            Case: 18-14513   Date Filed: 06/24/2020   Page: 1 of 14



                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14513
                       ________________________

                         Agency No. A044-849-370



KEEFE GORDON,

                                                                      Petitioner,


                                   versus


UNITED STATES ATTORNEY GENERAL,

                                                                      Respondent.

                       ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                         ________________________

                               (June 24, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit
Judges.

JILL PRYOR, Circuit Judge:
              Case: 18-14513      Date Filed: 06/24/2020   Page: 2 of 14



      Keefe Gordon, a native and citizen of Jamaica, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s

(“IJ”) determination that his prior state conviction qualified as an aggravated

felony under 8 U.S.C. § 1227(a)(2)(A)(iii), rendering him removable and ineligible

for cancellation of removal. See 8 U.S.C. § 1229b(a)(3). After careful review, and

with the benefit of oral argument, we deny Gordon’s petition for review of the

BIA’s decision.

                             I.      BACKGROUND

      Gordon was admitted to the United States as a lawful permanent resident in

1995. Beginning about eight years later, he was convicted of various offenses in

Georgia. These included convictions in 2003 for possession with intent to

distribute ecstasy, in violation of O.C.G.A. § 16-13-30(b) and (d), and obstruction

of a police officer, in violation of O.C.G.A. § 16-10-24(a), and convictions in 2006

for possession of cocaine, in violation of O.C.G.A. § 16-13-30(b); possession of a

firearm by a felon, in violation of O.C.G.A. § 16-11-131; and theft by receipt of

stolen property, in violation of O.C.G.A. § 16-8-7.

      In 2017, the Department of Homeland Security (“DHS”) charged Gordon as

removable based on his convictions for an aggravated felony involving a drug

trafficking crime, 8 U.S.C §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii); an aggravated

felony involving possession of a firearm by a convicted felon, id.


                                           2
               Case: 18-14513      Date Filed: 06/24/2020      Page: 3 of 14



§§ 1101(a)(43)(E), 1227(a)(2)(A)(iii); a controlled substance offense, id.

§ 1227(a)(2)(B)(i); a firearms offense, id. § 1227(a)(2)(C); and two crimes

involving moral turpitude, id. § 1227(a)(2)(A)(ii).1 Gordon denied the

government’s allegations of fact and that he had an aggravated felony and argued

that he was not removable as charged. He further argued that even if he were to be

found removable, he would be eligible for cancellation of removal as a lawful

permanent resident under 8 U.S.C. § 1229b(a). Section 1229b(a) permits

cancellation of removal for a noncitizen who has: (1) been a lawful permanent

resident for at least five years, (2) “has resided in the United States continuously

for 7 years after having been admitted in any status,” and (3) “has not been

convicted of any aggravated felony.” Id. Because Gordon met the first two

requirements of § 1229b(a), his removability turned ultimately on whether he had

been convicted of an aggravated felony.

       After a hearing, an IJ determined that Gordon was removable for having

been convicted of an aggravated felony, specifically, his 2003 conviction for

possession with intent to distribute the drug “ecstasy,” because that offense was a

drug trafficking crime involving a substance listed on the schedules to the federal




       1
         Gordon was also charged as removable for having been convicted of an aggravated
felony relating to a theft; however, DHS withdrew this charge.
                                             3
               Case: 18-14513       Date Filed: 06/24/2020      Page: 4 of 14



Controlled Substances Act (“CSA”). 2 See id. §§ 1101(a)(43)(B),

1227(a)(2)(A)(iii). The IJ acknowledged Gordon’s argument that O.C.G.A. § 16-

13-30 encompassed more substances than those found on the federal schedules and

thus was broader than the CSA. But the IJ concluded that he could look to

Gordon’s record of conviction to determine the substance that was involved.

Looking to Gordon’s record of conviction, the IJ found that he pled guilty to, and

was convicted of, possession with intent to distribute ecstasy.

