940 F.3d 616
11th Cir.2019Background
- Dimitrios Bourtzakis, a Greek citizen and long‑time U.S. resident, was convicted in Washington (1992) of delivery of cocaine under Wash. Rev. Code § 69.50.401(a)(1)(i).
- In 2016 he applied for naturalization; DHS denied the application because the conviction was treated as an "aggravated felony" under 8 U.S.C. § 1101(a)(43), barring a showing of good moral character.
- Bourtzakis sued under 8 U.S.C. § 1421(c); the government moved to dismiss, arguing the Washington offense categorically equals a federal "drug trafficking crime" (18 U.S.C. § 924(c)(2) / 21 U.S.C. § 841).
- Bourtzakis argued the Washington statute is broader than the federal law for two reasons: (1) Washington accomplice liability is broader than federal aiding‑and‑abetting, and (2) Washington proscribes "administering," which he claimed the federal Act does not.
- The district court dismissed; the Eleventh Circuit reviewed de novo, applied the categorical approach, rejected Bourtzakis’s arguments, and affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Washington delivery conviction categorically qualifies as an aggravated felony (a federal "drug trafficking crime"). | Bourtzakis: State statute is broader than the federal CSA, so conviction does not categorically match a federal drug felony. | Government: The state offense proscribes conduct punishable as a felony under the Controlled Substances Act, so it qualifies. | Held: Yes; the conviction categorically qualifies as an aggravated felony. |
| Whether Washington accomplice liability is broader than federal aiding‑and‑abetting, making the state statute overbroad. | Bourtzakis: Washington requires only knowledge that aid will "promote or facilitate" a crime (broader mens rea) so it reaches conduct federal law does not. | Government: Federal law reaches aiders/abettors by proof of active participation with knowledge; Washington law as interpreted does not extend significantly beyond federal law. | Held: Washington and federal accomplice mens rea align in practice; Bourtzakis failed to show a realistic probability the state law is broader. |
| Whether "administering" a controlled substance is proscribed by federal law (so Washington is not broader). | Bourtzakis: Federal definition of "distribute" excludes "administering," so state prohibition of administering would be broader. | Government: Federal law also prohibits "dispensing," which includes "administering," so federal law covers administering. | Held: Federal CSA covers administering (via "dispense"/"dispensing"); Washington is not broader on this ground. |
| Whether Bourtzakis forfeited the accomplice‑liability argument on appeal. | Bourtzakis: He preserved the challenge to the aggravated‑felony determination and may advance arguments on appeal. | Government: Argued forfeiture. | Held: No forfeiture; party may raise new arguments in support of an issue preserved below. |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (explains categorical approach for state drug convictions under immigration law)
- Duenas‑Alvarez v. Gonzales, 549 U.S. 183 (requires realistic probability that state statute would reach conduct outside federal offense)
- Rosemond v. United States, 572 U.S. 65 (describes federal mens rea for aiding and abetting as requiring active participation with knowledge)
- Pereira v. United States, 347 U.S. 1 (aiding/abetting intent satisfied by knowledge of co‑conspirator's actions)
- Bozza v. United States, 330 U.S. 160 (aider/abettor liability sustained where defendant knew business violated law)
- United States v. Valdivia‑Flores, 876 F.3d 1201 (9th Cir. decision adopting the contrary view on Washington accomplice mens rea)
- Ramos v. U.S. Atty. Gen., 709 F.3d 1066 (statutory language can itself show realistic probability of overbreadth)
- State v. Cronin, 14 P.3d 752 (Wash. 2000) (Washington Supreme Court construes accomplice knowledge requirement as knowledge of the specific crime charged)
- United States v. Joseph, 709 F.3d 1082 (11th Cir. framework for proving federal aiding‑and‑abetting mens rea)