Keefe Gordon v. U.S. Attorney General

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14513
________________________
Agency No. A044-849-370
KEEFE GORDON,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 24, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit
Judges.
JILL PRYOR, Circuit Judge:
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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.
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§§ 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
1
Gordon was also charged as removable for having been convicted of an aggravated
felony relating to a theft; however, DHS withdrew this charge.
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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
2
The IJ also determined that Gordon was removable based on his prior controlled
substance offenses, specifically his 2003 and 2006 convictions involving ecstasy and cocaine.
See id. § 1227(a)(2)(B)(i). Because the BIA addressed only whether Gordon’s conviction under
§ 16-13-30 qualified as an aggravated felony, we do not address any of the other grounds on
which the IJ found him removable. See Imelda v. U.S. Att’y. Gen., 611 F.3d 724, 727 (11th Cir.
2010).
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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.
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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 (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 (2005); Guillen, 910
F.3d at 1180. Shepard documents can consist of “a plea agreement, the transcript
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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; Descamps v. United States, 570
U.S. 254, 262 (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. 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
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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, 136 S. Ct. 2243, 2256
(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 convicted of “both possession
of marijuana and possession of a hallucinogenic drug, even though the offenses
were merely different facets of the same transaction.” Id. at 1182 (internal
quotation marks omitted).
The same is true of Georgia case law’s treatment of § 16-13-30(b) and (d).
Section 16-13-30(b) makes it unlawful “for any person to . . . possess with intent to
distribute any controlled substance.” O.C.G.A. § 16-13-30(b). Subsection (d)
provides that “any person who violates subsection (b) of this Code section with
respect to a controlled substance in Schedule I or Schedule II shall be guilty of a
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felony.” Id. § 16-13-30(d). In Tabb v. State, the Georgia Supreme Court held that
Georgia could charge and convict a defendant in separate counts for simultaneous
possession of three different Schedule II controlled substances. 297 S.E.2d 227,
230 (Ga. 1982). The Court expressly rejected Tabb’s contention that the illegal
possession of several controlled substances amounted to a single offense. Id.Analyzing the language of the statute and Georgia law, the Georgia Supreme Court
determined that “simultaneous possession of each of the controlled substances
listed in Schedule II . . . is a separate offense for which the legislature meant to
impose punishment.” Id. Where the state’s highest court “has told us that the
elements of possession of [several controlled substances] are different, it has
implicitly told us that the identity of the substance possessed is an element of
possession.” Guillen, 910 F.3d at 1182.
Because the Georgia Supreme Court has told us that possession of each of
the “controlled substances listed . . . is a separate offense,” that settles the matter:
the identity of the controlled substances in § 16-13-30 is an element of the offenses
criminalized in that statute. Tabb, 297 S.E.2d at 230; see Guillen, 910 F.3d at
1182. We therefore conclude that § 16-13-30 is divisible, and the modified
categorical approach applies.
B. The BIA Did Not Err in Determining that Ecstasy Is a Federally
Controlled Substance Under Georgia Law.
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We now apply the modified categorical approach to determine whether
Gordon’s conviction under § 16-13-30 qualifies as an aggravated felony involving
a drug trafficking crime. Under the modified categorical approach, we identify the
substance Gordon was convicted of possessing and then evaluate whether that
substance corresponds with a federally controlled substance. See Guillen, 910 F.3d
at 1185.
Gordon’s indictment reveals that the substance he was convicted of
possessing with the intent to distribute was “ecstasy.” AR. at 666-68, 6753; see
Shepard, 544 U.S. at 26. Gordon does not disagree that his conviction involved
ecstasy. Instead he contends that because ecstasy is not listed in either the Georgia
or federal controlled substances schedules, and the Shepard documents do not
reveal the chemical substances that made up the ecstasy he possessed, the drug is
not a controlled substance under the CSA. Therefore, he argues, he was not
convicted of a “felony punishable under” the CSA. 8 U.S.C. § 1101(a)(43)(B); 18
U.S.C. § 924(c)(2).
The CSA defines the term “controlled substance” as “a drug or other
substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B
of this subchapter.” 21 U.S.C. § 802(6). Ecstasy is not included in the federal
controlled substance schedules; however, 3, 4-methylenedioxymethamphetamine
3
Citations to “AR” refer to the administrative record in Gordon’s removal proceedings.
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(“MDMA”) is listed. See 21 C.F.R. § 1308.11(d)(11). The government argues that
because Georgia law refers to MDMA as ecstasy, Gordon was convicted of
possessing with the intent to distribute MDMA, a federally controlled substance.
We agree that Georgia case law indicates that Georgia courts refer to
MDMA as ecstasy. For example, in Cooper v. State, Cooper was charged for the
possession of N-Benzylpiperazine, commonly known as BZP, a Schedule I
controlled substance in Georgia. 728 S.E.2d 289, 290 (Ga. Ct. App. 2012).
