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Gordon v. United States Attorney General

United States Court of Appeals, Eleventh Circuit

July 10, 2017

LANNIE GORDON, Petitioner,
v.
UNITED STATES ATTORNEY GENERAL, Respondent.

         Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A039-056-919

          Before TJOFLAT and WILSON, Circuit Judges and ROBRENO, [*] District Judge.

          OFLAT, Circuit Judge

          Petitioner Lannie Gordon ("Gordon") petitions for review of the Board of Immigration Appeals' ("Board" or "BIA") order upholding the Immigration Judge's ("IJ") finding that his conviction for violating Florida Statute § 893.13(1)(a) constituted an aggravated felony and therefore rendered him removable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii). We grant his petition, and reject the Board's finding of removability.

         I.

         Gordon is a citizen of Guyana and a lawful permanent resident of the United States since 1985. On October 23, 2014, Gordon pleaded guilty to two counts of Sale or Delivery of Cannabis in violation of Florida Statute § 893.13(1)(a). The two counts read in pertinent part:

1. On or about May 15, 2014 in Lee County Florida, did unlawfully sell or deliver, for monetary consideration, a controlled substance, to-wit: Cannabis, contrary to Florida Statute 893.13(1)(a) . . .
3. On or about May 21, 2014 in Lee County Florida, did unlawfully sell or deliver, for monetary consideration, a controlled substance, to-wit: Cannabis, contrary to Florida Statute 893.13(1)(a) . . .[1]

         Gordon was sentenced to two years of State probation for the convictions.[2]Shortly after the convictions and sentencing, on January 22, 2015, the Department of Homeland Security served Gordon with a Notice to Appear ("NTA") for removal proceedings. The NTA alleged Gordon was removable pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony offense related to illicit trafficking in a controlled substance as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), and described in section 102 of the Controlled Substance Act, which included a drug trafficking crime as defined in 18 U.S.C. § 924(c). The IJ found Gordon removable as charged, concluding that Mr. Gordon's convictions under Florida Statute § 893.13(1)(a) constitute illicit trafficking as defined in 8 U.S.C. § 1101(a)(43)(B). Gordon appealed to the BIA, which dismissed the appeal, agreeing with the IJ's determination that the convictions for selling or delivering cannabis for "monetary consideration" qualified as illicit trafficking convictions.[3] Gordon now seeks review of the Board's decision, arguing that the Board misapplied the modified categorical approach to find him removable as an aggravated felon.

         "When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the immigration judge's decision, " in which case we review the IJ's decision as well. Jeune v. U.S. Att'y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Here, the Board did not expressly adopt the IJ's opinion.

         "We review de novo whether a conviction qualifies as an 'aggravated felony.'" Accardo v. U.S. Att'y Gen., 634 F.3d 1333, 1335 (11th Cir. 2011) (citation omitted). To assess whether Gordon's state conviction was an aggravated felony conviction, the Board first had to decide whether § 893.13(1)(a) is divisible and thus subject to the modified categorical approach instead of the categorical approach in comparing the elements of § 893.13(1)(a) with the elements of the corresponding aggravated felony of "illicit trafficking in a controlled substance." Spaho v. U.S. Att'y Gen., 837 F.3d 1172, 1177 (11th Cir. 2016) (citing Moncrieffe v. Holder, __U.S. __, 133 S.Ct. 1678, 1685, 185 L.Ed.2d 727 (2013)).

         A state statute is divisible when it "lists a number of alternative elements that effectively create several different crimes." Donawa v. U.S. Att'y Gen., 735 F.3d 1275, 1281 (11th Cir. 2013). Conversely, a state statute is indivisible when it contains a single set of elements that are not set forth in the alternative. Descamps v. United States, __U.S. __, 133 S.Ct. 2276, 2281, 186 L.Ed. 2D 438 (2013). Such a statute remains indivisible even if it "enumerates various factual means of committing a single element." Mathis v. United States, __U.S. __, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

         Under the categorical approach, the court examines solely "whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' federal definition of a corresponding aggravated felony." Moncrieffe, 133 S.Ct. at 1684 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 818, 166 L.Ed.2d 683 (2007)). The court must "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime, " and conviction under the state statute will only constitute a conviction for the generic offense "if the statute's elements are the same as, or narrower than, those of the generic offense." Descamps, 133 S.Ct. at 2281. "If the statute can be violated by an act that does not fit within the generic offense, then the statute cannot qualify as an aggravated felony under the categorical approach, and this is true even if the actual conduct of the defendant fell within the generic crime." Spaho, 837 F.3d at 1177 (citation omitted).

         Under the modified categorical approach that applies to statutes that are divisible into alternative crimes, however, the court may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction" and then "do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element ...


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