Dwight Dion Donawa v. U.S. Attorney General
735 F.3d 1275
11th Cir.2013Background
- Petitioner Dwight Donawa, a lawful permanent resident, was convicted in Florida (2009) of possession of cannabis with intent to sell or deliver (Fla. Stat. § 893.13(1)(a)(2)) and possession of drug paraphernalia.
- DHS initiated removal proceedings (2011), charging removability as an aggravated felon (drug trafficking) and for a controlled-substance offense.
- The IJ found Donawa removable and ineligible for cancellation of removal because the Florida cannabis statute was an aggravated felony; the BIA affirmed without adopting the IJ’s reasoning.
- Donawa conceded removability but challenged the BIA’s conclusion that his Florida conviction was categorically a drug-trafficking aggravated felony, which would bar discretionary cancellation of removal.
- Florida amended its drug statutes (Fla. Stat. § 893.101) to make knowledge of the illicit nature of the substance an affirmative defense rather than an element; the federal analogue (21 U.S.C. § 841(a)(1)) requires proof of knowledge.
- The Eleventh Circuit reviewed de novo whether the Florida statute, as amended, is categorically a drug trafficking aggravated felony and whether the modified categorical approach applies.
Issues
| Issue | Donawa's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Fla. Stat. § 893.13(1)(a)(2) is a "drug trafficking crime" under 18 U.S.C. § 924(c)(2) (i.e., matches 21 U.S.C. § 841(a)(1)) | The Florida statute lacks the knowledge element required by the federal statute, so it cannot categorically be a drug-trafficking aggravated felony | The statute is divisible because the affirmative defense (Fla. Stat. § 893.101) effectively restores a knowledge element; thus the modified categorical approach should apply | Held: Not a drug-trafficking aggravated felony; categorical approach controls and statute is not divisible for modified categorical use |
| Whether the modified categorical approach applies (i.e., whether the statute is divisible) | N/A (argues categorical failure) | Affirmative defense creates a separable subset of offenses with mens rea, so modified categorical approach is allowed | Held: Modified categorical approach not available because the affirmative defense is not an element; Florida places burden on defendant, so statute is not divisible |
| Whether a conviction under the Florida statute could be treated as an "illicit trafficking" aggravated felony (alternative ground) | N/A (primary focus was on drug-trafficking classification) | BIA suggested broader aggravated-felony theories could apply | Held: Court declined to decide; remanded for BIA to address illicit-trafficking question in first instance |
| Procedural: Whether Donawa waived the issue or whether appellate review is permissible | Donawa preserved the legal challenge to aggravated-felony classification | Government contended waiver and limited review because Donawa conceded removability | Held: No waiver; court has jurisdiction to decide the legal question of aggravated-felony classification |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (limits when modified categorical approach may be used)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (categorical approach and presumption of least culpable conduct)
- Tovar v. U.S. Attorney Gen., 646 F.3d 1300 (Eleventh Circuit jurisdiction and review principles in removal context)
- Fequiere v. Ashcroft, 279 F.3d 1325 (prior Eleventh Circuit treatment of earlier version of Fla. Stat. § 893.13)
- State v. Adkins, 96 So. 3d 412 (Fla. 2012) (Florida Supreme Court upholding placement of burden on defendant for lack-of-knowledge affirmative defense)