Cooper argued that the State’s evidence against him was insufficient because he
did not knowingly possess BZP but possessed “a different Schedule I controlled
substance, ecstasy.” Id. at 291. The court rejected the argument because Cooper’s
knowledge was a question for the jury, and the jury could have inferred from
circumstantial evidence that he knew he possessed the chemical compound BZP,
not ecstasy. Id. In its analysis of Cooper’s argument, the court recognized that
“MDMA or ecstasy is a Schedule I controlled substance denominated 3, 4–
Methylenedioxymethamphetamine.” Id. at 291 n.2 (emphasis added) (internal
quotation marks omitted). Cooper suggests that Georgia courts refer to MDMA,
and not other controlled substances, as ecstasy.
Other cases support the conclusion that in Georgia ecstasy refers to MDMA.
See Jackson v. State, 724 S.E.2d 9, 11 (Ga. Ct. App. 2012) (recounting that two
defendants were “convicted of trafficking in 3, 4–
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methylenedioxymethamphetamine (‘MDMA’ or ‘ecsta[s]y’)”); Gibson v. State,
706 S.E.2d 585, 585-86 & n.1 (Ga. Ct. App. 2011) (noting that the defendant was
convicted of “trafficking in MDMA (‘ecsta[s]y’)”); Taylor v. State, 702 S.E.2d 28,
28-29 (Ga. Ct. App. 2010) (explaining that the defendant “was convicted of
possession of MDMA (‘Ecstasy’) (footnote omitted)); Vines v. State, 675 S.E.2d
260, 262 n.1 (Ga. Ct. App. 2009) (“MDMA is an abbreviation for 3, 4-
Methylenedioxymethamphetamine and is commonly known as ‘Ecstasy.’”).
Relying on Farley v. State, 732 S.E.2d 131 (Ga. Ct. App. 2012), Gordon
argues that Georgia also treats other chemicals besides MDMA as ecstasy and
therefore ecstasy does not necessarily refer to MDMA. In Farley, the defendant
was charged and convicted of, among other offenses, the sale of ecstasy. Id. at
132. The court noted that the ecstasy pills Farley sold tested positive for “the
presence of N-benzylpiperazine (BZP) and 1–(3–trifluoromethylphenyl) piperazine
(TFMPP).” Id. at 133. We are unpersuaded by Gordon’s argument that Farley
leads us to a different conclusion regarding whether ecstasy was a federally
controlled substance.
Although the pills at issue in Farley were charged as ecstasy but contained
BZP and TFMPP, at the time of Gordon’s conviction those two substances were
listed on the federal controlled substances schedules. See 21 C.F.R.
§ 1308.11(g)(3)-(4) (2003). BZP and TFMPP were added to the federal schedules
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specifically because when combined they imitate the effects of MDMA and are
sold as such. See Schedules of Controlled Substances; Placement of 2,5-
Dimethoxy-4-(n)-propylthiophenethylamine and N-Benzylpiperazine Into
Schedule I of the Controlled Substances Act, 69 Fed. Reg. 12,794, 12,795 (Mar.
18, 2004). Thus, even if we accepted that in Georgia ecstasy could refer to BZP
and TFMPP—meaning that Gordon’s conviction for possessing with the intent to
distribute ecstasy could have involved these controlled substances instead of
MDMA—Gordon’s conviction would nonetheless qualify as an aggravated
felony.4 21 C.F.R. § 1308.11(g)(3)-(4) (2003).
Because the controlled substances at issue in Farley were nonetheless
federally controlled substances, we reject Gordon’s argument that Farley means he
could have been convicted of possessing with the intent to distribute a substance
not listed on the federal controlled substances schedules. We thus conclude that
Gordon’s conviction under § 16-16-30 qualifies as a felony punishable under the
CSA. The BIA therefore correctly determined that he was removable and
4
Gordon argues that we must compare his conviction with the federal controlled
substances schedules in effect at the time of his removal proceedings rather than those in effect at
the time of his conviction. He is incorrect. In assessing whether a noncitizen’s conviction
qualifies as an aggravated felony, we compare his offense of conviction to the CSA schedules in
effect when he was convicted. See Mellouli v. Lynch, 135 S. Ct. 1980, 1988 (2015) (comparing
the state controlled substance schedules with the federal schedules in place “[a]t the time of
Mellouli’s conviction”); see also Collymore v. Lynch, 828 F.3d 139, 142 n.4 (2d Cir. 2016)
(noting that the court’s references to the federal controlled substance schedules concern the
“version of the federal drug schedules in effect at the time of Collymore’s conviction”).
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ineligible for cancellation of removal based on an aggravated felony for a drug
trafficking crime. See 8 U.S.C. §§ 1101(a)(43)(B), 1229b(a)(3); 18 U.S.C.
§ 924(c)(2).
PETITION DENIED.
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