RAMON DURAN GUILLEN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent.
No. 17-12247
United States Court of Appeals, Eleventh Circuit
December 13, 2018
[PUBLISH] Agency No. A077-020-040
Petition for Review of a Decision of the Board of Immigration Appeals
(December 13, 2018)
Before MARCUS, NEWSOM, and EBEL,* Circuit Judges.
An alien convicted of a state offense “relating to a controlled substance” as defined by federal law is eligible to be removed from the United States.
I.
The relevant facts are undisputed. Ramon Duran Guillen was born on July 2, 1984, in Mexico. He testified before an Immigration Judge (IJ) that he entered the United States illegally in 1991, later becoming a lawful permanent resident in 1999. His parents and four оf his five siblings are also permanent residents, while his youngest sister was born in the United States and is an American. Guillen has lived with his parents and teenage sister in Sarasota, Florida, since 2014. He is unmarried and has no children.
Guillen‘s criminal history consists of five incidents, all of which involved cocaine. In
Most recently, in November 2015 Guillen was arrested for cocaine possession, leaving the scene of an accident, driving under the influence, driving with a suspended license, and possession of narcotics equipment. An officer testified that his radar recorded Guillen, while high on cocaine and marijuana, traveling at 102 miles per hour before his arrest. He once more pleaded nolo contendere, and the next year, DHS officers encountered Guillen at a probation office in Sarasota, Florida, during “routine screening of foreign-born offenders under supervision of the Florida Department of Corrections.” At this time he was identified as an alien eligible to be removed from the United States.
The government filed a Notice to Appear charging Guillen as removable because he was convicted of a state offense “relating to a controlled substance” as defined by federal law.
The IJ found that Guillen met the statutory requirements. He was granted lawful permanent resident status in 2000, and he lawfully resided in the United States since that time. And despite his criminal record, Guillen had never been convicted of an aggravated felony under the immigration law definition. See
The IJ recognized Guillen‘s family ties in the United States, the support he prоvides to his parents and youngest sister, and his continued residence in the United States since he was seven years old. But these positive equities were outweighed by his extensive series of criminal offenses,
Guillen appealed the denial of his application for cancellation of rеmoval to the Board of Immigration Appeals. Before the Board, Guillen continued to press his claim for discretionary relief and added a legal argument. Guillen claimed that he was ineligible for removal because none of his convictions qualified under
The Board rejected Guillen‘s argument. Relying on Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), the Board held that merely pointing to differences in the substances covered by Florida law and the federal controlled substance schedules was insufficient. Rather, one must show that there is “a realistic probability that the state will successfully prosecute conduct outside the removable offense‘s generic definition” to establish that the state offense does not render an alien removable. The Board also rejected Guillen‘s argument that
controlled substance.2 The well-established rule is that federal drug laws likewise cover constructive possession. See, e.g., United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996). Still, the Board assumed for the sake of argument that Guillen was correct that a Florida possession conviction is not categorically related to a controlled substance.
More significantly, in as much as this is the ground on which the government now defends the BIA‘s decision, the Board held thаt the Florida possession statute was divisible. The Board relied on the structure of the statute, which “enumerates alternative bases for conviction separated by the disjunctive ‘or,‘” and cited a Florida District Court of Appeal holding that the specific drug possessed is an element of the offense under
equipment, because Guillen‘s cocaine possession convictions were sufficient to establish his eligibility for removal.
The Board then reviewed the Immigration Judge‘s discretionary denial of Guillen‘s application. Examining the same set of facts, the Board agreed that his criminal history and laсk of demonstrated rehabilitation outweighed the equities favoring cancellation of removal. The Board dismissed the appeal and Guillen timely petitioned this Court for review.
II.
We are obliged, as a threshold matter, to ensure that we have jurisdiction. Courts generally lack jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) [of Title 8],” which includes controlled substance offenses.
The government “has the burden of establishing by clear and convincing evidence” that an alien is eligible for removal.
III.
Guillen argues that he is not removable under
A.
In relevant part,
Like the federal Controlled Substances Act,
A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. A person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
To determine whether a state offense makes an individual eligible for removal, we “apply a categorical or modified categorical approach, depending on
the statutory scheme.” Donawa v. U.S. Att‘y Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). Under the categorical approach, we consider only “the fact of conviction and the statutory definition of the offense.” Id. “If the statute can be violated by an act that does not fit within the generic offense,” then the statute cannot be a predicate for removal regardless of the facts of the particulаr case. Spaho v. U.S. Att‘y Gen., 837 F.3d 1172, 1177 (11th Cir. 2016) (citing Descamps v. United States, 570 U.S. 254, 257 (2013)). The government does not assert that a conviction under
The modified categorical approach applies when a statute is “divisible,” that is, “when it lists a number of alternative elements that effectively create several different crimes.” Donawa, 735 F.3d at 1281. For divisible statutes, a court can look to a small set of record documents to determine the specific elements of the offense that the defendant was convicted of. See Shepard v. United States, 544 U.S. 13, 26 (2005); Spaho, 837 F.3d at 1177. Thеse so-called “Shepard documents” can consist of a plea agreement, the transcript of a plea colloquy, the charging document, jury instructions, or a “comparable judicial record of this information.” Shepard, 544 U.S. at 26; Descamps, 570 U.S. at 261-62.
