definition of a firearm was overbroad because its antique-
firearm definition did not include black-powder muzzleloaders like the federal
definition, and because it excluded weapons used in the commission of an offense,
unlike the federal definition. Citing Supreme Court dicta from Moncrieffe v.
Holder, 569 U.S. 184 (2013), the Board explained that Aspilaire could carry his
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burden only by pointing to exemplar prosecutions by Florida of antique weapons.
Because he failed to do so, it rejected his arguments.
Aspilaire petitioned for review, but the government moved to dismiss the
petition and remand for the Board to reconsider whether Moncrieffe requires an
alien to point to exemplar prosecutions involving antique firearms. We vacated the
removal order and remanded for further proceedings. On remand, the parties did
not pursue the Moncrieffe question, and the Board issued a new order dismissing
the appeal for the same reasons it dismissed the first appeal.
Aspilaire again petitioned for review. He maintains that “[t]he sole issue
presented in the instant petition” “is whether removal consequences may be
triggered where . . . the Florida ‘antique firearms’ exception is more narrow than
the federal exception” and where “the Florida offense permits conviction of a
‘firearms offense’ where an otherwise excepted ‘antique firearm’ is used in the
commission of an offense.” Neither party discusses the divisibility of Florida’s
felon-in-possession statute with respect to “electric weapons.”
II. STANDARD OF REVIEW
We review only the decision of the Board of Immigration Appeals, except to
the extent that the Board adopts the opinion of the immigration judge. Kazemzadeh
v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo
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whether a crime is an aggravated felony for purposes of the Immigration and
Nationality Act. Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383 (11th Cir. 2018).
III. DISCUSSION
We divide our discussion in three parts. First, we explain the categorical
approach and examine the relevant statutes. Then, we discuss Aspilaire’s
exemplar-prosecutions argument and conclude that none of the decisions he cites
establishes that Florida prosecutes felons for possessing firearms that would be
considered antique firearms under the federal definition. Finally, we discuss
Aspilaire’s statutory-language arguments and explain that Florida’s felon-in-
possession statute is not broader than the federal statute on its face.
A. The Categorical Approach and the Relevant Statutes.
Under the Immigration and Nationality Act, “[a]ny alien who is convicted of
an aggravated felony at any time after admission is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Act defines an “aggravated felony” to include the federal
felon-in-possession statute. Id. § 1101(a)(43)(E)(ii); 18 U.S.C. § 922(g)(1). And
the Act makes clear that “[t]he term [aggravated felony] applies to an offense . . .
whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43).
To determine whether a state-law conviction constitutes an aggravated
felony under the Act, we apply either the categorical or modified categorical
approach, depending on whether the state statute is divisible. Donawa v. U.S. Att’y
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Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). When a state statute is not divisible,
we apply the categorical approach and “confine [our] consideration only to the fact
of conviction and the statutory definition of the offense.” Id. “A state offense is an
aggravated felony for [Immigration and Nationality Act] purposes only if it
necessarily involves facts equating the generic federal offense.” Id. When a state
statute is divisible, we apply the modified categorical approach, under which 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.” Id. (internal quotation marks omitted).
The parties agree that the categorical approach applies to the question
presented in this petition for review. And in any event, the record does not include
any documents that we could use to sharpen our analysis of Aspilaire’s antique-
firearm arguments under the modified categorical approach. Additionally,
Aspilaire does not argue the Board erred by concluding “that [Florida’s felon-in-
possession statute was] a divisible statute with respect to the types of weapons it
covers” and using the modified categorical approach to reject his electric-weapons
argument. We express no opinion on the divisibility of the Florida statute.
Aspilaire argues that, under the categorical approach, a Florida felon-in-
possession conviction does not necessarily involve facts equating to a federal
felon-in-possession conviction because Florida law defines as “firearms” some
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weapons that would not be considered firearms for purposes of federal law. His
arguments involve the scope of both the Florida and the federal antique-firearm
exceptions.
For purposes of the federal felon-in-possession statute, 18 U.S.C.
