     Case: 13-60086    Document: 00512530168     Page: 1   Date Filed: 02/12/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                  No. 13-60086                     February 12, 2014
                                                                     Lyle W. Cayce
ANDRES PAEZ SARMIENTOS,                                                   Clerk


                                            Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent.


                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Andres Paez Sarmientos petitions for review from an order of the Board
of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s)
determination that he is not eligible for cancellation of removal because he
committed an aggravated felony. Because we hold that the Florida offense of
which Paez Sarmientos was convicted is not categorically an aggravated
felony, we grant the petition, vacate the order, and remand for further
proceedings.
                                        I
      Paez Sarmientos, a native and citizen of Mexico, was admitted to the
United States as a lawful permanent resident in December 1990. In 2005, he
pleaded guilty to delivering cocaine in violation of Florida Statute
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                                            No. 13-60086

§ 893.13(1)(a)(1). 1       The trial judge withheld the adjudication of guilt and
ordered that Paez Sarmientos serve one day in jail and be placed on 24 months
of supervised probation. For federal immigration purposes, a state guilty plea
accompanied by some form of punishment is a conviction, 2 and we thus refer
to Paez Sarmientos’s Florida offense as a conviction.
       After a trip abroad, in May 2012, Paez Sarmientos sought to return to
the United States and applied for admission as a lawful permanent resident at
Laredo, Texas. The U.S. Department of Homeland Security (DHS) denied him
admission and initiated removal proceedings based on the 2005 Florida
conviction.       DHS alleged that Paez Sarmientos was removable, under
Immigration and Nationality Act (INA) § 212(a)(2)(A)(i)(II), as an alien
convicted of violating a controlled substance law because of his conviction of
cocaine delivery. 3
       The IJ agreed with DHS. In an oral decision, the IJ first concluded Paez
Sarmientos was inadmissible because he was convicted of violating a controlled
substance law. The IJ also denied Paez Sarmientos’s request to apply for
cancellation of removal under 8 U.S.C. § 1229b(a), concluding that Paez
Sarmientos had been convicted of an aggravated felony. 4 Paez Sarmientos had

       1 FLA. STAT. ANN. § 893.13(1)(a) (providing, “it is unlawful for any person to sell,
manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled
substance”). Subsection 893.13(1)(a)(1) states that a person commits a felony of the second
degree if the offense involves, among other substances, cocaine. Id. § 893.13(1)(a)(1) (citing
§ 893.03(2)(a), where cocaine is listed as a Schedule II controlled substance).
       2   See 8 U.S.C. § 1101(a)(48)(A).
       3 INA § 212(a)(2)(A)(i)(II), codified at 8 U.S.C. § 1182(a)(2)(A)(i)(II), provides, “any
alien convicted of, or who admits having committed, or who admits committing acts which
constitute the essential elements of . . . a violation of . . . any law or regulation of a State . . .
relating to a controlled substance . . . is inadmissible.”
       4  8 U.S.C. § 1229b(a) (providing that an alien who is inadmissible may seek
cancellation of removal from the Attorney General if the alien has been a lawfully admitted
permanent resident for not less than 5 years, has resided in the United States continuously
for 7 years after having been admitted, and has not been convicted of an aggravated felony).


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contended that the Florida offense of cocaine delivery was broader than a
federal drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B), which is an
aggravated felony, because the Florida statute did not have the same mens rea
requirement as the federal law.
      In rejecting Paez Sarmientos’s position, the IJ noted that, unlike the
federal offense of distribution of a controlled substance, the Florida statute
placed the burden on the defendant to prove he lacked knowledge of the illicit
nature of the controlled substance as an affirmative defense. The IJ reasoned
that there was no significant distinction between the Florida crime and the
federal offense even though Florida treats knowledge of the illicit nature of the
substance as an affirmative defense rather than as a traditional element of the
crime that the prosecution must prove beyond a reasonable doubt.          The IJ
accordingly concluded that Paez Sarmientos was ineligible for cancellation of
removal.
      Paez Sarmientos appealed to the BIA, challenging the IJ’s decision to
deny him the opportunity to seek cancellation of removal. In considering the
argument that the Florida offense did not contain the same mens rea
requirement as the federal offense and was therefore not categorically an
aggravated felony, the BIA acknowledged that the Florida statute converted
“knowledge of the illicit nature of the substance . . . from an element into an
affirmative defense.” However, the BIA concluded that the Florida statute was
“sufficiently analogous to the federal felony offense of distribution of a
controlled substance,” an aggravated felony. The BIA thus agreed with the IJ
that Paez Sarmientos was not eligible for cancellation of removal and
dismissed his appeal. A petition for review was filed in this court.




