Rubens Aspilaire v. U.S. Attorney General

992 F.3d 1248

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 6, 2021
• Docket: 19-12605
• Status: Published

Opinion

USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 1 of 19

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12605 ________________________

Agency No. A098-517-544

RUBENS ASPILAIRE,

Petitioner, versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals _______________________

(April 6, 2021)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF, * District Judge.

WILLIAM PRYOR, Chief Judge:

* Honorable Tilman Eugene Self III, United States District Judge for the Middle District of Georgia, sitting by designation. USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 2 of 19

This petition for review requires us to decide whether a Florida conviction

for being a felon in possession of a firearm, Fla. Stat. § 790.23(1)(a), is

categorically an aggravated felony under the Immigration and Nationality Act, 8

U.S.C. § 1101(a)(43)(E)(ii). The Board of Immigration Appeals ordered Rubens

Aspilaire removed based on his Florida felon-in-possession conviction. Aspilaire

argues that his offense is not categorically an aggravated felony because Florida

law defines as “firearms” some weapons that would not be considered firearms for

purposes of federal law. Florida’s antique-firearm exception to its definition of a

firearm, Fla. Stat. § 790.001(6), does not apply when an antique firearm is used in

the commission of an offense, unlike the federal exception. And Florida’s antique-

firearm exception does not include all black-powder muzzleloaders, unlike the

federal exception. But Aspilaire does not point to his own case or any other

prosecution to establish that Florida prosecutes felons for possessing firearms that

fall within the federal antique-firearm exception, and Florida’s definition of a

firearm is not broader than the federal definition on its face. So we deny his

petition for review.

I. BACKGROUND

Rubens Aspilaire is a native and citizen of Haiti. He entered the United

States in 2006 and became a lawful permanent resident in 2007. In 2012, Aspilaire

was convicted in Florida of possession of marijuana and carrying a concealed

2 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 3 of 19

firearm. He was sentenced to eight months in the county jail and two years of

probation.

After Aspilaire was arrested again in 2014 for violating his probation by

possessing a firearm, the Department of Homeland Security initiated removal

proceedings. Aspilaire explored options to avoid removal by adjusting his

immigration status. He was eventually released from custody in the spring of 2015,

and the removal proceedings against him were administratively closed.

But Aspilaire was arrested again in 2015 and charged by the State of Florida

with driving a motor vehicle without a valid license, resisting arrest, possessing 20

grams or less of marijuana, trafficking 28 grams or more of cocaine, being a felon

in possession of a firearm or ammunition or a concealed weapon, and possessing

heroin. The probable cause affidavit prepared in connection with the arrest

specified that Aspilaire possessed a “Springfield Armory . . . 9mm” “semi-

automatic handgun.” After a jury trial, he was convicted of “possession of [a]

weapon or ammo” by a felon and sentenced to 12 years of imprisonment.

Following Aspilaire’s felon-in-possession conviction, the government

moved to re-calendar the closed removal proceeding. It amended the charges

against Aspilaire to reflect the 2016 felon-in-possession conviction, which it

charged was an aggravated felony under the Immigration and Nationality Act.

Aspilaire moved to terminate the removal proceedings. He argued that his Florida

3 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 4 of 19

felon-in-possession conviction could not trigger deportability for two reasons:

because the Florida statute, unlike the federal statute, “[r]elates to ammunition and

other non-firearm weapons,” namely “[e]lectric [w]eapons,” and because Florida’s

definition of a firearm “[i]ncorporates antique firearms specifically excluded from

the federal firearm definition.” The immigration judge denied the motion to

terminate the removal proceedings and later ordered Aspilaire removed to Haiti.

Aspilaire appealed the removal order to the Board of Immigration Appeals.

The Board dismissed the appeal based solely on Aspilaire’s 2016 felon-in-

possession conviction. It rejected Aspilaire’s “electric weapon” argument by

“‘peek[ing]’ at [his] conviction record” to determine “that [the statute of conviction

was] a divisible statute with respect to the types of weapons it covers.” So it

applied the modified categorical approach to look at the jury verdict and

determined that Aspilaire was convicted “of possessing a ‘firearm or ammunition’

to the exclusion of all other weapons,” consistent with the generic federal offense.

The Board then turned to Aspilaire’s antique-firearm arguments. Aspilaire

argued that Florida’s definition of a firearm was overbroad because its antique-

firearm definition did not include black-powder muzzleloaders like the federal

definition, and because it excluded weapons used in the commission of an offense,

unlike the federal definition. Citing Supreme Court dicta from Moncrieffe v.

Holder, 569 U.S. 184 (2013), the Board explained that Aspilaire could carry his

4 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 5 of 19

burden only by pointing to exemplar prosecutions by Florida of antique weapons.

Because he failed to do so, it rejected his arguments.

Aspilaire petitioned for review, but the government moved to dismiss the

petition and remand for the Board to reconsider whether Moncrieffe requires an

alien to point to exemplar prosecutions involving antique firearms. We vacated the

removal order and remanded for further proceedings. On remand, the parties did

not pursue the Moncrieffe question, and the Board issued a new order dismissing

the appeal for the same reasons it dismissed the first appeal.

