Petition for Review of a Decision of the Board of Immigration Appeals Panel: Martin, Jordan and Suhrheinrich, Circuit Judges (Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, Sitting by Designation) Martin, Circuit Judge: Vacated and Remanded I do not usually distribute Eleventh Circuit decisions in immigration cases, but this particular appeal construes the definition of “aggravated felony” as defined at 8 U.S.C. § 1101(a)(43) of the immigration statutes, and that same definition affects the statutory maximum penalties under the illegal reentry statute, 8 U.S.C. § 1326, and the illegal reentry guideline enhancements found in USSG §2L1.2. The Court’s holding almost certainly will apply as well to the definition of “drug trafficking offense” found in §2L1.2. In this appeal the Eleventh Circuit holds that a Florida conviction for drug trafficking under Fla. Stat. § 893.13(1)(a), sustained in or after 2002 (and perhaps before 1996 – see below), cannot be an “aggravated felony” because knowledge of the illicit nature of the controlled substance is not an element of the offense. Mr. Donawa had petitioned for review from an order of the Board of Immigration Appeals affirming an Immigration Judge’s determination that Mr. Donawa is not eligible for cancellation of removal because he committed an aggravated felony. The Eleventh Circuit was required to decide whether a conviction under Fla. Stat. § 893.13(1)(a)(2) for the possession of a controlled substance with the intent to sell or deliver was, as a matter of law, a drug trafficking aggravated felony. The Immigration and Nationality Act allows the government to deport noncitizens who are convicted of certain crimes while in the United States, including drug offenses. Ordinarily, a deportable noncitizen may ask the Attorney General for discretionary relief from removal, but if that noncitizen has been convicted of an aggravated felony, he is not only deportable; he is also ineligible for any discretionary relief. Mr. Donawa is a native and citizen of Antigua who entered the United States as a lawful permanent resident on December 26, 1985, and who on June 8, 2009, was convicted in Florida state court of possession of cannabis with intent to sell or deliver in violation of Fla. Stat. § 893.13(1)(a)(2). The immigration judge found him removable and also ineligible for cancellation of removal as a matter of law because Fla. Stat. § 893.13 (1)(a)(2) was a drug trafficking crime, and so an aggravated felony. The term “aggravated felony” means, among other things, “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of Title 18).” Section 924(c) in turn defines the term “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” Under the categorical approach, a court must confine its consideration only to the fact of conviction and the statutory definition of the offense, asking only “whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” In 2002 the Eleventh Circuit had found the same Florida drug trafficking statute at issue here to be an aggravated felony. That same year, however, the Florida legislature significantly changed the nature of the offense, finding that two Florida Supreme Court cases (one in 1996 and the other in 2002) 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. The resulting amendment thus eliminated from the Florida statutory scheme what had been since 1996 – before that, the Florida district courts of appeal were divided on the issue – a required element with the burden of proof resting on the government: mens rea with respect to the illicit nature of the substance. The federal analogue to the Florida offense in question offense is 21 U.S.C. § 841(a)(1), which is among the drug trafficking offenses listed under 18 U.S.C. § 924(c)(2). The federal statute, in contrast to Florida’s current law, requires the government to establish, beyond a reasonable doubt and without exception, that the defendant had knowledge of the nature of the substance in his possession. The Eleventh Circuit thus held that under the categorical approach, it was clear that the “least of the acts criminalized” by Fla. Stat. § 893.13 (1)(a)(2) did not necessarily violate 21 U.S.C. § 841(a)(1). A person could be convicted under the Florida statute, the Court wrote, without any knowledge of the nature of the substance in his possession. That same person could not be convicted of the federal crime. The Court thus concluded that Fla. Stat. § 893.13(1)(a)(2), as amended in 2002, does not categorically qualify as an aggravated felony. The Eleventh Circuit rejected the government’s invitation to treat the statute as divisible and to apply the modified categorical approach. It noted that the Supreme Court’s recent decision in Descamps v. United States made clear that federal courts cannot use the modified categorical approach to supply an element that the offense completely lacks. As stated above, the holding in this case is important for purposes of the eight-level enhancement found at §2L1.2(b)(1)(C), which applies when the defendant was deported after sustaining a conviction for an aggravated felony. It will most likely apply as well to the §2L1.2 definition of “drug trafficking offense,” because knowledge of the nature of the controlled substance is an element of the generic definition of “drug trafficking.” Section 2L1.2 provides for a sixteen-level enhancement when the defendant was deported after sustaining a conviction for a drug trafficking offense for which the sentence imposed exceeded 13 months, and for a twelve-level enhancement when the sentence imposed was less than 13 months.

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Ray Lopez has practiced since 1990, with prior experience as a Hillsborough County assistant State attorney and lawyer for the Tampa Police Department. He handles all criminal charges, from traffic violations and misdemeanors to serious felonies and federal drug charges. He practices in all state and federal courts of the Tampa Bay area and throughout Florida, as well as criminal appeals, juvenile court, administrative hearings, and civil forfeiture proceedings.

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