992 F.3d 1248
11th Cir.2021Background
- Rubens Aspilaire, a Haitian native and U.S. lawful permanent resident, was convicted in Florida in 2016 of being a felon in possession of a firearm (after an arrest that reported a "Springfield Armory . . . 9mm" semi-automatic handgun) and sentenced to 12 years.
- DHS reinstated removal proceedings, treating the Florida felon-in-possession conviction as an "aggravated felony" under the INA by reference to the federal felon-in-possession offense.
- Aspilaire argued the Florida statute is not categorically an aggravated felony because Florida’s definition of "firearm" differs from the federal definition in two ways: (1) Florida’s antique-firearm exception excludes firearms only when not used in the commission of a crime (so an antique used in a crime is still a "firearm"), and (2) Florida’s antique definition does not separately enumerate black‑powder muzzleloaders as federal law does.
- The Board applied the modified categorical approach to reject an "electric weapon" argument and required Aspilaire to show exemplar prosecutions for the antique‑firearm issue; Aspilaire cited several Florida cases, but some involved other offenses or were later disapproved by the Florida Supreme Court.
- On review, the Eleventh Circuit held Aspilaire failed to meet his burden: he did not identify exemplar prosecutions showing Florida actually convicts felons for possessing firearms that federal law would deem antique, and Florida’s statute is not broader than the federal statute on its face.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Florida felon‑in‑possession conviction is categorically an INA aggravated felony given Florida's antique‑firearm exception (exclusion applies only when antique not used in crime). | Aspilaire: Florida treats antiques used in crimes as "firearms," so Florida can convict felons for items federal law would exempt. | Government: Petitioner must show a realistic probability via exemplar prosecutions or statutory language; Florida precedent (Weeks) and ordinary meaning of "use" show antiques are not treated more broadly in practice. | Denied — Aspilaire failed to identify exemplar prosecutions and statutory language does not create a realistic probability of broader application. |
| Whether Florida’s antique‑firearm definition is broader because it does not explicitly include black‑powder muzzleloaders as federal law does. | Aspilaire: Florida’s ignition‑system definition omits federal black‑powder muzzleloader category, risking convictions for firearms federal law would exempt. | Government: Florida’s ignition‑system approach typically captures black‑powder muzzleloaders in practice; Florida Supreme Court decisions (Weeks) show such weapons can qualify as antiques under Florida law. | Denied — Weeks and the practical overlap between ignition‑system and muzzleloader classifications undercut the overbreadth claim. |
| Whether petitioner may defeat categorical comparison relying on statutory language alone or must point to exemplar prosecutions (Moncrieffe issue). | Aspilaire: challenged the necessity of exemplar prosecutions to show overbreadth. | Government: Relied on Moncrieffe dicta requiring exemplar prosecutions; otherwise petitioner must show "realistic probability" via cases or clear statutory language. | Court treated Moncrieffe dicta as persuasive; regardless, petitioner failed on both exemplar and statutory‑language grounds and was denied relief. |
Key Cases Cited
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (dicta that a noncitizen must show the State actually prosecutes cases involving antique firearms to defeat the categorical approach)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (requires showing a "realistic probability" a state would apply its statute to conduct outside the federal analogue)
- Ramos v. U.S. Att'y Gen., 709 F.3d 1066 (11th Cir. 2013) (statutory language must itself create a realistic probability of broader state application)
- Weeks v. State, 202 So. 3d 1 (Fla. 2016) (Florida Supreme Court held a black‑powder muzzleloader qualified as an "antique firearm" under Florida law and repudiated earlier contrary precedent)
- Williams v. State, 492 So. 2d 1051 (Fla. 1986) (earlier Florida Supreme Court decision affirming felon‑in‑possession conviction despite antique‑firearm claim; later receded from)
- Margiotti v. State, 844 So. 2d 829 (Fla. Dist. Ct. App. 2003) (holding an antique, inoperable firearm counted for mandatory‑minimum burglary enhancement — not a felon‑in‑possession case)
- Bailey v. United States, 516 U.S. 137 (1995) ("use" of a firearm implies active employment beyond mere possession)
- Donawa v. U.S. Att'y Gen., 735 F.3d 1275 (11th Cir. 2013) (explains categorical vs. modified categorical approaches)
- Cintron v. U.S. Att'y Gen., 882 F.3d 1380 (11th Cir. 2018) (review of whether a crime is an aggravated felony is de novo)