Andres Paez Sarmientos v. Eric Holder, Jr. ( 2014 )


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  •      Case: 13-60086    Document: 00512530168     Page: 1   Date Filed: 02/12/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-60086                     February 12, 2014
    Lyle W. Cayce
    ANDRES PAEZ SARMIENTOS,                                                   Clerk
    Petitioner,
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
    Respondent.
    Petition for Review of an Order of the
    Board of Immigration Appeals
    Before REAVLEY, PRADO, and OWEN, Circuit Judges.
    PRISCILLA R. OWEN, Circuit Judge:
    Andres Paez Sarmientos petitions for review from an order of the Board
    of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s)
    determination that he is not eligible for cancellation of removal because he
    committed an aggravated felony. Because we hold that the Florida offense of
    which Paez Sarmientos was convicted is not categorically an aggravated
    felony, we grant the petition, vacate the order, and remand for further
    proceedings.
    I
    Paez Sarmientos, a native and citizen of Mexico, was admitted to the
    United States as a lawful permanent resident in December 1990. In 2005, he
    pleaded guilty to delivering cocaine in violation of Florida Statute
    Case: 13-60086         Document: 00512530168            Page: 2      Date Filed: 02/12/2014
    No. 13-60086
    § 893.13(1)(a)(1). 1       The trial judge withheld the adjudication of guilt and
    ordered that Paez Sarmientos serve one day in jail and be placed on 24 months
    of supervised probation. For federal immigration purposes, a state guilty plea
    accompanied by some form of punishment is a conviction, 2 and we thus refer
    to Paez Sarmientos’s Florida offense as a conviction.
    After a trip abroad, in May 2012, Paez Sarmientos sought to return to
    the United States and applied for admission as a lawful permanent resident at
    Laredo, Texas. The U.S. Department of Homeland Security (DHS) denied him
    admission and initiated removal proceedings based on the 2005 Florida
    conviction.       DHS alleged that Paez Sarmientos was removable, under
    Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(II), as an alien
    convicted of violating a controlled substance law because of his conviction of
    cocaine delivery. 3
    The IJ agreed with DHS. In an oral decision, the IJ first concluded Paez
    Sarmientos was inadmissible because he was convicted of violating a controlled
    substance law. The IJ also denied Paez Sarmientos’s request to apply for
    cancellation of removal under 8 U.S.C. § 1229b(a), concluding that Paez
    Sarmientos had been convicted of an aggravated felony. 4 Paez Sarmientos had
    1 FLA. STAT. ANN. § 893.13(1)(a) (providing, “it is unlawful for any person to sell,
    manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled
    substance”). Subsection 893.13(1)(a)(1) states that a person commits a felony of the second
    degree if the offense involves, among other substances, cocaine. Id. § 893.13(1)(a)(1) (citing
    § 893.03(2)(a), where cocaine is listed as a Schedule II controlled substance).
    2   See 
    8 U.S.C. § 1101
    (a)(48)(A).
    3 INA § 212(a)(2)(A)(i)(II), codified at 
    8 U.S.C. § 1182
    (a)(2)(A)(i)(II), provides, “any
    alien convicted of, or who admits having committed, or who admits committing acts which
    constitute the essential elements of . . . a violation of . . . any law or regulation of a State . . .
    relating to a controlled substance . . . is inadmissible.”
    4  8 U.S.C. § 1229b(a) (providing that an alien who is inadmissible may seek
    cancellation of removal from the Attorney General if the alien has been a lawfully admitted
    permanent resident for not less than 5 years, has resided in the United States continuously
    for 7 years after having been admitted, and has not been convicted of an aggravated felony).
    2
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    contended that the Florida offense of cocaine delivery was broader than a
    federal drug trafficking offense under 
    8 U.S.C. § 1101
    (a)(43)(B), which is an
    aggravated felony, because the Florida statute did not have the same mens rea
    requirement as the federal law.
