38 F.4th 1355
11th Cir.2022Background
- Everton Daye, a Jamaican national and lawful permanent resident, was convicted in Virginia (2013) of two counts of transporting controlled substances into Virginia with intent to distribute (Va. Code § 18.2-248.01) and one count of conspiracy to transport marijuana (Va. Code § 18.2-256); combined sentence totaled 19 years (6 years to serve).
- DHS charged Daye with removability under INA § 237(a)(2)(A)(i) (felony CIMT within five years after admission) and § 237(a)(2)(A)(ii) (two or more CIMTs after admission not arising from a single scheme).
- Daye argued his convictions were not crimes involving moral turpitude (CIMTs) because Virginia’s schedules include substances not on the federal lists (making the offense regulatory rather than morally reprehensible) and because evolving marijuana laws reduce moral culpability; he also challenged the term "crime involving moral turpitude" as unconstitutionally vague.
- The IJ concluded § 18.2-248.01 was not divisible and, applying the categorical approach, found transportation-with-intent-to-distribute categorically a CIMT; the BIA affirmed the CIMT determination and removability (the BIA did not disturb the IJ’s divisibility finding).
- On review, the Eleventh Circuit assumed the categorical approach (the parties did not dispute divisibility at merits) and evaluated whether the least culpable conduct under the Virginia statute met the two-part CIMT test (reprehensible conduct + culpable mental state).
- The court held that (1) intent to distribute satisfies the mens rea prong; (2) transporting illicit drugs with intent to distribute is inherently morally reprehensible given societal harms of trafficking; (3) the existence of state-only scheduled substances or changing marijuana laws did not negate moral turpitude; and (4) the Supreme Court’s Jordan v. De George decision forecloses Daye’s vagueness challenge. Petition denied.
Issues
| Issue | Plaintiff's Argument (Daye) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Va. Code § 18.2-248.01 (transporting with intent to distribute) categorically is a CIMT | Least culpable conduct under the statute is not morally reprehensible; statute covers non-federal substances and benign conduct | Participation in illicit drug trafficking (including transport with intent to distribute) involves culpable mens rea and moral reprehensibility | Yes — the statute categorically constitutes a CIMT |
| Whether transporting substances listed only in Virginia (not federal schedules) is a mere regulatory offense, not a CIMT | Transport of non-federally listed substances is harmless/regulatory and lacks moral blameworthiness | State schedules reflect substances harmful enough to be criminalized; federal nonlisting does not make them harmless | No — Virginia’s scheduling and trafficking with intent remain morally reprehensible and qualify as CIMTs |
| Whether the phrase "crime involving moral turpitude" is unconstitutionally vague post-Johnson/Dimaya | Johnson/Dimaya render categorical standards vague; statute phrase lacks adequate clarity | Supreme Court precedent (Jordan v. De George) upholds the phrase; De George controls | No — phrase is not unconstitutionally vague; De George is binding |
Key Cases Cited
- Jordan v. De George, 341 U.S. 223 (1951) (Supreme Court held "crime involving moral turpitude" is not unconstitutionally vague)
- Zarate v. U.S. Att'y Gen., 26 F.4th 1196 (11th Cir. 2022) (describing elements and two-prong test for CIMTs and Chevron deference to BIA)
- Cano v. U.S. Att'y Gen., 709 F.3d 1052 (11th Cir. 2013) (definition of moral turpitude as baseness, vileness, or depravity in duties to others)
- Gelin v. U.S. Att'y Gen., 837 F.3d 1236 (11th Cir. 2016) (permitting reliance on convicting-jurisdiction decisions when applying categorical approach)
- Guevara-Solorzano v. Sessions, 891 F.3d 125 (4th Cir. 2018) (holding possession with intent to deliver marijuana qualifies as a CIMT)
- Johnson v. United States, 576 U.S. 591 (2015) (addressing vagueness of the ACCA residual clause; relied upon in vagueness arguments)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (struck down an identically vague residual clause; discussed in the opinion but distinguished from De George)