So, to decide whether Guillen‘s cocaine convictions render him removable we must decide whether
In Mathis v. United States -- the Supreme Court‘s most recent exploration of the divisibility of a state statute -- the issue was whether convictions for burglary under Iowa law qualified as “generic” burglary for thе purposes of an Armed Career Criminal Act sentencing enhancement. See id. at 2248;
The Supreme Court explained that the critical “elements or means” question is “easy” in two instanсes: when “the statute on its face” provides an answer, and when “a state court decision definitively answers the question” as it did in Mathis. Id. at 2256. A statute might provide a clear answer by setting different punishments depending on the chosen alternative, or by making clear that a list contains only “illustrative examples.” Id. The Court added that if the statute and authoritative sources of state law are unclear, a court is permitted to “peek at the
record documents . . . for the sole and limited purpose of determining whether the listed items are elements of the offense.” Id. at 2256-57 (brackets omitted) (quoting Rendon v. Holder, 782 F.3d 466, 473-474 (9th Cir. 2015) (dissenting from denial of reh‘g en banc)).
B.
Following the framework set forth in Mathis, we look to the face of the statute, state court decisions, and other authoritative sources of state law to determine whether the identity of the controlled substance is an element of a possession offense under the Florida statute.
We begin with the text. Here, the statute on its face fails to provide a clear answer on divisibility. In terms of structure,
statute creating an offense with the use of a “deadly weapon” as an element that provided that “a ‘knife, gun, bat, or similar weapon’ would all qualify.” Id. Because that list merely “specifies diverse means of satisfying a single element of a single crime,” a jury would not be required to agree on the identity of thе weapon. Id. So long as all jurors agreed it was a “deadly weapon,” they could find that element to be satisfied. This kind of statute is indivisible.
The statute in this case is unlike either of these hypothetical laws with a structure that leads to a single inescapable conclusion.
Florida‘s state courts provide substantially more guidance. State courts “are the ultimate expositors of state law,” so we are bound by their opinions on state law issues. Jones v. GDCP Warden, 753 F.3d 1171, 1191 (11th Cir. 2014). In Jenkins v. Wainwright, 322 So. 2d 477 (Fla. 1975), the Florida Supreme Court held that a defendant could be convicted of both possession of marijuana and possession of a hallucinogenic drug, even though the offenses were “merely
different facets of the same transaction.” Id. at 478. The court rejected the defendant‘s double jeopardy challenge, holding that the defendant was guilty of “possession of two separate drug substances, each of which constitutes in and of itself a separate violation of law.” Id. at 479.
Although the Florida Supreme Court did not use the word “divisibility” or refer to the “modified categorical approach,” its holding necessarily implies that the statute is divisible: a defendant cannot be convicted and sentenced for two offenses with identical elements arising from the same facts. See, e.g., United States v. Dixon, 509 U.S. 688, 696 (1993) (“The same-elements test, sometimes referred to as the ‘Blockburger’ test, inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.“). In Jenkins, the only possible difference between the two offenses was the identity of the substance. Possession of marijuana and possession of a hallucinogenic drug consist of otherwise identical elements. In short, because the Florida Supreme Court has told us that the elements of possession of marijuana and possession of a hallucinogen are different, it has implicitly told us that the identity of the substance possessed is an element of possession.
Florida‘s intermediate appellate courts have repeatedly come to the same conclusion. Thus, for exаmple, in Parker v. State, 237 So. 2d 253, 254 (Fla. Dist. Ct. App. 1970), the First District Court of Appeal upheld a three-count conviction for possession of marijuana, possession of a barbiturate,
And providing perhaps even more probative evidence, in Retherford v. State, 386 So. 2d 881, 882 (Fla. Dist. Ct. App. 1980), the First District Court of Appeal rejected separate sentencing for possession of marijuana and possеssion of hashish. The reason for this ruling was that marijuana and hashish were defined as the same
controlled substance under Florida law. Possession of the same substance in different forms is “the same crime,” whereas possession of two different substances is not. Id. at 882. This is a clear enough indication that Florida‘s courts consider the identity of the particular substance to be an element of possession. Otherwise, there would be no reason to treat possession of marijuana and hashish any different from possession of marijuana and a hallucinogen.