    In rejecting Paez Sarmientos’s position, the IJ noted that, unlike the
    federal offense of distribution of a controlled substance, the Florida statute
    placed the burden on the defendant to prove he lacked knowledge of the illicit
    nature of the controlled substance as an affirmative defense. The IJ reasoned
    that there was no significant distinction between the Florida crime and the
    federal offense even though Florida treats knowledge of the illicit nature of the
    substance as an affirmative defense rather than as a traditional element of the
    crime that the prosecution must prove beyond a reasonable doubt.          The IJ
    accordingly concluded that Paez Sarmientos was ineligible for cancellation of
    removal.
    Paez Sarmientos appealed to the BIA, challenging the IJ’s decision to
    deny him the opportunity to seek cancellation of removal. In considering the
    argument that the Florida offense did not contain the same mens rea
    requirement as the federal offense and was therefore not categorically an
    aggravated felony, the BIA acknowledged that the Florida statute converted
    “knowledge of the illicit nature of the substance . . . from an element into an
    affirmative defense.” However, the BIA concluded that the Florida statute was
    “sufficiently analogous to the federal felony offense of distribution of a
    controlled substance,” an aggravated felony. The BIA thus agreed with the IJ
    that Paez Sarmientos was not eligible for cancellation of removal and
    dismissed his appeal. A petition for review was filed in this court.
    3
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    II
    Although 
    8 U.S.C. § 1252
    (a)(2)(C) provides “that no court has jurisdiction
    to review deportation orders for aliens who are removable because they were
    convicted of aggravated felonies,” 5 § 1252(a)(2)(D) provides that we may review
    claims raising constitutional or purely legal questions. 6 The issue of whether
    Paez Sarmientos’s Florida offense constitutes a conviction for an aggravated
    felony is a purely legal question and we therefore have jurisdiction to consider
    it. 7 This question of law is reviewed de novo. 8 We give deference to the BIA’s
    interpretation of the statutes and regulations that it enforces, but no deference
    is afforded in reviewing the BIA’s interpretation of state criminal law. 9 “We
    may not affirm the BIA’s decision except on the basis of the reasons it
    provided.” 10
    III
    The INA defines “aggravated felony” as, among other offenses, “illicit
    trafficking in a controlled substance (as defined in section 802 of Title 21),
    including a drug trafficking crime (as defined in section 924(c) of Title 18).” 11
    We are concerned today only with a “drug trafficking crime (as defined in [
    18 U.S.C. § 924
    (c)]).” The term “drug trafficking crime” is defined under 
    18 U.S.C. § 924
    (c) to encompass “any felony punishable under the Controlled Substances
    5 Rodriguez v. Holder, 
    705 F.3d 207
    , 210 (5th Cir. 2013) (internal quotation marks
    omitted).
    6   See 
    8 U.S.C. § 1252
    (a)(2)(D); Zhu v. Gonzales, 
    493 F.3d 588
    , 594-95 (5th Cir. 2007).
    7   See Rodriguez, 705 F.3d at 210.
    8   Id.
    9 Dale v. Holder, 
    610 F.3d 294
    , 301-02 (5th Cir. 2010); Larin-Ulloa v. Gonzales, 
    462 F.3d 456
    , 461 n.7 (5th Cir. 2006).
    10   Rodriguez-Barajas v. Holder, 
    624 F.3d 678
    , 679 (5th Cir. 2010).
    11   
    8 U.S.C. § 1101
    (a)(43)(B).
    4
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    Act.” 12 A felony under federal law is an offense for which “the maximum term
    of imprisonment authorized” is “more than one year.” 13 An offense punishable
    under the Controlled Substances Act by more than one year’s imprisonment
    will be treated as an aggravated felony for immigration purposes. 14 The INA’s
    definition of an “aggravated felony” further provides that the term “applies to
    an offense described in this paragraph whether in violation of Federal or State
    law.” 15 The Supreme Court has explained that a conviction under state law
    “may qualify, but a ‘state offense constitutes a “felony punishable under the
    Controlled Substances Act” only if it proscribes conduct punishable as a felony
    under that federal law.’” 16
    As the Supreme Court explained in Moncrieffe v. Holder, 17 we generally
    employ a categorical approach to determine whether a state offense proscribes
    conduct punishable as a felony under the Controlled Substances Act. 18 Under
    the categorical approach, “we look not to the facts of the particular prior case,
    but instead to whether the state statute defining the crime of conviction
    categorically fits within the generic federal definition of a corresponding
    aggravated felony.” 19 “[A] state offense is a categorical match with a generic
    federal offense only if a conviction of the state offense necessarily involved facts
    equating to the generic federal offense.” 20 Accordingly, “[b]ecause we examine
    12   
    18 U.S.C. § 924
    (c)(2).