       The IJ then determined that Gordon’s conviction under § 16-13-30 was a

drug trafficking crime and therefore an aggravated felony because ecstasy was a

controlled substance under both Georgia and federal law. Based on that

determination, the IJ concluded that Gordon was removable and, because his

conviction was an aggravated felony, he was ineligible for cancellation of removal.

See 8 U.S.C. § 1229b(a)(3). The IJ ordered him removed to Jamaica.

       Gordon appealed the IJ’s decision to the BIA, arguing that he had not been

convicted of an aggravated felony or a controlled substance violation and that he

was eligible for cancellation of removal. The BIA disagreed. It concluded that his

2003 conviction for possession with intent to distribute ecstasy was an aggravated


       2
          The IJ also determined that Gordon was removable based on his prior controlled
substance offenses, specifically his 2003 and 2006 convictions involving ecstasy and cocaine.
See id. § 1227(a)(2)(B)(i). Because the BIA addressed only whether Gordon’s conviction under
§ 16-13-30 qualified as an aggravated felony, we do not address any of the other grounds on
which the IJ found him removable. See Imelda v. U.S. Att’y. Gen., 611 F.3d 724, 727 (11th Cir.
2010).
                                               4
              Case: 18-14513       Date Filed: 06/24/2020   Page: 5 of 14



felony, rendering him ineligible for cancellation of removal, and dismissed his

appeal. Gordon petitioned our Court for review of the BIA’s decision.

                     II.       STANDARDS OF REVIEW

      We review the BIA’s decision alone where, as here, it did not expressly

adopt the IJ’s opinion or reasoning. Imelda v. U.S. Att’y. Gen., 611 F.3d 724, 727

(11th Cir. 2010). We review questions of law, such as whether a conviction

qualifies as an aggravated felony, de novo. Spaho v. U.S. Att’y Gen., 837 F.3d

1172, 1176 (11th Cir. 2016).

                            III.        DISCUSSION

      A noncitizen convicted of “an aggravated felony” is removable. See 8

U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes a conviction

for a “drug trafficking crime,” which is defined as “any felony punishable under

the Controlled Substances Act.” See id. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2).

If Gordon’s conviction qualifies as an aggravated felony, he is both removable and

ineligible for cancellation of removal under 8 U.S.C. § 1229b(a). The question we

must address in this appeal is whether the BIA correctly determined that Gordon’s

2003 conviction under O.C.G.A. § 16-13-30 for possession with intent to distribute

ecstasy qualified as a “felony punishable under the Controlled Substances Act” and

thus as an aggravated felony involving a drug trafficking crime.




                                            5
               Case: 18-14513     Date Filed: 06/24/2020     Page: 6 of 14



      Courts analyzing whether a conviction under a state statute qualifies as an

aggravated felony “apply a categorical or modified categorical approach,

depending on the statutory scheme.” Donawa v. U.S. Att’y Gen., 735 F.3d 1275,

1280 (11th Cir. 2013). Under the categorical approach, a court is permitted to

examine only whether the “state statute defining the crime of conviction

categorically fits within the generic federal definition of a corresponding

aggravated felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal

quotation marks omitted).

      If the state statute is broader, meaning that it does not fit entirely within the

generic federal definition of a corresponding aggravated felony, a court may look

to whether the state statute is “divisible.” A statute is divisible if it “lists a number

of alternative elements that effectively create several different crimes.” Guillen v.

