Jose Flores-Larrazola v. Loretta Lynch
2016 U.S. App. LEXIS 19218
| 5th Cir. | 2016Background
- Jose Flores-Larrazola, a Mexican national and lawful permanent resident, pleaded guilty (2000) to violating Ark. Code Ann. § 5-64-401(a) for possession with intent to deliver over ten pounds of marijuana.
- INS initiated removal proceedings ~14 years later; Flores-Larrazola admitted removability under 8 U.S.C. § 1227(a)(2)(B)(i) but contested that his conviction made him an "aggravated felon" under 8 U.S.C. § 1101(a)(43)(B).
- The IJ and BIA held he was an aggravated felon because his conviction constituted "illicit trafficking in a controlled substance," rendering him ineligible for discretionary relief (cancellation of removal).
- Arkansas § 5-64-401(a) is divisible into alternate mens rea (purposely, knowingly, recklessly) and actus reus (manufacture, deliver, possess with intent) prongs; the court applied the modified categorical approach using Shepard documents (charging document and judgment).
- The Shepard documents established Flores-Larrazola possessed with intent to deliver at least ten pounds of marijuana; Arkansas law defines "deliver" to include transfer "in exchange for money or anything of value," so the conviction involved intent to deliver for remuneration.
- The Fifth Circuit adopted the BIA definition that "illicit trafficking" covers state felony convictions involving unlawful trading or dealing in controlled substances and held Flores-Larrazola’s conviction met that standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flores-Larrazola’s state conviction is an "aggravated felony" as "illicit trafficking in a controlled substance" under 8 U.S.C. § 1101(a)(43)(B) | Flores-Larrazola: Arkansas statute criminalizes reckless conduct; federal CSA requires knowing/intentional mens rea for a "drug trafficking crime," so his conviction need not be a federal drug felony and thus does not necessarily constitute "illicit trafficking." | Government/BIA: "Illicit trafficking" is broader than the § 924(c) "drug trafficking crime" definition; a divisible state statute conviction establishing intent to deliver a substantial quantity for remuneration qualifies as illicit trafficking. | Held: Conviction (reckless possession with intent to deliver ≥10 lbs for remuneration) constitutes "illicit trafficking," making him an aggravated felon and ineligible for relief. |
| Proper interpretive approach (categorical vs. modified categorical) | Flores-Larrazola: Relied on Moncrieffe to argue categorical approach limits inquiry to statute. | Government/BIA: Where statute is divisible, courts may apply the modified categorical approach to determine which alternative crime the defendant was convicted of. | Held: Ark. § 5-64-401(a) is divisible; court used modified categorical approach and Shepard documents to identify the specific offense. |
| Whether "illicit trafficking" requires the same mens rea as federal "drug trafficking crime" (18 U.S.C. § 924(c)(2)) | Flores-Larrazola: "Illicit trafficking" should be coextensive with § 924(c)(2) (requires knowing/intentional mens rea). | Government/BIA: "Illicit trafficking" is broader and can encompass state offenses with different mens rea (e.g., recklessness) that involve trading/dealing. | Held: "Illicit trafficking" is broader; reckless possession with intent to deliver can qualify. |
| Whether ten pounds is more than a "small amount" of marijuana for purposes of illicit trafficking | Flores-Larrazola: (implicitly) contesting broad construction; argued statutory differences matter. | Government/BIA: Ten pounds is not a "small amount"—common sense and precedent show such quantity is trafficking. | Held: Ten pounds is not a "small amount;" conviction involved trafficking (selling/intent to sell) and thus qualifies. |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (clarifies "small amount" inquiry and categorical approach in immigration drug-conviction contexts)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (interprets "aggravated felony" and that "illicit trafficking" phrase is not limited to the § 924(c) definition)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (modified categorical approach still applies to divisible state statutes)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explains divisible statutes and limits of the categorical approach)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (describes permissible Shepard documents for guilty pleas)
- Garcia v. Holder, 756 F.3d 839 (5th Cir. 2014) (standard of review for whether a prior conviction is an aggravated felony)
- Mireles‑Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003) (holding discretionary relief from removal is not a protected liberty interest for due process purposes)