Background

• Petitioner Andres Paez Sarmientos, a lawful permanent resident, pleaded guilty in Florida (2005) to delivery of cocaine under Fla. Stat. § 893.13(1)(a)(1); adjudication was withheld and he received probation.
• Upon returning to the U.S. in 2012, DHS denied admission and initiated removal based on the 2005 conviction as a controlled-substance offense.
• The IJ found him inadmissible and concluded the Florida conviction was an aggravated felony, rendering him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a).
• The BIA affirmed, reasoning the Florida statute was sufficiently analogous to the federal drug-distribution statute (21 U.S.C. § 841(a)(1)), despite Florida treating knowledge of illicit nature as an affirmative defense under Fla. Stat. § 893.101.
• The Fifth Circuit granted review of the purely legal issue whether the Florida conviction is categorically an aggravated felony and considered the categorical/modified categorical framework from Moncrieffe and Descamps.
• The court held the Florida delivery statute, as modified by § 893.101, does not categorically match the federal offense because Florida permits conviction without the prosecution proving knowledge of the illicit nature beyond a reasonable doubt.

Issues

Key Cases Cited

• Moncrieffe v. Holder, 133 S. Ct. 1678 (U.S. 2013) (describes categorical approach for INA drug-conviction consequences)
• Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (limits modified categorical approach to divisible statutes with alternative elements)
• Donawa v. U.S. Att’y Gen., 735 F.3d 1275 (11th Cir. 2013) (held Fla. § 893.13 is not a categorical aggravated felony because knowledge need not be proven)
• Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013) (jurisdictional rule on reviewability of aggravated-felony removal orders)
• United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir. 2003) (establishes § 841(a)(1) requires knowledge that substance is a controlled substance)