William Goulbourne v. U.S. Attorney General ( 2022 )


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  • USCA11 Case: 21-14505     Date Filed: 10/18/2022       Page: 1 of 11
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-14505
    Non-Argument Calendar
    ____________________
    WILLIAM GOULBOURNE,
    Petitioner,
    versus
    U.S. ATTORNEY GENERAL,
    Respondent.
    ____________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    Agency No. A029-839-853
    ____________________
    USCA11 Case: 21-14505             Date Filed: 10/18/2022         Page: 2 of 11
    2                          Opinion of the Court                        21-14505
    Before WILSON, NEWSOM and ANDERSON, Circuit Judges.
    PER CURIAM:
    William Goulbourne, a lawful permanent resident and citi-
    zen of Jamaica, petitions for review of the immigration judge’s
    (“IJ”) and Board of Immigration Appeals’ (“BIA”) denials of his ap-
    plication for cancellation of removal.
    I
    Goulbourne was convicted of possession with intent to dis-
    tribute 3, 4-methylenedioxymethamphetamine (MDMA) under
    the Georgia Controlled Substance Act, 
    Ga. Code Ann. § 16-13
    -
    30(b); 
    id.
     § 16-13-25(3)(Z) (listing MDMA under Schedule I con-
    trolled substances). “The [INA] allows the government to deport
    noncitizens who are convicted of certain crimes while in the United
    States, including drug offenses.” Donawa v. U.S. Att’y Gen., 
    735 F.3d 1275
    , 1278–79 (11th Cir. 2013) (citing 
    8 U.S.C. § 1227
    (a)). “Or-
    dinarily, a deportable noncitizen may ask the Attorney General for
    discretionary relief from removal. But if that noncitizen has been
    convicted of an aggravated felony, he is not only deportable; he is
    also ineligible for any discretionary relief.” 
    Id. at 1279
     (citations
    omitted);     Immigration        and   Nationality      Act     (INA)
    § 237(a)(2)(A)(iii); 
    8 U.S.C. § 1227
    (a)(2)(A)(iii); 8 U.S.C.
    § 1229b(a)(3). 1 The term “aggravated felony” includes a conviction
    1 The INA also defines the term “aggravated felony” to include “illicit traffick-
    ing in a controlled substance . . . including a drug trafficking crime (as defined
    USCA11 Case: 21-14505             Date Filed: 10/18/2022         Page: 3 of 11
    21-14505                   Opinion of the Court                                 3
    for a “drug trafficking” crime, which is defined as any felony pun-
    ishable under the federal Controlled Substances Act (CSA). INA
    § 101(a)(43)(B), 
    8 U.S.C. § 1101
    (a)(43)(B); 
    18 U.S.C. § 924
    (c)(2). A
    state offense qualifies as a federal aggravated felony only if it pro-
    scribes conduct punishable as a felony under federal law. Lopez v.
    Gonzalez, 
    549 U.S. 47
    , 55–60 (2006).
    Courts analyzing whether a conviction under a state statute
    qualifies as an aggravated felony apply a categorical or modified
    categorial approach, depending on the statutory scheme. See
    Donawa, 735 F.3d at 1280. Using the categorical approach, a court
    may examine only the statutory elements of the state and federal
    crimes to determine whether the state crime “categorically fits
    within the generic federal definition of a corresponding aggravated
    felony.” Moncrieffe v. Holder, 
    569 U.S. 184
    , 190 (2013) (internal
    quotations omitted). But courts should also consider whether the
    state statute is “divisible,” or whether it “lists a number of alterna-
    tive elements that effectively create several different crimes.” Guil-
    len v. U.S. Att’y Gen., 
    910 F.3d 1174
    , 1180 (11th Cir. 2018) (quoting
    Donawa, 735 F.3d at 1281). If the statute is divisible, then the court
    may apply the modified categorical approach. Under this analysis,
    in section 924(c) of Title 18).” 
    8 U.S.C. § 1101
    (a)(43)(B). If Goulbourne’s drug
    conviction did not constitute a “drug trafficking crime,” we could consider
    whether the conviction fell into the broader category of “illicit trafficking in a
    controlled substance.” See Donawa, 735 F.3d at 1280. Goulbourne argued be-
    low, and reiterates now, that it did not. Because we conclude that
    Goulbourne’s conviction is a drug-trafficking crime, we need not consider
    whether it falls into the wider category of “illicit trafficking.”
    USCA11 Case: 21-14505        Date Filed: 10/18/2022     Page: 4 of 11
    4                      Opinion of the Court                 21-14505
    a court determines whether the individual defendant committed
    one of those subdivided crimes, and whether one of those crimes
    is sufficiently analogous to a federal aggravated felony. Id. at 1179.