    13   
    18 U.S.C. § 3559
    (a).
    14   Moncrieffe v. Holder, 
    133 S. Ct. 1678
    , 1683 (2013).
    15   
    8 U.S.C. § 1101
    (a)(43).
    16   Moncrieffe, 
    133 S. Ct. at 1683
     (quoting Lopez v. Gonzales, 
    549 U.S. 47
    , 60 (2006)).
    17   
    133 S. Ct. 1678
     (2013).
    18   Moncrieffe, 
    133 S. Ct. at
    1684-85 (citing Nijhawan v. Holder, 
    557 U.S. 29
    , 33-38
    (2009)).
    19   Id. at 1684 (internal quotation marks omitted).
    20   Id. (internal quotation marks and brackets omitted).
    5
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    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.” 21 The Supreme Court identified
    qualifications to this approach, which include modifying the categorical
    approach when a state statute contains several different crimes, and
    recognizing that when focusing on the minimum conduct criminalized by the
    state statute, “there must be a realistic probability, not a theoretical
    possibility, that the State would apply its statute to conduct that falls outside
    the generic definition of a crime.” 22
    In Descamps v. United States, 23 the Supreme Court made clear that the
    modified categorical approach described above may only be applied when the
    statute of conviction contains multiple crimes set forth as alternative
    elements. 24 In such a case, we may look to a limited class of documents to
    determine which of the alternative offenses was the basis of the defendant’s
    conviction. 25     When a prior conviction is based on an indivisible statute,
    meaning “one not containing alternative elements,” that “criminalizes a
    broader swath of conduct than the relevant generic offense,” a court cannot
    look beyond the elements set forth in the statute. 26
    The Florida statute of conviction in the present case was divisible, as it
    criminalized various discrete acts. 27 We know from the charging document and
    21   Id. (internal quotation marks and brackets omitted).
    22   Id. at 1685 (internal quotation marks omitted).
    23   
    133 S. Ct. 2276
     (2013).
    24   See Descamps, 
    133 S. Ct. at 2284-86
    .
    25   
    Id. at 2285
    .
    26   
    Id.
    27   FLA. STAT. ANN. § 893.13(1)(a).
    6
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    the plea agreement in this case that Paez Sarmientos pleaded guilty to the
    provisions of the Florida statute criminalizing delivery of cocaine.                    28   The
    specific federal drug trafficking crime that the BIA considered analogous to the
    Florida crime was distribution of a controlled substance under 
    21 U.S.C. § 841
    (a)(1). Section 841(a)(1) provides that “it shall be unlawful for any person
    knowingly or intentionally . . . to manufacture, distribute, or dispense, or
    possess with intent to manufacture, distribute, or dispense, a controlled
    substance.” 29 Under this provision, “distribute” means “to deliver,” 30 cocaine
    is classified as a controlled substance, 31 and cocaine distribution is punishable
    as a felony. 32 Federal law is clear that, to be convicted under § 841(a)(1), the
    prosecutor must prove beyond a reasonable doubt that the defendant knew
    that the substance he manufactured, distributed, dispensed, or possessed was
    a controlled substance of some kind. 33
    The Florida crime to which Paez Sarmientos pleaded guilty, Florida
    Statute § 893.13(1)(a), provides that “it is unlawful for any person to sell,
    manufacture, or deliver, or possess with intent to sell, manufacture, or deliver,
    28 See Moncrieffe, 
    133 S. Ct. at 1685
     (“We know from his plea agreement that
    Moncrieffe was convicted of the last of these offenses [listed in a similar Georgia statute].”)