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                                              II
      Although 8 U.S.C. § 1252(a)(2)(C) provides “that no court has jurisdiction
to review deportation orders for aliens who are removable because they were
convicted of aggravated felonies,” 5 § 1252(a)(2)(D) provides that we may review
claims raising constitutional or purely legal questions. 6 The issue of whether
Paez Sarmientos’s Florida offense constitutes a conviction for an aggravated
felony is a purely legal question and we therefore have jurisdiction to consider
it. 7 This question of law is reviewed de novo. 8 We give deference to the BIA’s
interpretation of the statutes and regulations that it enforces, but no deference
is afforded in reviewing the BIA’s interpretation of state criminal law. 9 “We
may not affirm the BIA’s decision except on the basis of the reasons it
provided.” 10
                                              III
      The INA defines “aggravated felony” as, among other offenses, “illicit
trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18).” 11
We are concerned today only with a “drug trafficking crime (as defined in [18
U.S.C. § 924(c)]).” The term “drug trafficking crime” is defined under 18 U.S.C.
§ 924(c) to encompass “any felony punishable under the Controlled Substances



      5 Rodriguez v. Holder, 705 F.3d 207, 210 (5th Cir. 2013) (internal quotation marks
omitted).
      6   See 8 U.S.C. § 1252(a)(2)(D); Zhu v. Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007).
      7   See Rodriguez, 705 F.3d at 210.
      8   Id.
      9 Dale v. Holder, 610 F.3d 294, 301-02 (5th Cir. 2010); Larin-Ulloa v. Gonzales, 462
F.3d 456, 461 n.7 (5th Cir. 2006).
      10   Rodriguez-Barajas v. Holder, 624 F.3d 678, 679 (5th Cir. 2010).
      11   8 U.S.C. § 1101(a)(43)(B).


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                                         No. 13-60086

Act.” 12 A felony under federal law is an offense for which “the maximum term
of imprisonment authorized” is “more than one year.” 13 An offense punishable
under the Controlled Substances Act by more than one year’s imprisonment
will be treated as an aggravated felony for immigration purposes. 14 The INA’s
definition of an “aggravated felony” further provides that the term “applies to
an offense described in this paragraph whether in violation of Federal or State
law.” 15 The Supreme Court has explained that a conviction under state law
“may qualify, but a ‘state offense constitutes a “felony punishable under the
Controlled Substances Act” only if it proscribes conduct punishable as a felony
under that federal law.’” 16
       As the Supreme Court explained in Moncrieffe v. Holder, 17 we generally
employ a categorical approach to determine whether a state offense proscribes
conduct punishable as a felony under the Controlled Substances Act. 18 Under
the categorical approach, “we look not to the facts of the particular prior case,
but instead to whether the state statute defining the crime of conviction
categorically fits within the generic federal definition of a corresponding
aggravated felony.” 19 “[A] state offense is a categorical match with a generic
federal offense only if a conviction of the state offense necessarily involved facts
equating to the generic federal offense.” 20 Accordingly, “[b]ecause we examine

       12   18 U.S.C. § 924(c)(2).
       13   18 U.S.C. § 3559(a).
       14   Moncrieffe v. Holder, 133 S. Ct. 1678, 1683 (2013).
       15   8 U.S.C. § 1101(a)(43).
       16   Moncrieffe, 133 S. Ct. at 1683 (quoting Lopez v. Gonzales, 549 U.S. 47, 60 (2006)).
       17   133 S. Ct. 1678 (2013).
       18   Moncrieffe, 133 S. Ct. at 1684-85 (citing Nijhawan v. Holder, 557 U.S. 29, 33-38
(2009)).
       19   Id. at 1684 (internal quotation marks omitted).
       20   Id. (internal quotation marks and brackets omitted).