U.S. Att’y Gen., 910 F.3d 1174, 1180 (11th Cir. 2018) (internal quotation marks

omitted). A divisible statute “permit[s] the use of the modified categorical

approach to uncover whether [a person’s] convictions relate to a federally

controlled substance.” Id. at 1179. Under the modified categorical approach, a

court may look to a small set of record documents, commonly referred to as

“Shepard documents,” to determine the elements of the defendant’s offense of

conviction. See Shepard v. United States, 544 U.S. 13, 26 (2005); Guillen, 910

F.3d at 1180. Shepard documents can consist of “a plea agreement, the transcript


                                            6
              Case: 18-14513     Date Filed: 06/24/2020    Page: 7 of 14



of a plea colloquy, the charging document, jury instructions, or a comparable

judicial record of this information.” Guillen, 910 F.3d at 1180 (internal quotation

marks omitted) (citing Shepard, 544 U.S. at 26; Descamps v. United States, 570

U.S. 254, 262 (2013)).

      Gordon argues that his offense involving ecstasy does not qualify as an

aggravated felony because § 16-13-30 is broader than the federal CSA and is

indivisible. Therefore, he argues, we cannot look to his record of conviction to

determine what substance the conviction involved. He further argues that even if

we could look to his record of conviction, it reveals that he possessed ecstasy,

which is not a federally controlled substance. We discuss each of Gordon’s

arguments in turn.

A.    Georgia Statute § 16-13-30(b) Is Divisible.

      The parties agree that § 16-13-30 encompasses substances that are not

included on the schedules to the CSA; therefore, not all convictions under the

Georgia statute categorically constitute aggravated felonies involving drug

trafficking crimes. See Descamps, 570 U.S. at 261. We agree with the parties. To

determine whether Gordon’s statute of conviction qualifies as an aggravated

felony, then, we must first evaluate whether the statute is divisible.

      Gordon argues that § 16-13-30’s list of controlled substances in its

Schedules I and II are means of committing the offense rather than different


                                           7
              Case: 18-14513      Date Filed: 06/24/2020    Page: 8 of 14



elements and therefore the statute is indivisible as to the identity of the controlled

substance. Georgia case law, however, indicates that the controlled substance is an

element of the offense, rendering § 16-13-30 divisible.

      It is “easy” to determine whether a statute sets forth alternative elements or

means where “the statute on its face” resolves the issue or “a state court decision

definitively answers the question.” Mathis v. United States, 136 S. Ct. 2243, 2256

(2016). In Guillen, we analyzed whether a Florida statute that contained a list of

controlled substances, like the Georgia statute here, set forth alternative elements

or means. Guillen, 910 F.3d at 1179-84. We looked to Florida case law because,

as is also true here, “the statute on its face fail[ed] to provide a clear answer on

divisibility.” Id. at 1181-82. We held that Florida case law implied that the statute

was divisible because it permitted a defendant to be convicted of “both possession

of marijuana and possession of a hallucinogenic drug, even though the offenses

were merely different facets of the same transaction.” Id. at 1182 (internal

quotation marks omitted).

      The same is true of Georgia case law’s treatment of § 16-13-30(b) and (d).

Section 16-13-30(b) makes it unlawful “for any person to . . . possess with intent to

distribute any controlled substance.” O.C.G.A. § 16-13-30(b). Subsection (d)

provides that “any person who violates subsection (b) of this Code section with

respect to a controlled substance in Schedule I or Schedule II shall be guilty of a


                                           8
               Case: 18-14513     Date Filed: 06/24/2020     Page: 9 of 14



felony.” Id. § 16-13-30(d). In Tabb v. State, the Georgia Supreme Court held that

Georgia could charge and convict a defendant in separate counts for simultaneous

possession of three different Schedule II controlled substances. 297 S.E.2d 227,

230 (Ga. 1982). The Court expressly rejected Tabb’s contention that the illegal

possession of several controlled substances amounted to a single offense. Id.

Analyzing the language of the statute and Georgia law, the Georgia Supreme Court

determined that “simultaneous possession of each of the controlled substances

listed in Schedule II . . . is a separate offense for which the legislature meant to

impose punishment.” Id. Where the state’s highest court “has told us that the

elements of possession of [several controlled substances] are different, it has

implicitly told us that the identity of the substance possessed is an element of

possession.” Guillen, 910 F.3d at 1182.