    To do so, the reviewing court may look to so-called “Shepard doc-
    uments”—a small set of documents including the plea agreement,
    plea colloquy, charging document, jury instructions, and “compa-
    rable judicial record[s] of this information”—to determine the ele-
    ments of the individual defendant’s divisible offense within the
    broader state statute. Id. at 1182; see Shepard v. United States, 
    544 U.S. 13
    , 26 (2005).
    In this case, the Department of Homeland Security (DHS)
    initiated removal proceedings against Goulbourne because he was
    a noncitizen convicted of a state drug offense. DHS thought the
    offense qualified as a federal aggravated felony, preventing it from
    granting him discretionary relief from removal. Before the IJ,
    Goulbourne argued that he qualified for cancellation of removal
    because his prior conviction for possession with intent to distribute
    MDMA under Ga. Code § 16-13-30 did not qualify as a drug-traf-
    ficking offense under the categorical approach.
    The IJ found that Ga. Code § 16-13-30 was divisible with re-
    spect to the identity of the controlled substance, so the IJ applied
    the modified categorical approach instead of the traditional cate-
    gorical approach. The IJ then found that Goulbourne’s state con-
    viction for MDMA possession under § 16-13-30(b) was sufficiently
    analogous to MDMA possession in the federal CSA, 
    21 U.S.C. § 841
    (a)(1); 
    21 C.F.R. § 1308.11
    (d)(11). Accordingly, the IJ
    USCA11 Case: 21-14505       Date Filed: 10/18/2022     Page: 5 of 11
    21-14505               Opinion of the Court                        5
    concluded that Goulbourne’s conviction qualified as both a drug-
    trafficking crime and an aggravated felony under § 1101(a)(43)(B),
    rendering him ineligible for discretionary relief from removal. The
    BIA adopted and affirmed the decision of the IJ, noting that this
    Circuit has held that Ga. Code § 16-13-30(b) was a divisible statute
    with respect to MDMA. See Gordon v. U.S. Att’y Gen., 
    962 F.3d 1344
    , 1348–49 (11th Cir. 2020). Goulbourne timely filed a petition
    for review.
    In the petition, Goulbourne argues that the IJ and BIA erred
    by applying the modified categorical approach to Ga. Code § 16-13-
    30(b). If they had properly applied the categorical approach, he
    says, then his state conviction would not qualify as a federal drug-
    trafficking crime because the state statute is broader than the fed-
    eral CSA. Specifically, he argues that § 16-13-30(b) lacks a
    knowledge or intent mens rea and, therefore, that its elements do
    not categorically match those of the federal statute. Though this
    Court has held that § 16-13-30(b) is divisible and the modified cate-
    gorical approach applies to convictions thereunder, see Gordon,
    962 F.3d at 1348–49, Goulbourne argues that Gordon does not ap-
    ply to his case. He insists that because Gordon analyzed whether
    the identity of a certain controlled substance under Georgia law
    qualified as a controlled substance under federal law, the reasoning
    USCA11 Case: 21-14505            Date Filed: 10/18/2022         Page: 6 of 11
    6                          Opinion of the Court                      21-14505
    does not apply to his case, where the critical issue is whether the
    elements of both statutes are categorically the same. 2
    II
    This Court has jurisdiction to review a final administrative
    order of the BIA under 
    8 U.S.C. § 1252
    (a)(2)(D). We review legal
    questions, such as whether a conviction qualifies as an aggravated
    felony, de novo. Lukaj v. U.S. Att’y Gen., 
    953 F.3d 1305
    , 1311 (11th
    Cir. 2020); Spaho v. U.S. Att’y Gen., 
    837 F.3d 1172
    , 1176 (11th Cir.
    2016). When the BIA issues a decision expressly adopting the IJ’s
    decision, we review both decisions. Rodriguez v. U.S. Att’y Gen.,
    
    735 F.3d 1302
    , 1308 (11th Cir. 2013). We may affirm on any ground
    supported by the record. United States v. Gibbs, 
    917 F.3d 1289
    ,
    1293 n.1 (11th Cir. 2019).
    2 A petitioner may not raise an issue for the first time in a reply brief. See
    United States v. Chalker, 
    966 F.3d 1177
    , 1195 n.8 (11th Cir. 2020); Sapuppo v.
    Allstate Floridian Ins., 
    739 F.3d 678
    , 683 (11th Cir. 2014). Goulbourne raised
    his argument distinguishing Gordon for the first time in his reply. His opening
    brief cited Gordon only in passing and failed to acknowledge its holding ap-
    plying the modified categorical approach to the specific Georgia statute at is-
    sue in this case. Even so, we will consider his Gordon argument because he
    has adequately raised the issue whether the modified categorical approach was
    properly applied in this case, and we may consider any available argument in
    support of that issue. See Kamen v. Kemper Fin. Servs., Inc., 
    500 U.S. 90
    , 91
    (1991) (“[O]nce an issue or claim is properly before a court, the court is not
    limited to the particular legal theories advanced by the parties but retains the
    independent power to identify and apply the proper construction of governing
    law.”).
