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Dixon v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

October 1, 2014

TREVARDO DERMONT DIXON, a.k.a. Trevardo Darmonda Dixon, a.k.a. Trevardo Darmont Dixon, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent

Page 1340

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A047-117-482.

For Trevardo Dermont Dixon, Petitioner: Peter Loblack, Law Office of Peter Loblack, PA, Plantation, FL.

For U.S. Attorney General, Respondent: Stefanie N. Hennes, Leslie McKay, Theo Nickerson, Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Marc Jeffrey Moore, ICE Field Office Director, Krome Spc, Miami, FL; Michelle Ressler, District Counsel's Office, Usice, Miami, FL.

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

OPINION

Page 1341

WILSON, Circuit Judge:

Trevardo Dixon petitions for review of the dismissal, by the Board of Immigration Appeals (BIA), of his appeal from the Immigration Judge's (IJ) order of removal under 8 U.S.C. § 1227(a)(2)(A)(iii), which renders deportable " [a]ny alien who is convicted of an aggravated felony at any time after admission." An aggravated felony is defined as " a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). On appeal, Dixon contends that his Florida state conviction for aggravated fleeing, Fla. Stat. § 316.1935(4)(a), was not an aggravated felony. He argues (1) that the sentence of five years' imprisonment, which the Florida court imposed after he violated his probation for his aggravated fleeing violation, was for the probation violation rather than the original offense and, therefore, cannot count as his sentence in order to satisfy the aggravated felony definition; and (2) that aggravated fleeing is not categorically a crime of violence under 18 U.S.C. § 16(b) because it does not involve a substantial risk that intentional violent force will be used in the commission of the offense. We address Dixon's arguments in turn. The BIA reached the correct conclusion regarding both the sentence and the § 16(b) question. We accordingly deny the petition.

I.

We review questions of law de novo, including whether a conviction is an aggravated felony. Accardo v. U.S. Att'y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011). In considering a petition for review, we look to the decision of the BIA, unless the BIA expressly adopts the IJ's opinion or reasoning. Cole v. U.S. Att'y Gen., 712 F.3d 517, 523 (11th Cir.), cert. denied, 134 S.Ct. 158, 187 L.Ed.2d 40 (2013). Because the BIA agreed with the IJ's reasoning on the crime of violence issue, we review both decisions on that issue. Ayala v. U.S. Att'y Gen., 605 F.3d 941, 948 (11th Cir. 2010).

II.

We first address Dixon's claim that his five-year sentence could not be counted

Page 1342

as his sentence for his aggravated fleeing conviction in order to classify it as an aggravated felony because it was imposed for the probation violation rather than for the original offense. To be characterized as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), an offense must result in a sentence of imprisonment for one year or more. Dixon cites Florida law that he claims supports his argument that revocation of a sentence of probation, which results in a term of imprisonment, is a sentence for a probation violation, not for the underlying crime that produced the original sentence of probation. See Sanders v. State, 35 So.3d 864 (Fla. 2010); Roberts v. State, 644 So.2d 81 (Fla. 1994) (per curiam); Gearhart v. State, ...


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