           Case: 13-12562   Date Filed: 02/28/2014   Page: 1 of 10


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12562
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:12-cr-00292-CLS-JEO-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DOMINGO BEIZA-HERNANDEZ,
a.k.a. Domingo Beiza Hernandez,
a.k.a. Domingo B. Hernandez,
a.k.a. Daniel Dias Duran,


                                                          Defendant-Appellant.
                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (February 28, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Domingo Beiza-Hernandez appeals his sentence of time served after

pleading guilty to illegal reentry into the United States by a deported alien, in

violation of 8 U.S.C. § 1326(a). On appeal, he challenges the District Court’s

application of an eight-level increase to his offense level based on the court’s

finding that his prior North Carolina conviction of possession with intent to sell or

deliver more than 28 but less than 200 grams of cocaine (the “North Carolina

offense”), for which he was sentenced to 8 to 10 months’ imprisonment, qualified

as an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). He argues that the

district court erred in treating the North Carolina offense as an aggravated felony

because, under North Carolina’s then-mandatory sentencing scheme, he could not

have received a sentence in excess of 12 months’ imprisonment. In addition to

arguing that the North Carolina offense qualified as an aggravated felony, the

government argues that Beiza-Hernandez’s appeal is moot because he has already

served his sentence of imprisonment and been removed from the United States.

                                           I.

      We review whether a case is moot de novo. United States v. Al-Arian, 514

F.3d 1184, 1189 (11th Cir. 2008). Before assuming jurisdiction over any case, we

must resolve any question of mootness. Id.

      “Article III of the Constitution limits the jurisdiction of the federal courts to

the consideration of ‘Cases’ and ‘Controversies.’” Id. “[A]n action that is moot


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cannot be characterized as an active case or controversy. A case is moot when the

issues presented are no longer ‘live’ or the parties lack a legally cognizable interest

in the outcome.” Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001)

(quotations, alterations, and citation omitted). “The fundamental question with

respect to mootness is whether events have occurred subsequent to the filing of an

appeal that deprive the court of the ability to give the appellant meaningful relief.”

Al-Arian, 514 F.3d at 1189 (quotations, alterations, and ellipses omitted). We

recognize three general exceptions to the mootness doctrine: “(1) the issues are

capable of repetition, yet evading review; (2) an appellant has taken all steps

necessary to perfect the appeal and to preserve the status quo; and (3) the trial

court’s order will have possible collateral legal consequences.” Wakefield v.

Church of Scientology of Cal., 938 F.2d 1226, 1229 (11th Cir. 1991). In United

States v. Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991), an appeal raising

sentencing issues, we held the appeal moot because the appellant had completed

his sentence and advanced no argument that there may be other benefits in having

his sentence reduced.

      Under the Immigration and Nationality Act (“INA”), an alien may avoid

removal from the United States and adjust his status to that of an alien lawfully

admitted for permanent residence if the alien: (1) “has been physically present in

the United States for a continuous period of not less than 10 years immediately


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preceding the date of such application”; (2) “has been a person of good moral

character during such period”; (3) “has not been convicted of an offense under [8

U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3)]”; and (4) “establishes that

removal would result in exceptional and extremely unusual hardship to the alien’s

spouse, parent, or child, who is a citizen of the United States or an alien lawfully

admitted for permanent residence.” INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

An alien convicted of a violation of “any law or regulation of a State, the United

States, or a foreign country relating to a controlled substance” is inadmissible and

ineligible for cancellation of removal. 8 U.S.C. § 1182(a)(2)(A)(i)(II); see INA

§ 240A(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C). An alien is also ineligible for

cancellation of removal if he is convicted of an aggravated felony after admission.

8 U.S.C. § 1227(a)(2)(A)(iii); see INA § 240A(b)(1)(C), 8 U.S.C. §

1229b(b)(1)(C).