    USCA11 Case: 21-14505             Date Filed: 10/18/2022         Page: 7 of 11
    21-14505                   Opinion of the Court                                 7
    III
    The Georgia CSA, in relevant part, prohibits a person from
    manufacturing, delivering, distributing, dispensing, administering,
    selling, or possessing with intent to distribute any controlled sub-
    stance. 
    Ga. Code Ann. § 16-13-30
    (b). The statute encompasses
    some substances not included on the schedules accompanying the
    federal CSA, so not all convictions under it categorically constitute
    aggravated felonies involving drug trafficking crimes. See Gordon,
    962 F.3d at 1348 (“The parties agree that § 16-13-30 encompasses
    substances that are not included on the schedules to the CSA; there-
    fore, not all convictions under the Georgia statute categorically
    constitute aggravated felonies involving drug trafficking crimes.”);
    see also Descamps v. United States, 
    570 U.S. 254
    , 261 (2013).
    Goulbourne is correct that under the traditional categorical ap-
    proach a reviewing court would not find that the state conviction
    categorically matched the federal aggravated-felony definition.
    But in Gordon, we held that Ga. Code § 16-13-30 is divisible
    because the state could charge and convict a defendant in separate
    counts for simultaneous possession of different controlled sub-
    stances. Gordon, 962 F.3d at 1349. 3 Our prior-panel-precedent rule
    3 We followed circuit precedent that looks to state case law to determine di-
    visibility if the face of the statute does not provide a clear answer. See Gordon,
    962 F.3d at 1349; Guillen, 910 F.3d at 1179–84. The Georgia Supreme Court
    has expressly rejected the contention that the illegal possession of several con-
    trolled substances amounts to a single offense, implying that the “elements of
    possession [of several controlled substances] are different” and that the “iden-
    tity of the substance possessed is an element of possession.” Gordon, 962 F.3d
    USCA11 Case: 21-14505            Date Filed: 10/18/2022         Page: 8 of 11
    8                          Opinion of the Court                      21-14505
    establishes that a prior panel’s holding is binding unless it has been
    overruled or abrogated by the Supreme Court or by this Circuit
    sitting en banc. See United States v. Steele, 
    147 F.3d 1316
    , 1317–18
    (11th Cir. 1998) (en banc). So we cannot accept Goulbourne’s con-
    tention that the traditional categorical approach applies to this stat-
    ute. 4
    We also must reject Goulbourne’s argument that Gordon
    does not apply to this case. He insists that Gordon never evaluated
    whether the elements of Ga. Code § 16-13-30 are analogous to the
    federal CSA, only whether the identity of MDMA in the federal
    CSA matched ecstasy in the Georgia statute. Cf. Gordon, 962 F.3d
    at 1349–51. If we were to properly analyze whether the elements
    matched, he argues, we would find that they do not because the
    state statute does not contain a mens rea requirement while the
    federal statute does.
    We disagree for two reasons. First, Goulbourne’s position
    is foreclosed by our decision in Gordon. We held there that a
    at 1349 (quoting Guillen, 910 F.3d at 1182). Therefore, we held that the statute
    was divisible and that the modified categorical approach applied. Id.
    4For this reason, Goulbourne’s appeals to Donawa, 735 F.3d at 1275, are in-
    apposite. In that case, we held that the Florida Controlled Substance Act was
    broader than the federal CSA based on their respective mens rea requirements,
    and thus that a Florida drug conviction did not qualify as a drug-trafficking
    offense under the federal CSA. Id. at 1281–82. But Gordon clearly controls
    our interpretation of the Georgia CSA. And it cannot be superseded by
    Goulbourne’s invocation of an unpublished opinion in Jones v. U.S. Att’y
    Gen., 742 F. App’x 491 (11th Cir. 2018).
    USCA11 Case: 21-14505           Date Filed: 10/18/2022       Page: 9 of 11
    21-14505                  Opinion of the Court                             9
    conviction under Ga. Code § 16-13-30 qualifies as a felony under
    the federal CSA and as an aggravated felony for cancellation of re-
    moval ineligibility. Gordon, 962 F.3d at 1351. Second, even if we
    could depart from Gordon’s holding, Goulbourne would be wrong
    on the merits. Goulbourne contends that the absence of a mens
    rea requirement in the Georgia statute makes it broader than the
    federal CSA, which requires proof of knowledge or intent. 