      Because the Georgia Supreme Court has told us that possession of each of

the “controlled substances listed . . . is a separate offense,” that settles the matter:

the identity of the controlled substances in § 16-13-30 is an element of the offenses

criminalized in that statute. Tabb, 297 S.E.2d at 230; see Guillen, 910 F.3d at

1182. We therefore conclude that § 16-13-30 is divisible, and the modified

categorical approach applies.

B.    The BIA Did Not Err in Determining that Ecstasy Is a Federally
      Controlled Substance Under Georgia Law.



                                            9
                Case: 18-14513       Date Filed: 06/24/2020      Page: 10 of 14



      We now apply the modified categorical approach to determine whether

Gordon’s conviction under § 16-13-30 qualifies as an aggravated felony involving

a drug trafficking crime. Under the modified categorical approach, we identify the

substance Gordon was convicted of possessing and then evaluate whether that

substance corresponds with a federally controlled substance. See Guillen, 910 F.3d

at 1185.

      Gordon’s indictment reveals that the substance he was convicted of

possessing with the intent to distribute was “ecstasy.” AR. at 666-68, 6753; see

Shepard, 544 U.S. at 26. Gordon does not disagree that his conviction involved

ecstasy. Instead he contends that because ecstasy is not listed in either the Georgia

or federal controlled substances schedules, and the Shepard documents do not

reveal the chemical substances that made up the ecstasy he possessed, the drug is

not a controlled substance under the CSA. Therefore, he argues, he was not

convicted of a “felony punishable under” the CSA. 8 U.S.C. § 1101(a)(43)(B); 18

U.S.C. § 924(c)(2).

      The CSA defines the term “controlled substance” as “a drug or other

substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B

of this subchapter.” 21 U.S.C. § 802(6). Ecstasy is not included in the federal

controlled substance schedules; however, 3, 4-methylenedioxymethamphetamine


      3
          Citations to “AR” refer to the administrative record in Gordon’s removal proceedings.
                                               10
             Case: 18-14513     Date Filed: 06/24/2020   Page: 11 of 14



(“MDMA”) is listed. See 21 C.F.R. § 1308.11(d)(11). The government argues that

because Georgia law refers to MDMA as ecstasy, Gordon was convicted of

possessing with the intent to distribute MDMA, a federally controlled substance.

      We agree that Georgia case law indicates that Georgia courts refer to

MDMA as ecstasy. For example, in Cooper v. State, Cooper was charged for the

possession of N-Benzylpiperazine, commonly known as BZP, a Schedule I

controlled substance in Georgia. 728 S.E.2d 289, 290 (Ga. Ct. App. 2012).

Cooper argued that the State’s evidence against him was insufficient because he

did not knowingly possess BZP but possessed “a different Schedule I controlled

substance, ecstasy.” Id. at 291. The court rejected the argument because Cooper’s

knowledge was a question for the jury, and the jury could have inferred from

circumstantial evidence that he knew he possessed the chemical compound BZP,

not ecstasy. Id. In its analysis of Cooper’s argument, the court recognized that

“MDMA or ecstasy is a Schedule I controlled substance denominated 3, 4–

Methylenedioxymethamphetamine.” Id. at 291 n.2 (emphasis added) (internal

quotation marks omitted). Cooper suggests that Georgia courts refer to MDMA,

and not other controlled substances, as ecstasy.

      Other cases support the conclusion that in Georgia ecstasy refers to MDMA.