§ 922(g)(1), a “firearm” is defined as follows:
(A) any weapon (including a starter gun) which will or is designed to
or may readily be converted to expel a projectile by the action of an
explosive; (B) the frame or receiver of any such weapon; (C) any
firearm muffler or firearm silencer; or (D) any destructive device. Such
term does not include an antique firearm.
Id. § 921(a)(3) (emphasis added). For purposes of the Florida felon-in-possession
statute, Fla. Stat. § 790.23(1)(a), a “firearm” is defined as follows:
any weapon (including a starter gun) which will, is designed to, or may
readily be converted to expel a projectile by the action of an explosive;
the frame or receiver of any such weapon; any firearm muffler or
firearm silencer; any destructive device; or any machine gun. The term
“firearm” does not include an antique firearm unless the antique
firearm is used in the commission of a crime.
Id. § 790.001(6) (emphasis added).
There is an obvious difference between the two antique-firearm exceptions.
A weapon may be considered an antique firearm under federal law—but not under
Florida law—if it is used in the commission of a crime. Aspilaire says the
overbreadth of Florida’s antique-firearm exception as applied to antique firearms
used in the commission of a crime means that his Florida felon-in-possession
offense is not categorically an aggravated felony.
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Federal law and Florida law also take different approaches to defining an
“antique firearm.” For purposes of federal law, an “antique firearm” is defined as:
(A) any firearm (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition system)
manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if
such replica—
(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed
ammunition which is no longer manufactured in the United
States and which is not readily available in the ordinary channels
of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle
loading pistol, which is designed to use black powder, or a black
powder substitute, and which cannot use fixed ammunition. For
purposes of this subparagraph, the term “antique firearm” shall not
include any weapon which incorporates a firearm frame or receiver, any
firearm which is converted into a muzzle loading weapon, or any
muzzle loading weapon which can be readily converted to fire fixed
ammunition by replacing the barrel, bolt, breechblock, or any
combination thereof.
18 U.S.C. § 921(a)(16).
Florida’s definition of an “antique firearm” is similar to the federal
definition—in fact, it is more generous to felons with respect to manufacture
dates—but it does not include a separate black-powder muzzleloader category:
“Antique firearm” means any firearm manufactured in or before 1918
(including any matchlock, flintlock, percussion cap, or similar early
type of ignition system) or replica thereof, whether actually
manufactured before or after the year 1918, and also any firearm using
fixed ammunition manufactured in or before 1918, for which
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ammunition is no longer manufactured in the United States and is not
readily available in the ordinary channels of commercial trade.
Fla. Stat. § 790.001(1). Aspilaire maintains that the fact that Florida’s antique-
firearm definition does not include black-powder muzzleloaders like the federal
definition means that a violation of Florida’s felon-in-possession statute is not
categorically an aggravated felony.
Determining that a state statute creates a crime outside the scope of a generic
federal crime “requires more than the application of legal imagination to a state
statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A
petitioner must show a “realistic probability” that a state would apply the statute in
the manner he suggests, which he may do by “point[ing] to his own case or other
cases in which the state courts in fact did apply the statute” to reach conduct not
covered by the equivalent federal statute. Id. Alternatively, a petitioner may
demonstrate that “statutory language itself, rather than the application of legal
imagination to that language, creates [a] realistic probability that a state would
apply the statute to conduct beyond” the reach of a federal statute. Ramos v. U.S.
Att’y. Gen., 709 F.3d 1066, 1072 (11th Cir. 2013) (internal quotation marks
omitted).
The Supreme Court has said in dicta that petitioners making antique-
firearms arguments may not rely on statutory language alone. See Moncrieffe, 569
U.S. at 205–06 (“To defeat the categorical comparison [by pointing to a state’s
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lack of an antique-firearm exception], a noncitizen [must] demonstrate that the
State actually prosecutes the relevant offense in cases involving antique
firearms.”). We have doubts that requiring exemplar prosecutions in cases
involving obviously overbroad language makes sense. But regardless of whether
the Moncrieffe dicta controls our decision, Aspilaire’s arguments fail. We first
discuss Aspilaire’s exemplar prosecutions before discussing his arguments about
the statutory language.
