Donald Franco-Casasola v. Eric Holder, Jr.
2014 U.S. App. LEXIS 20647
| 5th Cir. | 2014Background
- Franco-Casasola, a lawful permanent resident, pled guilty under 18 U.S.C. § 554(a) for fraudulently buying five semi-automatic pistols intended for export to Guatemala without required authorization.
- DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because the conviction allegedly constituted an aggravated felony for "illicit trafficking in firearms" (8 U.S.C. § 1101(a)(43)(C)), rendering him ineligible for cancellation of removal.
- The Immigration Judge granted cancellation of removal, finding the § 554(a) conviction did not constitute illicit firearms trafficking; the BIA reversed, concluding § 554(a) was divisible and the conviction could be narrowed to firearm trafficking.
- The Fifth Circuit originally affirmed the BIA; on rehearing the court withdrew its prior opinion and issued a substituted opinion applying the Supreme Court’s Descamps framework to analyze divisibility and the modified categorical approach.
- The majority held § 554(a) is divisible because it incorporates other statutes/regulations (e.g., the Arms Export Control Act and ITAR) and the indictment specifically identified firearms and licensing violations, allowing use of Shepard-approved documents to determine the statutory alternative charged.
- A dissent argued Descamps forecloses treating § 554(a) as divisible because the statute criminalizes an indeterminate category ("merchandise, article, or object contrary to any law or regulation"), and the majority impermissibly looks beyond the statute to the indictment and other rules to manufacture divisibility.
Issues
| Issue | Plaintiff's Argument (Franco-Casasola) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether § 554(a) is divisible for use of the modified categorical approach | § 554(a) is overbroad/indivisible under Descamps; conviction under that statute does not necessarily correspond to illicit firearms trafficking | § 554(a) is divisible because it incorporates a finite list of alternative statutes/regulations; the indictment identifies the specific statutory alternative (Arms Export Control Act/ITAR) | Court held § 554(a) is divisible because the statute’s alternatives are supplied by other statutes/regulations identified in the charging documents |
| Whether Shepard-approved documents may be used to determine if the § 554(a) conviction was for illicit firearms trafficking | Court may not look to underlying facts/uncharged statutes to conclude conviction was for firearms trafficking | Charging document, plea colloquy, and statutes/regulations cited in the indictment narrow the alternative and show conviction was for firearms trafficking | Court applied the modified categorical approach using the indictment and plea to identify the statutory alternative (firearms via AECA/ITAR) and held the conviction was for illicit firearms trafficking |
| Whether a guilty plea precludes reliance on the indictment to identify statutory elements | Plea acceptance focuses only on elements of § 554(a), not on other statutes mentioned; cannot rewrite plea to add elements not in the conviction | Guilty plea and the plea colloquy necessarily established the elements of the charged statutory alternative identified in the indictment | Court treated the indictment and the plea as Shepard documents showing the plea admitted elements corresponding to the AECA/ITAR-based firearm offense |
| Whether Descamps controls and requires overruling BIA’s prior broader Lanferman test | Descamps precludes BIA’s Lanferman approach; § 554(a) is indivisible under Descamps | Descamps governs; but § 554(a) remains divisible under Descamps because the indictment supplies the alternative statute/regulation | Court applied Descamps, concluded § 554(a) is divisible under the Descamps framework, and found BIA’s ultimate application correct |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (Sup. Ct.) (formal categorical approach; narrow exception for modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (Sup. Ct.) (documents approved for narrowing divisible statutes)
- Descamps v. United States, 133 S. Ct. 2276 (Sup. Ct.) (clarified divisibility and limits of modified categorical approach)
- Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir.) (discusses categorical and modified categorical approaches in immigration context)
- Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir.) (standards for reviewing aggravated-felony determinations in immigration cases)