    21 U.S.C. § 841
    (a)–(a)(1). 5 But Georgia state courts have held that alt-
    hough § 16-13-30(b) offenses do not include an express mens rea
    requirement, they are not strict liability crimes; the criminal intent
    required to violate that section is the intent to possess, sell, or dis-
    tribute a drug with knowledge of the chemical identity of the drug.
    Awtrey v. State, 
    815 S.E.2d 655
    , 660–61 (Ga. Ct. App. 2018) (citing
    Duvall v. State, 
    712 S.E.2d 850
    , 851 (Ga. 2011)). A Georgia state
    appellate court even reversed a conviction under § 16-13-30(b)
    when the “State failed to establish” the knowledge element. See
    Mohamed v. State, 
    723 S.E.2d 694
    , 697 & n.13 (Ga. Ct. App. 2012).
    Further, Goulbourne misinterprets the federal CSA mens rea re-
    quirement; he insists that it requires both “knowledge of the illicit
    nature of the offense” as well as knowledge about the identity of
    the controlled substance, and thus does not match the state statu-
    tory elements. But this Circuit has held that the federal CSA mens
    5 We  construe his argument broadly to address whether the crimes are analo-
    gous under the modified categorical approach, even though he contends that
    the state and federal crimes do not match under the categorical approach that
    we have already established does not apply.
    USCA11 Case: 21-14505        Date Filed: 10/18/2022     Page: 10 of 11
    10                      Opinion of the Court                 21-14505
    rea requires only knowledge of the identity of the substance, not
    knowledge of the law. See United States v. Tobin, 
    676 F.3d 1264
    ,
    1279–80 & n.6 (11th Cir. 2012) (“[A] sincere belief that [a defend-
    ant’s] distribution of controlled substances was in conformity with
    the law would be ‘irrelevant’ to the distribution counts . . . .”); see
    also Bryan v. United States, 
    524 U.S. 184
    , 192 (1998) (“[T]he
    knowledge requisite to knowing violation of a statute is factual
    knowledge as distinguished from knowledge of the law.”) (quoting
    Boyce Motor Lines, Inc. v. United States, 
    342 U.S. 337
    , 345 (1952)
    (Jackson, J., dissenting)). The mens rea element therefore matches
    between the two statutes.
    Finally, we reject Goulbourne’s argument that a court may
    not look to state law to determine whether the identity of a sub-
    stance in a state conviction fits within the federal generic-crime def-
    inition. Again, Gordon already established that this is the proper
    analytic method. Gordon, 962 F.3d at 1350. And Goulbourne’s
    argument also rests on an incorrect understanding of the categori-
    cal approach. He asserts that looking to state law to determine the
    identity of a substance is a question of fact for a jury, implying that
    the practice violates Alleyne’s holding requiring issues of fact to be
    determined by a jury. Alleyne v. United States, 
    570 U.S. 99
    , 103
    (2013). But issues of fact submitted to a jury and found beyond a
    reasonable doubt constitute elements of the crime that are suscep-
    tible to examination under the modified categorical approach; in-
    deed, looking to state law is required under the categorical ap-
    proach. See Mathis v. United States, 
    579 U.S. 500
    , 513 (2016)
    USCA11 Case: 21-14505        Date Filed: 10/18/2022     Page: 11 of 11
    21-14505                Opinion of the Court                        11
    (distinguishing between finding facts and determining elements
    under the modified categorical approach and observing that “[t]he
    only [use of that approach] we have ever allowed . . . is to deter-
    mine which elements played a part in the defendant’s conviction”)
    (cleaned up); Bourtzakis v. U.S. Att’y Gen., 
    940 F.3d 616
    , 622 (11th
    Cir. 2019) (“Because the conduct a state statute proscribes ‘is a
    question of [state] law,’ we ‘look to the state’s courts to answer this
    question.’”) (quoting United States v. Lockett, 
    810 F.3d 1262
    , 1270
    (11th Cir. 2016)).
    In sum, Gordon held that a violation of Ga. Code § 16-13-30
    qualifies as a felony under the federal CSA and an aggravated felony
    for a drug-trafficking crime under the INA. Gordon, 962 F.3d at
    1351. We also concluded that MDMA, in particular, is a controlled
    substance under both the federal CSA and Georgia CSA. Id. at 1350
    (“We agree that Georgia case law indicates that Georgia courts re-
    fer to MDMA as ecstasy.”). Because the modified categorical ap-
    proach applied, the IJ and BIA were allowed to consider
    Goulbourne’s Shepard documents to determine that he was con-
    victed specifically of MDMA possession with intent to distribute.
    See Guillen, 910 F.3d at 1180.
    Because we must follow Gordon, and because the IJ and BIA
    properly did so, Goulbourne is ineligible for cancellation of re-
    moval. 8 U.S.C. § 1229b(a)(3). We deny Goulbourne’s petition.
    PETITION DENIED.