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what the state conviction necessarily involved, not the facts underlying the
case, we must presume that the conviction rested upon nothing more than the
least of the acts criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.” 21 The Supreme Court identified
qualifications to this approach, which include modifying the categorical
approach when a state statute contains several different crimes, and
recognizing that when focusing on the minimum conduct criminalized by the
state statute, “there must be a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside
the generic definition of a crime.” 22
      In Descamps v. United States, 23 the Supreme Court made clear that the
modified categorical approach described above may only be applied when the
statute of conviction contains multiple crimes set forth as alternative
elements. 24 In such a case, we may look to a limited class of documents to
determine which of the alternative offenses was the basis of the defendant’s
conviction. 25     When a prior conviction is based on an indivisible statute,
meaning “one not containing alternative elements,” that “criminalizes a
broader swath of conduct than the relevant generic offense,” a court cannot
look beyond the elements set forth in the statute. 26
      The Florida statute of conviction in the present case was divisible, as it
criminalized various discrete acts. 27 We know from the charging document and


      21   Id. (internal quotation marks and brackets omitted).
      22   Id. at 1685 (internal quotation marks omitted).
      23   133 S. Ct. 2276 (2013).
      24   See Descamps, 133 S. Ct. at 2284-86.
      25   Id. at 2285.
      26   Id.
      27   FLA. STAT. ANN. § 893.13(1)(a).


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the plea agreement in this case that Paez Sarmientos pleaded guilty to the
provisions of the Florida statute criminalizing delivery of cocaine.                    28   The
specific federal drug trafficking crime that the BIA considered analogous to the
Florida crime was distribution of a controlled substance under 21 U.S.C.
§ 841(a)(1). Section 841(a)(1) provides that “it shall be unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a controlled
substance.” 29 Under this provision, “distribute” means “to deliver,” 30 cocaine
is classified as a controlled substance, 31 and cocaine distribution is punishable
as a felony. 32 Federal law is clear 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. 33
       The Florida crime to which Paez Sarmientos pleaded guilty, Florida
Statute § 893.13(1)(a), provides that “it is unlawful for any person to sell,
manufacture, or deliver, or possess with intent to sell, manufacture, or deliver,


       28 See Moncrieffe, 133 S. Ct. at 1685 (“We know from his plea agreement that
Moncrieffe was convicted of the last of these offenses [listed in a similar Georgia statute].”)
(citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
       29   21 U.S.C. § 841(a)(1).
       30   Id. § 802(11).
       31   Id. § 812(c).
       32   See id. § 841(b)(1)(C).
       33 See United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003)
(recognizing that a conviction under § 841(a)(1) requires knowledge that the substance was
a controlled substance, but rejecting the argument that knowledge of the exact drug type or
quantity is an element of the offense); see also United States v. Sanders, 668 F.3d 1298, 1309
(11th Cir. 2012) (“The § 841(a) offense is complete once the person commits the proscribed
act and knows that the substance is a ‘controlled substance.’”); United States v. Abdulle, 564
F.3d 119, 125-26 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the
exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he [or she]
be aware that he [or she] possesses some controlled substance.”).


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a controlled substance.” 34 Subsection 893.13(1)(a)(1) outlines the penalties for
an offense involving the controlled substance of cocaine. 35 The Florida statute
does not specify what mental state is necessary to obtain a conviction. 36 The
Florida Supreme Court, in Chicone v. State, 37 held that to convict a defendant
of possession of a controlled substance under § 893.13, the prosecution had to
prove “guilty knowledge,” including that the defendant knew he possessed the
substance and knew of the illicit nature of the substance. 38                     The Florida
Supreme Court reaffirmed this holding in Scott v. State. 39                       However, in
response to these decisions, the Florida Legislature in 2002 enacted Florida
Statute § 893.101, which provides as follows:
       (1) The Legislature finds that the cases of [Scott and Chicone]
       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.

       (2) The Legislature finds that knowledge of the illicit nature of a
       controlled substance is not an element of any offense under this
       chapter. Lack of knowledge of the illicit nature of a controlled
       substance is an affirmative defense to the offenses of this chapter.

       (3) In those instances in which a defendant asserts the affirmative
       defense described in this section, the possession of a controlled
       substance, whether actual or constructive, shall give rise to a
       permissive presumption that the possessor knew of the illicit
       nature of the substance. . . . 40


       34   FLA. STAT. ANN. § 893.13(1)(a).
       35 Id. § 893.13(1)(a)(1) (citing id. § 893.03(2)(a), where cocaine is listed as a Schedule
II controlled substance).
       36   State v. Adkins, 96 So. 3d 412, 415 (Fla. 2012).
       37   684 So. 2d 736 (Fla. 1996).
       38   Chicone, 684 So. 2d at 743-44; see also Adkins, 96 So. 3d at 415 (discussing Chicone).
       39   808 So. 2d 166, 169-70 (Fla. 2002).
       40   FLA. STAT. ANN. § 893.101.