In still another line of cases, Florida‘s District Courts of Appeal have overturned convictions because the substance named in the charging document differed from the one shown to have been involved in the offense. Thus, for example, in Jiminez v. State, 231 So. 2d 26 (Fla. Dist. Ct. App. 1970), the Third District held that charging a defendant with a heroin offense and producing evidence relating to morphine was a “fatal variance” requiring reversal. Id. at 28. The court explained that “the accused cannot be indicted for one offense and convicted and sentenced for another, even though the offenses are closely related and of the same general nature or character and punishable by the same grade of punishmеnt.” Id. at 27 (emphasis added) (internal quotation marks omitted) (quoting Penny v. State, 191 So. 190, 193 (Fla. 1939)).
The standard jury instructions issued by the Florida Supreme Court reflect the same understanding of the statute. While these instructions are not binding authority, they “are presumed to be correct” interpretations of Florida law.
BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287, 292 (Fla. 2003). In pertinent part, the standard instructions for a possession of controlled substances charge state:
Certain drugs and chemical substances are by law known as “controlled substances.” (Specific substance) is a controlled substance.
To prove the crime of Possession of a Controlled Substance, the State must prove the following two elements beyond a reasonable doubt:
- (Defendant) possessed a substance.
- The substance was (specific substance).
conclusion. Mathis, 136 S. Ct. at 2256. And again, Mathis tells us that when state law provides a definitive answer, the divisibility inquiry is a straightforward one.
C.
Our conclusion is consonant with those reached by nearly all of our sister circuits that have addressed this question with respect to similar state statutes. Thus, by example, the First Circuit has held that a Rhode Island conviction for manufacturing, delivering, or possessing with intent to distribute a controlled substance rendered an alien removable under
And it noted that the charging documents for the petitioner‘s convictions identified a specific controlled substance, as they do here. Id. at 68.
The First Circuit‘s conclusion is no outlier. In United States v. Henderson, 841 F.3d 623 (3d Cir. 2016), cert. denied, 138 S. Ct. 210 (2017), the Third Circuit held that a Pennsylvania controlled substance statute was divisible. Id. at 626. The court adhered to the Superior Court of Pennsylvania‘s holding that the particular substance was an element of the offense, id. at 629, and found that the statutory structure also compelled finding the statute divisible, id. at 630. The Eighth Circuit reached the same result regarding Missouri‘s possession with intent to deliver statute, relying on two Missouri Court of Appeals decisions rejecting challenges to multiple convictions and separate sentences for offenses involving multiple drugs. See Martinez v. Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018). The Fifth and Ninth Circuits have done likewise with respect to two California possession of a controlled substance laws. United States v. Gomez-Alvarez, 781 F.3d 787, 792 (5th Cir. 2015); Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014). While these cases involved different statutes than the
elsewhere. These decisions from our sister circuits therefore properly inform our analysis of the similarly structured
The sole exception we can find is Harbin v. Sessions, 860 F.3d 58, 61 (2d Cir. 2017), where the Second Circuit held that New York‘s possession with intent to deliver statute was indivisible. Beyond the obvious distinction that this case involved a different statute from a different state, we note that the state courts’ guidance looked much different from that available to us here. The Second Circuit drew from New York precedent on a related statute that applied to the possession of narcotics. See
Moreover, New York courts have also reached the opposite conclusion with respect to offenses involving multiple drugs, with one court holding that a defendant cannot be “convicted of two possession counts based on his possession of a single bag containing both cocaine and herоin.” People v. Miller, 789 N.Y.S.2d 423 (N.Y. App. Div. 2005). New York thus appears to treat all narcotics the same, as Florida law does with marijuana and hashish, which gave rise to the
Second Circuit‘s conclusion that the identity of the substance is not an element of the offense under the statute at issue. All of this is to say that the state court materials available to the Second Circuit were vastly different from the evidence of Florida law produced here. On the basis of the state law precedent relevant to this case, we conclude that
D.
Because
The Board correctly found that the substance Guillen was convicted of possessing was cocaine. Each relevant criminal information specifically identified the substance involvеd in Guillen‘s offenses, and they report that Guillen was charged with “unlawfully and feloniously possess[ing] a controlled substance, to wit: Cocaine.” Cocaine is listed under Schedule II in
Guillen‘s convictions for cocaine possession are thus “relating to a controlled substance (as defined in section 802 of title 21),” and the Board correctly determined that he was eligible for removal on that basis.
We are therefore obliged to deny Guillen‘s petition for review.
PETITION DENIED.