861 F.3d 1314
11th Cir.2017Background
- Petitioner Lannie Gordon, a Guyanese citizen and U.S. lawful permanent resident since 1985, pleaded guilty to two counts under Fla. Stat. § 893.13(1)(a) for sale or delivery of cannabis (May 2014).
- Convictions resulted in two years of state probation; DHS served a Notice to Appear alleging removability as an aggravated felon under INA § 237(a)(2)(A)(iii) for illicit trafficking.
- The IJ found Gordon removable, concluding the Florida convictions constituted illicit trafficking; the BIA affirmed that decision.
- The core legal question was whether Fla. Stat. § 893.13(1)(a) is divisible and, if so, whether Gordon’s conviction necessarily involved the commercial element (sale) that qualifies as "illicit trafficking."
- Florida law distinguishes “sale” (requires consideration) from “delivery” (does not require consideration); the charging documents alleged "sale or delivery, for monetary consideration."
- The Eleventh Circuit granted Gordon’s petition, holding the record did not establish that the conviction was for the commercial alternative (sale) and that the BIA erred by treating the “for monetary consideration” language as dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fla. Stat. § 893.13(1)(a) is divisible and thus subject to the modified categorical approach | Gordon: statute divisible but record documents do not show which alternative (sale vs. delivery) formed basis of conviction | Govt: statute divisible and conviction narrowed to a commercial act (sale) supporting aggravated felony | Court: statute is divisible; modified categorical approach applies but record does not show conviction was for "sale" rather than "delivery" |
| Whether a conviction under § 893.13(1)(a) alleging "sale or delivery, for monetary consideration" qualifies as an illicit-trafficking aggravated felony | Gordon: allegation of "for monetary consideration" cannot resolve which statutory alternative was convicted; actual conduct irrelevant | Govt: phrasing demonstrates commercial nature and supports aggravated felony classification | Court: actual conduct or extraneous wording cannot substitute for identifying which statutory element formed the conviction; must presume least culpable alternative (delivery) |
| Whether courts may rely on charging language saying "for monetary consideration" to identify the statutory alternative used | Gordon: such language is insufficient to identify which element formed the conviction | Govt: that language shows sale occurred | Held: Insufficient — courts may consult limited documents, but here they do not prove the conviction rested on the commercial alternative |
| Removability under alternative grounds (crimes involving moral turpitude) | Gordon: BIA did not rule on this ground on appeal; issue not before court | Govt: IJ had concluded alternate removability ground but BIA declined to address it | Held: Court limited review to BIA decision and did not address moral-turpitude ground because BIA did not decide it |
Key Cases Cited
- Jeune v. U.S. Att’y Gen., 810 F.3d 792 (11th Cir. 2016) (scope of appellate review of BIA decisions)
- Spaho v. U.S. Att’y Gen., 837 F.3d 1172 (11th Cir. 2016) (analysis of Fla. § 893.13(1)(a) divisibility and illicit-trafficking element)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (categorical approach explained)
- Descamps v. United States, 570 U.S. 254 (2013) (limits of the modified categorical approach)
- Mellouli v. Lynch, 575 U.S. 798 (2015) (actual conduct is irrelevant; presume least culpable conduct)
- Mathis v. United States, 579 U.S. 500 (2016) (distinction between alternative elements and means)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (trafficking requires commercial dealing)
- Accardo v. U.S. Att’y Gen., 634 F.3d 1333 (11th Cir. 2011) (standard of review whether conviction is an aggravated felony)
- United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) (focus on statutory text when determining divisibility)