B. Aspilaire Is Not Entitled to Relief Based on Exemplar Prosecutions.
To show a “realistic probability” that a state statute reaches conduct not
covered by the equivalent federal statute, a petitioner may “point to his own case or
other cases in which the state courts in fact did apply the statute” in the manner he
suggests. Gonzales, 549 U.S. at 193. Aspilaire does not assert that his own felon-
in-possession conviction involved an antique firearm. But he does point to
exemplar prosecutions that he says establish Florida actually prosecutes felons for
possession of federal antique firearms.
Aspilaire makes two arguments. We first discuss the exemplar prosecutions
Aspilaire presents in support of his argument that Florida’s treatment of antique
firearms “used in the commission of a crime,” Fla. Stat. § 790.001(6), exposes
felons to criminal liability for possessing federal antique firearms. We then discuss
the exemplar prosecutions he presents in support of his argument that Florida’s
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antique-firearm exception is narrower than the federal exception because it does
not cover all black-powder muzzleloaders.
1. Aspilaire Does Not Point to Exemplar Prosecutions of Felons for Mere
Possession of Federal Antique Firearms.
Aspilaire argues that Florida’s exclusion from its antique-firearm exception
of firearms “used in the commission of a crime,” id., means that under Florida law,
unlike federal law, “an antique loses its exempted status if it merely is in the hands
of a felon.” Aspilaire points to two exemplar prosecutions to support his argument:
Margiotti v. State, 844 So. 2d 829, 830 (Fla. Dist. Ct. App. 2003), and Williams v.
State, 492 So. 2d 1051, 1054 (Fla. 1986), receded from by State v. Weeks, 202 So.
3d 1 (Fla. 2016). Neither decision establishes that Florida prosecutes felons for the
mere possession of federal antique firearms.
Margiotti does not help Aspilaire because the prosecution did not involve
Florida’s felon-in-possession statute at all. The court explained that “[d]uring [a]
burglary, the defendant used an antique, inoperable firearm.” 844 So. 2d at 830
(emphasis added). Florida law provides for a mandatory minimum sentence when a
firearm is possessed during the commission of a burglary. Fla. Stat.
§ 775.087(2)(a)1.d. Margiotti held that an antique firearm counts as a firearm for
the purpose of triggering a mandatory minimum sentence. 844 So. 2d at 831. The
decision has no bearing on Florida’s felon-in-possession statute, so it does not help
Aspilaire.
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Williams is at least on point, but it does not help Aspilaire either. In
Williams, the Florida Supreme Court affirmed a felon-in-possession conviction and
rejected the defendant’s antique-firearm argument because the court “[did] not
believe that the legislature . . . intended that a convicted felon could be acquitted
when possessing a concealed, loaded weapon by using the excuse that the weapon
is an antique or a replica thereof.” 492 So. 2d at 1051, 1054. It continued, “This
literal requirement of the statute exhalts form over substance to the detriment of
public policy, and such a result is clearly absurd.” Id. at 1054.
But Williams is also useless to Aspilaire because it is no longer good law. In
Weeks, the Florida Supreme Court held that a defendant “was entitled to the
statutory exception of the felon-in-possession statute because his firearm was a
permissible ‘replica’ of an ‘antique firearm.’” 202 So. 3d at 9–10. And it receded
from the Williams decision to the extent the statutory interpretation in that decision
was inconsistent. Id. at 9. Weeks does more than undermine Aspilaire’s only on-
point exemplar prosecution; it proves that Florida does not expose felons to
criminal liability for mere possession of an antique firearm.
Aspilaire argues that Weeks cannot apply retroactively to deprive him of the
benefit of Williams because he was convicted before Weeks was decided, but his
argument misunderstands the nature of judicial decisions. “Judicial decisions have
had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co.,
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215 U.S. 349, 372 (1910) (Holmes, J., dissenting); see also Bryan A. Garner et al.,
The Law of Judicial Precedent § 37, at 308–10 (2016). So “[a] judicial
construction of a statute is an authoritative statement of what the statute meant
before as well as after the decision of the case giving rise to that construction.”
Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994). When a court
corrects a wrong interpretation of a statute, “it is not accurate to say that [the
decision] ‘changed’ the law.” Id. at 313 n.12; see also Lester v. United States, 921
F.3d 1306, 1312 (11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing
en banc) (“[W]e [must] be mindful of the difference between a change in judicial
doctrine and a change in law.”). The same principle applies under Florida law. See
Hester v. State, 267 So. 3d 1084, 1086 (Fla. Dist. Ct. App. 2019) (quoting Rivers,
511 U.S. at 313 n.12). The prosecution in Williams was never valid under Florida
law, so Aspilaire may not rely on it as an example of how Florida law applies.
2. Aspilaire Does Not Point to Exemplar Prosecutions of Felons for
Possessing Black-Powder Muzzleloaders.
Aspilaire also argues that Florida’s antique-firearm exception is narrower
than the federal exception because it does not cover all black-powder
muzzleloaders. He points to two exemplar prosecutions to support his argument:
Weeks, 202 So. 3d 1, and Bostic v. State, 902 So. 2d 225 (Fla. Dist. Ct. App. 2005),
disapproved of by Weeks, 202 So. 3d 1. Neither decision establishes that Florida
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prosecutes felons for possessing black-powder muzzleloaders that would be
considered antique firearms under federal law.
As we have already discussed, Weeks cuts against Aspilaire’s argument. The
Florida Supreme Court held that the black-powder muzzleloader possessed by the
defendant was considered an antique firearm under Florida law, and it reversed his
felon-in-possession conviction. 202 So. 3d at 9–10. In doing so, the Florida
Supreme Court disapproved of the intermediate court’s contrary decision in Bostic,
the other decision Aspilaire cites as an exemplar prosecution, and established that
the Bostic prosecution was unlawful. Id. at 9. For the same reasons he cannot rely
on the repudiated Williams decision, Aspilaire cannot rely on Bostic.
Aspilaire was required to support his antique-firearm arguments by pointing
to successful Florida felon-in-possession prosecutions involving federal antique
firearms. Moncrieffe, 569 U.S. at 206. But the decisions he cites involved
prosecutions for other crimes, Margiotti, 844 So. 2d at 830; unsuccessful
prosecutions, Weeks, 202 So. 3d at 9–10; or unlawful prosecutions based on the
misapplication of Florida law, Williams, 492 So. 2d at 1054, receded from by
Weeks, 202 So. 3d 1; Bostic, 902 So. 2d at 228–29, disapproved of by Weeks, 202
So. 3d 1. So he has not satisfied his burden.
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C. Aspilaire Is Not Entitled to Relief Based on the Statutory Language.
Aspilaire also argues he is entitled to relief because Florida’s definition of a
firearm is broader than the federal definition on its face, so that “the statutory
language itself . . . creates the realistic probability that [Florida] would apply [its
felon-in-possession] statute to conduct beyond” the reach of the federal statute.
Ramos, 709 F.3d at 1072. [Bl. Br. at 27–28]. Even assuming that Aspilaire may
rely solely on the statutory language without pointing to exemplar prosecutions,
see Moncrieffe, 569 U.S. at 205–06, his arguments are based on “the application of
legal imagination” to Florida’s antique-firearm exception, not a “realistic
probability” of prosecution created by “the statutory language itself.” Ramos, 709
F.3d at 1072 (internal quotation marks omitted). So he is not entitled to relief.
Start with Aspilaire’s argument that Florida’s felon-in-possession statute is
overbroad based on the exclusion of antique firearms “used in the commission of a
crime” from Florida’s antique-firearm exception. Fla. Stat. § 790.001(6). Aspilaire
says this difference means that “Florida punishes [the possession of] an otherwise-
qualifying antique firearm . . . even in offenses as simple as ‘felon in possession.’”
Aspilaire’s interpretation of the phrase “used in the commission of a crime” is
linguistically implausible. Cf. Bailey v. United States, 516 U.S. 137, 142–43 (1995)
(holding that the word “uses” in the phrase “during and in relation to any crime of
violence or drug trafficking crime, uses or carries a firearm,” “must connote more
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than mere possession” (alteration adopted) (internal quotation marks omitted)).
