5 Cir: Drug trafficking aggravated felony requires knowing substance was illicit

The U.S. Court of Appeals for the Fifth Circuit held that Florida’s cocaine delivery offense is not a drug trafficking type of aggravated felony because, unlike federal law, it does not require, as an element of the crime, showing that the defendant knew that the substance was a controlled substance. Paez Sarmientos v. Holder, No. 13-60086, slip op. (5th Cir. Feb. 12, 2014) (Reavley, Prado, and Owen, JJ.). Judge Owen wrote the panel’s opinion.

This case involved an LPR who pleaded guilty to delivering cocaine in violation of Florida Statute § 893.13(1)(a)(1). After finding that Paez Sarmientos was inadmissible because his conviction constitutes a controlled substance offense under INA § 212(a)(2)(A)(i)(II), the immigration judge denied his application for cancellation of removal on the basis that his conviction also constitutes a drug trafficking aggravated felony. Paez Sarmientos, No. 13-60086, slip op. at 2. An aggravated felony conviction precludes cancellation eligibility. INA § 240A(a)(3).

The IJ and BIA rejected Paez Sarmientos’s argument “that the Florida offense of cocaine delivery was broader than a federal drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B) [INA § 101(a)(43)(B)], which is an aggravated felony, because the Florida statute did not have the same mens rea requirement as the federal law.” Id. at 3.

Unlike the IJ and BIA, Paez Sarmientos managed to sway the Fifth Circuit. The court first noted that a state crime constitutes a “drug trafficking” aggravated felony if it punishes conduct punishable as a felony under the federal Controlled Substances Act. Id. at 5. The federal crime that most resembles Florida’s cocaine delivery offense, according to the BIA, is distribution of a controlled substance under 21 U.S.C. § 841(a)(1). Id. at 7. “Federal law is clear,” the Fifth Circuit then explained, “that, to be convicted under § 841(a)(1), the prosecutor must prove beyond a reasonable doubt that the defendant knew that the substance he manufactured, distributed, dispensed, or possessed was a controlled substance of some kind.” Id.

Though the Florida Supreme Court came to much the same conclusion about the state possession offense back in 1996 and again in 2002, the Florida legislature responded by explicitly stating that that was not so. As the Fifth Circuit put it, Florida Statute § 893.101, enacted in 2002, “‘thus expressly eliminates knowledge of the illicit nature of the controlled substance as an element of controlled substance offenses and expressly creates an affirmative defense of lack of knowledge of the illicit nature of the substance.’” Id. at 9 (quoting Florida Statute § 891.101). Though the government pointed to the fact that lack of knowledge remains an affirmative defense, the court noted that this is not synonymous with being an element of the crime since a defendant can be convicted if he “either fails to raise the affirmative defense or fails to meet his burden of persuasion.” Paez Sarmientos, No. 13-60086, slip op. at 10-11.

Removing knowledge from the offense’s elements means that “the least of the acts criminalized by the delivery of cocaine crime under Florida Statute § 893.13(1)(a)(1) does not necessarily violate the federal cocaine distribution statute since the federal offense requires the prosecution to prove beyond a reasonable doubt an element that the state offense does not: knowledge of the illicit nature of the substance.” Paez Sarmientos, No. 13-60086, slip op. at 10. As a result, the court concluded, “Paez Sarmientos’s state conviction is thus not categorically an aggravated felony.” Id. at 10.

This decision comes on the heels of the Eleventh Circuit’s very similar holding in Donawa v. United States, 735 F.3d 1275 (11th Cir. 2013), dealing with a different Florida drug crime. I blogged about Donawa here.

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