    (citing Shepard v. United States, 
    544 U.S. 13
    , 26 (2005)).
    29   
    21 U.S.C. § 841
    (a)(1).
    30   
    Id.
     § 802(11).
    31   Id. § 812(c).
    32   See id. § 841(b)(1)(C).
    33 See United States v. Gamez-Gonzalez, 
    319 F.3d 695
    , 699-700 (5th Cir. 2003)
    (recognizing that a conviction under § 841(a)(1) requires knowledge that the substance was
    a controlled substance, but rejecting the argument that knowledge of the exact drug type or
    quantity is an element of the offense); see also United States v. Sanders, 
    668 F.3d 1298
    , 1309
    (11th Cir. 2012) (“The § 841(a) offense is complete once the person commits the proscribed
    act and knows that the substance is a ‘controlled substance.’”); United States v. Abdulle, 
    564 F.3d 119
    , 125-26 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the
    exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he [or she]
    be aware that he [or she] possesses some controlled substance.”).
    7
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    a controlled substance.” 34 Subsection 893.13(1)(a)(1) outlines the penalties for
    an offense involving the controlled substance of cocaine. 35 The Florida statute
    does not specify what mental state is necessary to obtain a conviction. 36 The
    Florida Supreme Court, in Chicone v. State, 37 held that to convict a defendant
    of possession of a controlled substance under § 893.13, the prosecution had to
    prove “guilty knowledge,” including that the defendant knew he possessed the
    substance and knew of the illicit nature of the substance. 38                     The Florida
    Supreme Court reaffirmed this holding in Scott v. State. 39                       However, in
    response to these decisions, the Florida Legislature in 2002 enacted Florida
    Statute § 893.101, which provides as follows:
    (1) The Legislature finds that the cases of [Scott and Chicone]
    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. . . . 40
    34   FLA. STAT. ANN. § 893.13(1)(a).
    35 Id. § 893.13(1)(a)(1) (citing id. § 893.03(2)(a), where cocaine is listed as a Schedule
    II controlled substance).
    36   State v. Adkins, 
    96 So. 3d 412
    , 415 (Fla. 2012).
    37   
    684 So. 2d 736
     (Fla. 1996).
    38   Chicone, 
    684 So. 2d at 743-44
    ; see also Adkins, 
    96 So. 3d at 415
     (discussing Chicone).
    39   
    808 So. 2d 166
    , 169-70 (Fla. 2002).
    40   FLA. STAT. ANN. § 893.101.
    8
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    Section 893.101 “thus expressly eliminates knowledge of the illicit nature of
    the controlled substance as an element of controlled substance offenses and
    expressly creates an affirmative defense of lack of knowledge of the illicit
    nature of the substance.” 41
    Paez Sarmientos argues that a conviction under § 893.13(1)(a)(1), as
    modified by § 893.101, does not require that the defendant knew that the
    substance at issue was a controlled substance whereas conviction under the
    federal statute does. He asserts that, contrary to the BIA’s reasoning, his 2005
    state conviction for delivery of cocaine is therefore not analogous to the federal
    offense of distribution of a controlled substance. We agree.
    Although this question is a matter of first impression in this circuit, 42 we
    find persuasive the reasoning of the Eleventh Circuit in Donawa v. U.S.
    Attorney General. 43 There, the court held that § 893.13 is not an aggravated
    felony for immigration purposes. 44 The case involved possession of cannabis
    with intent to sell or deliver, 45 not delivery of cocaine as here, but the analysis
    applies equally to this case. As the Eleventh Circuit explained, “[u]nder the
    categorical approach, it is clear that the ‘least of the acts criminalized’ [by the
    41Adkins, 
    96 So. 3d at 416
    . In State v. Adkins, the Florida Supreme Court held that
    it was not unconstitutional to convert “knowledge of the illicit nature of the controlled
    substance” from an element of the Florida crime to an affirmative defense through Florida
    Statute § 893.101. Id. at 423.