And the Florida Supreme Court rejected his interpretation when it concluded that a
felon was entitled to the benefit of the antique-firearm exception in Weeks. 202 So.
3d at 9–10.
“The ordinary meaning[] of the word[] ‘use[’] . . . connote[s] activity beyond
simple possession.” Bailey, 516 U.S. at 145 (alteration adopted) (internal quotation
marks omitted). And that ordinary meaning applies in the context of Florida’s
criminal code. Florida law draws a clear distinction between the “use” and
“possession” of a firearm. See Fla. Stat. § 775.087(2)(a)1. (“Any person who is
convicted of [an enumerated] felony . . . , regardless of whether the use of a
weapon is an element of the felony, . . . and during the commission of the offense,
such person actually possessed a ‘firearm’ . . . , shall be sentenced to a minimum
term of imprisonment of 10 years[.]” (emphasis added)). Aspilaire’s “use”
argument does not find support in “the statutory language itself.” Ramos, 709 F.3d
at 1072.
Next, consider Aspilaire’s argument that Florida’s felon-in-possession
statute is overbroad because Florida’s antique-firearm exception does not cover all
black-powder muzzleloaders. To be sure, Florida does not classify muzzleloaders
as antique firearms on the same basis as the federal government. The federal
government defines antique firearms partially by reference to their loading
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configurations and propellants. 18 U.S.C. § 921(a)(16)(C) (defining as an antique
firearm “any muzzle loading rifle . . . designed to use black powder, or a black
powder substitute”). Florida instead defines antique firearms partially by reference
to their ignition systems. Weeks, 202 So. 3d at 9 (“[S]ection 790.001(1)
emphasizes the ignition system as the distinctive feature of an ‘antique firearm,’
and therefore requires that the firearm possess a certain type of ignition system
explicitly mentioned by the statute.”). Aspilaire assumes the Florida ignition-
system approach fails to cover weapons covered by the federal loading-
configuration-and-propellant approach.
But both approaches lead to the same results. Gunsmiths cannot freely
combine different propellants and ignition systems—firearms technologies work
only in specific combinations. Black-powder muzzleloaders generally use a
“matchlock, flintlock, percussion cap, or similar early type of ignition system,”
Fla. Stat. § 790.001(1), so they are typically considered antique firearms under
Florida law by virtue of their ignition systems, see Toby Bridges, Muzzleloading
12–21 (1997) (tracing the history of “muzzleloader ignition systems” through the
“matchlock, wheellock, snaphaunce, miquelet, flintlock, percussion caplock[,] and
in-line percussion caplock”). In fact, Florida’s unlawful prosecutions of black-
powder weapons involved a “black powder muzzleloader rifle with a percussion
cap ignition system,” Weeks, 202 So. 3d at 3 (emphasis added), and “an in-line
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percussion-cap, black-powder weapon,” Bostic, 902 So. 2d at 230 (Sharp, J.,
dissenting) (emphasis added).
To be sure, changes in firearms technology could create close questions
under Florida’s ignition-system approach. See, e.g., Mod. Muzzleloading, Inc. v.
Magaw, 18 F. Supp. 2d 29, 36–37 (D.D.C. 1998) (deferring to agency
interpretation that classified primer-based ignition system as non-antique); U.S.
Patent No. 7,197,843 B2 (patent for electronic black-powder ignition system). But
dreaming up hypothetical weapons designed to probe the boundaries of a state’s
antique-firearm exception involves “the application of legal imagination.” Ramos,
709 F.3d at 1072 (internal quotation marks omitted). The possibility of close
questions in future cases does not prove that “the statutory language . . . creates the
realistic probability that [Florida] would apply the statute to conduct beyond” the
reach of the federal statute. Id. (internal quotation marks omitted). Florida’s felon-
in-possession statute is not broader than the federal statute on its face, so Aspilaire
is not entitled to relief based on the statutory language.
IV. CONCLUSION
We DENY Aspilaire’s petition for review.
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