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Section 893.101 “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.” 41
       Paez Sarmientos argues that a conviction under § 893.13(1)(a)(1), as
modified by § 893.101, does not require that the defendant knew that the
substance at issue was a controlled substance whereas conviction under the
federal statute does. He asserts that, contrary to the BIA’s reasoning, his 2005
state conviction for delivery of cocaine is therefore not analogous to the federal
offense of distribution of a controlled substance. We agree.
       Although this question is a matter of first impression in this circuit, 42 we
find persuasive the reasoning of the Eleventh Circuit in Donawa v. U.S.
Attorney General. 43 There, the court held that § 893.13 is not an aggravated
felony for immigration purposes. 44 The case involved possession of cannabis
with intent to sell or deliver, 45 not delivery of cocaine as here, but the analysis
applies equally to this case. As the Eleventh Circuit explained, “[u]nder the
categorical approach, it is clear that the ‘least of the acts criminalized’ [by the



       41Adkins, 96 So. 3d at 416. In State v. Adkins, the Florida Supreme Court held that
it was not unconstitutional to convert “knowledge of the illicit nature of the controlled
substance” from an element of the Florida crime to an affirmative defense through Florida
Statute § 893.101. Id. at 423.
       42 In unpublished decisions, this court has held that § 893.13(1)(a) is a drug trafficking
crime and therefore an aggravated felony for immigration purposes. But these decisions did
not address the argument that Paez Sarmientos raises here: that the Florida statute does
not require knowledge of the illicit nature of the controlled substance. See Davis v. Holder,
514 F. App’x 517, 518 (5th Cir. 2013) (unpublished); Jackson v. Holder, 487 F. App’x 181, 181
(5th Cir. 2012) (unpublished).
        735 F.3d 1275 (11th Cir. 2013). This decision was issued after the parties’ briefing
       43

was completed, but Paez Sarmientos brought it to our attention in a Rule 28(j) letter.
       44   Donawa, 735 F.3d at 1283.
       45   Id. at 1278.


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Florida statute] does not necessarily violate 21 U.S.C. § 841(a)(1).” 46 This is
because, although a person could be convicted under the Florida statute
without any knowledge of the illicit nature of the substance he possesses, the
same person could not be convicted of drug trafficking under 21 U.S.C.
§ 841(a)(1). 47 Applying the same logic here, 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. 48 Paez Sarmientos’s state conviction is thus not categorically an
aggravated felony.
      The Government nonetheless contends that the Florida offense is a
categorical match to the federal offense even though “knowledge of the illicit
nature of the substance” is an affirmative defense under Florida law but an
element of the crime the prosecution must prove beyond a reasonable doubt
under federal law. According to the Government, because a defendant can
raise the affirmative defense if he actually lacks knowledge of the illegal nature
of the substance, the affirmative defense ensures that the defendant is
“convicted based on knowledge of the substance’s illicit nature just as he or she
would have been under federal law.”
      This argument misses the mark. A defendant can be convicted under
the Florida law at issue without a finding beyond a reasonable doubt or an
admission in a plea agreement that the defendant knew of the substance’s
illicit nature if the defendant either fails to raise the affirmative defense or


      46   Id. at 1281 (referencing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)).
      47   See id. at 1281-82.
      48   See United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003).


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fails to meet his burden of persuasion. 49 Because we cannot say that “the least
of the acts criminalized” by the Florida statute is encompassed by the federal
offense, 50 the Florida crime of delivery of cocaine does not, as a matter of law,
constitute an aggravated felony.
       The BIA erred in holding that § 893.13(1)(a)(1) is categorically an
aggravated felony and in denying Paez Sarmientos the opportunity to seek
cancellation of removal from the Attorney General.
                                       *        *         *
       Paez Sarmientos’s petition is GRANTED, and we VACATE AND
REMAND for further proceedings consistent with this opinion.




       49  State v. Adkins, 96 So. 3d 412, 415-16 (Fla. 2012) (explaining that “knowledge of the
illicit nature of the controlled substance” is no longer an element of the Florida crime that
the prosecution must prove beyond a reasonable doubt); see Donawa, 735 F.3d at 1282-83
(rejecting the argument that the prosecution ever bears the burden to prove that the
defendant knew of the illicit nature of the substance under Florida law, even when the
defendant raises the affirmative defense of lack of knowledge).
       50   Moncrieffe, 133 S. Ct. at 1684 (internal quotation marks and alterations omitted).


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