      In United States v. Orrega, we held that that the government’s appeal of an

alien’s sentence was not rendered moot by his removal from the country. 363 F.3d

1093, 1095-96 (11th Cir. 2004). There continued to be an active controversy in the

case because Orrega might, at some point, reenter the United States. Id. at 1095.

We noted that “[a]lthough not dispositive, this possibility of re-entry is made more

likely by the fact that Orrega lived in the United States for most of his life, and his

entire family is in this country.” Id. at 1095 n.2. Even though the possibility of


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reentry was speculative, it prevented the government’s appeal from being moot.

Id.

      In Mingkid v. U.S. Att’y Gen., we reviewed a Board of Immigration Appeals

(“BIA”) decision that concluded, in relevant part, that the Mingkids’ applications

for asylum were frivolous. 468 F.3d 763, 767 (11th Cir. 2006). On appeal, the

government argued that we lacked the power to grant the Mingkids meaningful

relief as to this issue because reversing the frivolity determination would not have

any effect given that the Mingkids had already been ordered removed on other

grounds and were thus inadmissible to the United States. Id. at 768. The

government claimed that the issue was moot because there was only a speculative

possibility that the frivolity finding would have consequence if the Mingkids

applied for some future benefit under the INA. Id. We held that the issue was not

moot because “vacating such a determination incontrovertibly leaves [the

Mingkids] in better position than they would be in without our relief.” Id. at 768-

69.

      Beiza-Hernandez’s removal after the completion of his sentence did not

moot the sentencing issue raised in this appeal. There continues to be an active

controversy in this case because Beiza-Hernandez may, at some point in the future,

reenter the United States. This possibility, while speculative, is made more likely

by the fact that he has lived in the United States since he was eight years old and


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has a number of family members currently living in the United States. See Orrega,

363 F.3d at 1095 n.2. Moreover, we have the power to grant Beiza-Hernandez

meaningful relief. The record currently contains a finding that his North Carolina

offense constituted an aggravated felony. If he applies for any relief under the

INA, this finding will have consequences, such as making him ineligible for

cancellation of removal; and vacating this decision would undoubtedly leave him

in a better position than he would be without relief. See 8 U.S.C.

§§ 1227(a)(2)(A)(iii), 1229b(b)(1)(C). Avoiding the mootness doctrine does not

require that he show that he would necessarily succeed in obtaining cancellation

but only that the judgment in this case has possible collateral legal consequences,

such as impacting future proceedings under the INA. See Wakefield, 938 F.2d at

1229.

                                          II.

        We review a district court’s application of the Sentencing Guidelines de

novo. United States v. Aldrich, 566 F.3d 976, 977 n.2 (11th Cir. 2009). The

interpretation of criminal statutes is a question of law that we also review de novo.

United States v. Murrell, 368 F.3d 1283, 1285 (11th Cir. 2004).

        The Sentencing Guidelines mandate an eight-level increase to a defendant’s

offense level for the crime of unlawfully entering or remaining in the United States

if he was deported or unlawfully remained here after a conviction for an


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aggravated felony. U.S.S.G. § 2L1.2(b)(1)(C). The application notes to § 2L1.2

include a definition of “felony,” which requires that the federal, state, or local

offense be punishable by a term of imprisonment exceeding one year, but this

definition specifically does not apply to subsection (b)(1)(C). See id. § 2L1.2,

comment. (n.2). For the purposes of applying this sentencing guideline,

“aggravated felony” has the meaning assigned in 8 U.S.C. § 1101(a)(43). Id.

§ 2L1.2, comment. (n.3(A)). Section 1101(a)(43) defines an aggravated felony as,

among other things, “illicit trafficking in a controlled substance (as defined in [21

U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.

§ 924(c)]).” 8 U.S.C. § 1101(a)(43)(B). Cocaine is a schedule II controlled

substance. See 21 U.S.C. §§ 802(6), 812(c). Section 924(c) defines a “drug

trafficking crime” as any felony punishable under the Controlled Substances Act

(“CSA”). 18 U.S.C. § 924(c)(2). In general, a felony is any crime for which the

maximum term of imprisonment authorized is greater than one year. See 18 U.S.C.