See Jackson v. State, 724 S.E.2d 9, 11 (Ga. Ct. App. 2012) (recounting that two

defendants were “convicted of trafficking in 3, 4–


                                         11
             Case: 18-14513     Date Filed: 06/24/2020    Page: 12 of 14



methylenedioxymethamphetamine (‘MDMA’ or ‘ecsta[s]y’)”); Gibson v. State,

706 S.E.2d 585, 585-86 & n.1 (Ga. Ct. App. 2011) (noting that the defendant was

convicted of “trafficking in MDMA (‘ecsta[s]y’)”); Taylor v. State, 702 S.E.2d 28,

28-29 (Ga. Ct. App. 2010) (explaining that the defendant “was convicted of

possession of MDMA (‘Ecstasy’) (footnote omitted)); Vines v. State, 675 S.E.2d

260, 262 n.1 (Ga. Ct. App. 2009) (“MDMA is an abbreviation for 3, 4-

Methylenedioxymethamphetamine and is commonly known as ‘Ecstasy.’”).

      Relying on Farley v. State, 732 S.E.2d 131 (Ga. Ct. App. 2012), Gordon

argues that Georgia also treats other chemicals besides MDMA as ecstasy and

therefore ecstasy does not necessarily refer to MDMA. In Farley, the defendant

was charged and convicted of, among other offenses, the sale of ecstasy. Id. at

132. The court noted that the ecstasy pills Farley sold tested positive for “the

presence of N-benzylpiperazine (BZP) and 1–(3–trifluoromethylphenyl) piperazine

(TFMPP).” Id. at 133. We are unpersuaded by Gordon’s argument that Farley

leads us to a different conclusion regarding whether ecstasy was a federally

controlled substance.

      Although the pills at issue in Farley were charged as ecstasy but contained

BZP and TFMPP, at the time of Gordon’s conviction those two substances were

listed on the federal controlled substances schedules. See 21 C.F.R.

§ 1308.11(g)(3)-(4) (2003). BZP and TFMPP were added to the federal schedules


                                          12
                Case: 18-14513       Date Filed: 06/24/2020        Page: 13 of 14



specifically because when combined they imitate the effects of MDMA and are

sold as such. See Schedules of Controlled Substances; Placement of 2,5-

Dimethoxy-4-(n)-propylthiophenethylamine and N-Benzylpiperazine Into

Schedule I of the Controlled Substances Act, 69 Fed. Reg. 12,794, 12,795 (Mar.

18, 2004). Thus, even if we accepted that in Georgia ecstasy could refer to BZP

and TFMPP—meaning that Gordon’s conviction for possessing with the intent to

distribute ecstasy could have involved these controlled substances instead of

MDMA—Gordon’s conviction would nonetheless qualify as an aggravated

felony.4 21 C.F.R. § 1308.11(g)(3)-(4) (2003).

       Because the controlled substances at issue in Farley were nonetheless

federally controlled substances, we reject Gordon’s argument that Farley means he

could have been convicted of possessing with the intent to distribute a substance

not listed on the federal controlled substances schedules. We thus conclude that

Gordon’s conviction under § 16-16-30 qualifies as a felony punishable under the

CSA. The BIA therefore correctly determined that he was removable and



       4
          Gordon argues that we must compare his conviction with the federal controlled
substances schedules in effect at the time of his removal proceedings rather than those in effect at
the time of his conviction. He is incorrect. In assessing whether a noncitizen’s conviction
qualifies as an aggravated felony, we compare his offense of conviction to the CSA schedules in
effect when he was convicted. See Mellouli v. Lynch, 135 S. Ct. 1980, 1988 (2015) (comparing
the state controlled substance schedules with the federal schedules in place “[a]t the time of
Mellouli’s conviction”); see also Collymore v. Lynch, 828 F.3d 139, 142 n.4 (2d Cir. 2016)
(noting that the court’s references to the federal controlled substance schedules concern the
“version of the federal drug schedules in effect at the time of Collymore’s conviction”).
                                                13
               Case: 18-14513   Date Filed: 06/24/2020   Page: 14 of 14



ineligible for cancellation of removal based on an aggravated felony for a drug

trafficking crime. See 8 U.S.C. §§ 1101(a)(43)(B), 1229b(a)(3); 18 U.S.C.

§ 924(c)(2).

      PETITION DENIED.




                                         14
