Raphiel Davis v. Eric Holder, Jr.

Case: 12-60541 Document: 00512153209 Page: 1 Date Filed: 02/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2013
No. 12-60541
Summary Calendar Lyle W. Cayce
Clerk
RAPHIEL ROBERT DAVIS, also known as Super Alien Davis,
also known as Raphiel Davis,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A036 524 010
Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Raphiel Robert Davis, a native and citizen of Guyana, petitions for review
of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from a decision of the immigration judge (IJ), which concluded that Davis’s
Florida state conviction for unlawfully selling marijuana constituted an
aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) and that the aggravated
felony conviction rendered him ineligible for withholding of removal. In his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60541 Document: 00512153209 Page: 2 Date Filed: 02/22/2013
No. 12-60541
petition for review, Davis argues that the BIA erred as a matter of law in
concluding that his conviction under Florida Statute § 893.13(1)(a)(2) constituted
a felony under the Controlled Substances Act (CSA) and an aggravated felony
under § 1227(a)(2)(A)(iii). He renews his argument that he could have been
convicted of simply possessing a small quantity of marijuana for distribution
without remuneration, which would be only a misdemeanor under federal law.
Davis also argues that the IJ committed error by denying him the opportunity
to apply for cancellation of removal.
Whether an offense is an aggravated felony is a question of law which we
review de novo. Andrade v. Gonzales, 459 F.3d 538, 544 (5th Cir. 2006). Drug
trafficking crimes are considered aggravated felonies and include any felony
punishable under the CSA. Moncrieffe v. Holder, 662 F.3d 387, 390 (5th Cir.
2011), cert. granted, 132 S. Ct. 1857 (2012). Under Florida Statute
§ 893.13(1)(a)(2), it is a felony of the third degree “to sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance.” A person convicted of a third degree felony under § 893.13(1)(a)(2)
faces a term of imprisonment not exceeding five years. FLA. STAT. ANN.
§ 775.082(3)(d). Because this state felony is punishable by more than one year
in prison, it would be considered a felony under federal law. See 21 U.S.C.
§ 802(13).
Moreover, because the state court charging documents show that Davis
was convicted of selling or delivering marijuana for consideration, the BIA
correctly concluded that his Florida conviction does not fit within the
misdemeanor exception of 21 U.S.C. § 841(b)(4). Instead, the record establishes
that Davis committed an “aggravated felony” that rendered him removable
under § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43)(B). That being so, Davis
cannot show any error as to the determination that he was ineligible for
cancellation of removal. See 8 U.S.C. § 1229b(a)(3).
PETITION DENIED.
2