    42 In unpublished decisions, this court has held that § 893.13(1)(a) is a drug trafficking
    crime and therefore an aggravated felony for immigration purposes. But these decisions did
    not address the argument that Paez Sarmientos raises here: that the Florida statute does
    not require knowledge of the illicit nature of the controlled substance. See Davis v. Holder,
    514 F. App’x 517, 518 (5th Cir. 2013) (unpublished); Jackson v. Holder, 487 F. App’x 181, 181
    (5th Cir. 2012) (unpublished).
    
    735 F.3d 1275
     (11th Cir. 2013). This decision was issued after the parties’ briefing
    43
    was completed, but Paez Sarmientos brought it to our attention in a Rule 28(j) letter.
    44   Donawa, 735 F.3d at 1283.
    45   Id. at 1278.
    9
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    Florida statute] does not necessarily violate 
    21 U.S.C. § 841
    (a)(1).” 46 This is
    because, although a person could be convicted under the Florida statute
    without any knowledge of the illicit nature of the substance he possesses, the
    same person could not be convicted of drug trafficking under 
    21 U.S.C. § 841
    (a)(1). 47 Applying the same logic here, the least of the acts criminalized
    by the delivery of cocaine crime under Florida Statute § 893.13(1)(a)(1) does
    not necessarily violate the federal cocaine distribution statute since the federal
    offense requires the prosecution to prove beyond a reasonable doubt an element
    that the state offense does not: knowledge of the illicit nature of the
    substance. 48 Paez Sarmientos’s state conviction is thus not categorically an
    aggravated felony.
    The Government nonetheless contends that the Florida offense is a
    categorical match to the federal offense even though “knowledge of the illicit
    nature of the substance” is an affirmative defense under Florida law but an
    element of the crime the prosecution must prove beyond a reasonable doubt
    under federal law. According to the Government, because a defendant can
    raise the affirmative defense if he actually lacks knowledge of the illegal nature
    of the substance, the affirmative defense ensures that the defendant is
    “convicted based on knowledge of the substance’s illicit nature just as he or she
    would have been under federal law.”
    This argument misses the mark. A defendant can be convicted under
    the Florida law at issue without a finding beyond a reasonable doubt or an
    admission in a plea agreement that the defendant knew of the substance’s
    illicit nature if the defendant either fails to raise the affirmative defense or
    46   Id. at 1281 (referencing Moncrieffe v. Holder, 
    133 S. Ct. 1678
    , 1684 (2013)).
    47   See id. at 1281-82.
    48   See United States v. Gamez-Gonzalez, 
    319 F.3d 695
    , 699-700 (5th Cir. 2003).
    10
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    fails to meet his burden of persuasion. 49 Because we cannot say that “the least
    of the acts criminalized” by the Florida statute is encompassed by the federal
    offense, 50 the Florida crime of delivery of cocaine does not, as a matter of law,
    constitute an aggravated felony.
    The BIA erred in holding that § 893.13(1)(a)(1) is categorically an
    aggravated felony and in denying Paez Sarmientos the opportunity to seek
    cancellation of removal from the Attorney General.
    *        *         *
    Paez Sarmientos’s petition is GRANTED, and we VACATE AND
    REMAND for further proceedings consistent with this opinion.
    49  State v. Adkins, 
    96 So. 3d 412
    , 415-16 (Fla. 2012) (explaining that “knowledge of the
    illicit nature of the controlled substance” is no longer an element of the Florida crime that
    the prosecution must prove beyond a reasonable doubt); see Donawa, 735 F.3d at 1282-83
    (rejecting the argument that the prosecution ever bears the burden to prove that the
    defendant knew of the illicit nature of the substance under Florida law, even when the
    defendant raises the affirmative defense of lack of knowledge).
    50   Moncrieffe, 
    133 S. Ct. at 1684
     (internal quotation marks and alterations omitted).
    11