§ 3559(a).

      In Lopez v. Gonzalez, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006),

the Supreme Court addressed the question of “whether conduct made a felony

under state law but a misdemeanor under the [CSA] is a ‘felony punishable under

the [CSA].’” Id. at 50, 127 S.Ct. at 627 (quoting 18 U.S.C. § 924(c)(2)). Lopez

received a sentence of five years’ imprisonment for the state offense of aiding and


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abetting another person’s possession of cocaine. Id. at 51, 127 S.Ct. at 628. The

government began removal proceedings against Lopez and alleged, in relevant

part, that his state conviction qualified as an aggravated felony. Id. The Supreme

Court noted that mere possession of cocaine was not a felony under the CSA. Id.

at 53, 127 S.Ct. at 629. The Supreme Court stated that to determine which state

offenses qualified as felonies punishable under the CSA, the proper place to look

was to the CSA’s definitions of crimes punishable as felonies. Id. at 55, 127 S.Ct.

at 630. The Court’s analysis confirmed “that a state offense whose elements

include the elements of a felony punishable under the CSA is an aggravated

felony.” Id. at 57, 127 S.Ct. at 631. “[T]he crimes the CSA defines as ‘felonies’

are those crimes to which it assigns a punishment exceeding one year’s

imprisonment.” Id. at 56 n.7, 127 S.Ct. at 631 n.7. As applied to Lopez, the

government’s reliance on the greater-than-one-year sentence under state law to

define the crime as an aggravated felony was misplaced. Id. at 57, 127 S.Ct. at

632.

       Under North Carolina law, it is a crime to “possess with intent to

manufacture, sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-

95(a)(1). “Deliver” means “the actual constructive, or attempted transfer from one

person to another of a controlled substance.” Id. § 90-87(7).




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      The CSA prohibits knowingly or intentionally possessing “with intent to

manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C.

§ 841(a)(1). Under the CSA, “distribute” means “to deliver . . . a controlled

substance,” and “deliver” means “the actual, constructive, or attempted transfer of

a controlled substance.” Id. § 802(8), (11). The maximum statutory penalty for

possession with intent to distribute any amount of cocaine less than 500 grams is

20 years’ imprisonment. Id. § 841(b)(1)(C).

      The District Court did not err in finding that Beiza-Hernandez’s North

Carolina offense qualified as an aggravated felony. The parties do not dispute that

Beiza-Hernandez was deported in 2008, four years after his conviction for that

offense. Regardless of the sentence he could have received under North Carolina

law, the relevant inquiry remains whether the state offense of which he was

convicted qualifies as an aggravated felony because it contains elements

punishable under the CSA by a term of imprisonment exceeding one year. See

Lopez, 549 U.S. at 56 n.7, 57, 127 S.Ct. at 631 & n.7. The elements of the North

Carolina offense mirror the elements of possession with intent to distribute under

the CSA. Both offenses require proof that a defendant possessed with the intent to

deliver or distribute a controlled substance, and they use virtually identical

definitions for the terms deliver and distribute, the only relevant terms that are not

repeated verbatim in both statutes. Compare N.C. Gen. Stat. §§ 90-95(a)(1) (using


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term “deliver”), 90-87(7), with 21 U.S.C. §§ 802(8), (11), 841(a)(1) (using term

“distribute”). Thus, Beiza-Hernandez’s North Carolina offense qualifies as a

felony punishable under the CSA, a drug-trafficking crime as defined in 18 U.S.C.

§ 924(c), and an aggravated felony under 8 U.S.C. § 1101(a)(43). Accordingly, the

district court properly applied an eight-level increase to Beiza-Hernandez’s offense

level based on the fact that he had been deported following the commission of an

aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(C). Beiza-Hernandez’s conviction

is, accordingly,

      AFFIRMED.




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