7 F.4th 1046
11th Cir.2021Background
- Charles Simpson, a Bahamian native and lawful permanent resident, pled guilty in Florida (2018) to being a felon in possession under Fla. Stat. § 790.23(1)(a) and to improper exhibition of a weapon; DHS charged him removable under INA § 1227(a)(2)(C) as an alien convicted of a "firearm offense" (cross‑referencing 18 U.S.C. § 921(a)(3)).
- The immigration judge found Simpson removable and denied a continuance for a U‑visa application; the BIA affirmed, finding the Florida statute divisible and Simpson’s conviction corresponded to possession of a firearm (a shotgun) in the charging document.
- Simpson appealed to the Eleventh Circuit, arguing (1) the notice to appear lacked time/place (Pereira challenge) and (2) § 790.23(1)(a) is not a firearm offense under the INA because it criminalizes possession of ammunition and non‑firearm weapons.
- The Eleventh Circuit treated the notice‑to‑appear jurisdictional argument as foreclosed by Perez‑Sanchez and examined only whether § 790.23(1)(a) qualifies as a firearm offense under §§ 1227(a)(2)(C) and 921(a)(3).
- The court concluded § 790.23(1)(a) is categorically overbroad (it covers ammunition and non‑firearm items) and is indivisible with respect to its list of prohibited items because those items are means, not elements; thus Simpson’s conviction is not a removable firearm offense.
- The Eleventh Circuit granted Simpson’s petition and vacated the BIA’s removal order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fla. Stat. § 790.23(1)(a) is a "firearm offense" under INA § 1227(a)(2)(C) (via 18 U.S.C. § 921(a)(3)) | Simpson: statute is categorically overbroad and not divisible; it punishes possession of ammunition and non‑firearms, so conviction is not a federal "firearm" offense | Government: statute is divisible by the listed items; record (charging document) shows Simpson possessed a firearm (shotgun), matching § 921(a)(3) | Court: held statute indivisible as to listed items; the listed items are means not elements; conviction does not qualify as a firearm offense; petition granted |
| Whether a defective notice to appear (no time/place) deprived the immigration judge of jurisdiction | Simpson: NTA without time/place invalid under Pereira; IJ lacked jurisdiction | Government/BIA: subsequent notice of hearing cures defect (Bermudez‑Cota) | Court: issue foreclosed by Perez‑Sanchez in Eleventh Circuit; Court resolved only the firearm‑offense question |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (NTA lacking time/place does not satisfy § 1229(a)(1))
- Perez‑Sanchez v. U.S. Att'y Gen., 935 F.3d 1148 (11th Cir. 2019) (time‑and‑place requirement not jurisdictional in Eleventh Circuit)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for divisibility analysis)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical and modified categorical approaches explained)
- Mellouli v. Lynch, 575 U.S. 798 (2015) (removal based on convictions, not conduct; categorical approach applied)
- Aspilaire v. U.S. Att'y Gen., 992 F.3d 1248 (11th Cir. 2021) (addressing antique‑firearm argument under Fla. § 790.23(1)(a))
- Guillen v. U.S. Att'y Gen., 910 F.3d 1174 (11th Cir. 2018) (government burden and use of state‑court precedent to interpret state law)
- Cintron v. U.S. Att'y Gen., 882 F.3d 1380 (11th Cir. 2018) (use of state statutory language and decisional law in divisibility inquiry)
- Donawa v. U.S. Att'y Gen., 735 F.3d 1275 (11th Cir. 2013) (applying categorical approach in immigration context)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (statutory alternatives that trigger different punishments are elements)
- Blockburger v. United States, 284 U.S. 299 (1932) (same‑elements test for double jeopardy)