The U.S. Court of Appeals for the Eleventh Circuit held that a Florida conviction for possession of cannabis with the intent to sell or deliver, Fla. Stat. § 893.13(1)(a)(2), is not a drug trafficking type of aggravated felony. Donawa v. U.S. Attorney General, No. 12-13526, slip op. (11th Cir. Nov. 7, 2013) (Martin, Jordan, and Suhrheinrich, JJ.). Judge Martin wrote the panel’s decision. Michael Vastine, a professor at St. Thomas University School of Law and past guest blogger on crImmigration.com, successfully argued on Mr. Donawa’s behalf.
This case involved an LPR convicted of the possession of cannabis with intent to deliver offense as well as another drug-related crime. The only question before the Eleventh Circuit was whether the possession conviction constitutes drug trafficking as the immigration judge and Board of Immigration Appeals concluded, thereby precluding Mr. Donawa from eligibility for cancellation of removal.
The court began by noting that the categorical approach requires a conclusion that a state conviction “necessarily involves facts equating [to] the generic federal offense.” Donawa, No. 12-13526, slip op. at 5-6. That is, the elements of Florida’s possession of cannabis with intent to deliver crime must match the definition of “drug trafficking” as used for immigration law purposes. It is irrelevant what actually led to Mr. Donawa’s conviction. All that matters is what he was convicted of doing.
Moreover, building off the Supreme Court’s June 2013 decision in Descamps v. United States, 133 S. Ct. 2276 (2013) (analyzed here on crImmigration.com), the court noted the limited applicability of the modified categorical approach. That method of statutory interpretation allows the court to examine the record of conviction when the statute of conviction is divisible—meaning a conviction under some parts of the statute lead to removability while a conviction under other parts do not. The modified categorical approach, the court explained, “is applied only when a single statute lists a number of alternative elements that effectively create several different crimes, some of which are aggravated felonies and some of which are not.” Donawa, No. 12-13526, slip op. at 6. It does not allow a court to examine the facts underlying a conviction simply because the elements of the statute of conviction reach a wider array of conduct than does the generic definition of “drug trafficking” used for immigration law purposes.
With that analytical framework in place, the court turned to the Florida offense Mr. Donawa was convicted of violating, possession of cannabis with intent to deliver, to determine whether it constitutes drug trafficking. The INA explicitly states that “drug trafficking” is defined in 18 U.S.C. § 924(c). INA § 101(a)(43)(B). Section 924(c), in turn, provides, in whole: “the term ‘drug trafficking crime’ means 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.”
One of the many crimes that fit that definition—and the one that is most analogous to the Florida offense—is the federal crime of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1). That federal offense, however, differs from the Florida possession offense in one critical way: “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 substances in his possession.” Donawa, No. 12-13526, slip op. at 8.
The result of this disparity is that “[a] person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. That same person could not be convicted of the federal crime.” Donawa, No. 12-13526, slip op. at 9. Accordingly, the court held that the Florida crime is not a drug trafficking type of aggravated felony.
Many thanks to Marc-Tizoc González for bringing this case to my attention.