Aspilaire again petitioned for review. He maintains that “[t]he sole issue

presented in the instant petition” “is whether removal consequences may be

triggered where . . . the Florida ‘antique firearms’ exception is more narrow than

the federal exception” and where “the Florida offense permits conviction of a

‘firearms offense’ where an otherwise excepted ‘antique firearm’ is used in the

commission of an offense.” Neither party discusses the divisibility of Florida’s

felon-in-possession statute with respect to “electric weapons.”

II. STANDARD OF REVIEW

We review only the decision of the Board of Immigration Appeals, except to

the extent that the Board adopts the opinion of the immigration judge. Kazemzadeh

v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review de novo

5 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 6 of 19

whether a crime is an aggravated felony for purposes of the Immigration and

Nationality Act. Cintron v. U.S. Att’y Gen., 882 F.3d 1380, 1383 (11th Cir. 2018).

III. DISCUSSION

We divide our discussion in three parts. First, we explain the categorical

approach and examine the relevant statutes. Then, we discuss Aspilaire’s

exemplar-prosecutions argument and conclude that none of the decisions he cites

establishes that Florida prosecutes felons for possessing firearms that would be

considered antique firearms under the federal definition. Finally, we discuss

Aspilaire’s statutory-language arguments and explain that Florida’s felon-in-

possession statute is not broader than the federal statute on its face.

A. The Categorical Approach and the Relevant Statutes.

Under the Immigration and Nationality Act, “[a]ny alien who is convicted of

an aggravated felony at any time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). The Act defines an “aggravated felony” to include the federal

felon-in-possession statute. Id. § 1101(a)(43)(E)(ii); 18 U.S.C. § 922(g)(1). And

the Act makes clear that “[t]he term [aggravated felony] applies to an offense . . .

whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43).

To determine whether a state-law conviction constitutes an aggravated

felony under the Act, we apply either the categorical or modified categorical

approach, depending on whether the state statute is divisible. Donawa v. U.S. Att’y

6 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 7 of 19

Gen., 735 F.3d 1275, 1280 (11th Cir. 2013). When a state statute is not divisible,

we apply the categorical approach and “confine [our] consideration only to the fact

of conviction and the statutory definition of the offense.” Id. “A state offense is an

aggravated felony for [Immigration and Nationality Act] purposes only if it

necessarily involves facts equating the generic federal offense.” Id. When a state

statute is divisible, we apply the modified categorical approach, under which we

“expand our inquiry beyond the fact of conviction and also look to the record of

conviction—including documents involving the charge, plea agreement, or

sentence.” Id. (internal quotation marks omitted).

The parties agree that the categorical approach applies to the question

presented in this petition for review. And in any event, the record does not include

any documents that we could use to sharpen our analysis of Aspilaire’s antique-

firearm arguments under the modified categorical approach. Additionally,

Aspilaire does not argue the Board erred by concluding “that [Florida’s felon-in-

possession statute was] a divisible statute with respect to the types of weapons it

covers” and using the modified categorical approach to reject his electric-weapons

argument. We express no opinion on the divisibility of the Florida statute.

Aspilaire argues that, under the categorical approach, a Florida felon-in-

possession conviction does not necessarily involve facts equating to a federal

felon-in-possession conviction because Florida law defines as “firearms” some

7 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 8 of 19

weapons that would not be considered firearms for purposes of federal law. His

arguments involve the scope of both the Florida and the federal antique-firearm

exceptions.

For purposes of the federal felon-in-possession statute, 18 U.S.C.

§ 922(g)(1), a “firearm” is defined as follows:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. Id. § 921(a)(3) (emphasis added). For purposes of the Florida felon-in-possession

statute, Fla. Stat. § 790.23(1)(a), a “firearm” is defined as follows:

any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term “firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime. Id. § 790.001(6) (emphasis added).

There is an obvious difference between the two antique-firearm exceptions.

A weapon may be considered an antique firearm under federal law—but not under

Florida law—if it is used in the commission of a crime. Aspilaire says the

overbreadth of Florida’s antique-firearm exception as applied to antique firearms

used in the commission of a crime means that his Florida felon-in-possession

offense is not categorically an aggravated felony.

8 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 9 of 19

Federal law and Florida law also take different approaches to defining an

“antique firearm.” For purposes of federal law, an “antique firearm” is defined as:

(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

(B) any replica of any firearm described in subparagraph (A) if such replica— (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or (C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. 18 U.S.C. § 921(a)(16).

Florida’s definition of an “antique firearm” is similar to the federal

definition—in fact, it is more generous to felons with respect to manufacture

dates—but it does not include a separate black-powder muzzleloader category:

“Antique firearm” means any firearm manufactured in or before 1918 (including any matchlock, flintlock, percussion cap, or similar early type of ignition system) or replica thereof, whether actually manufactured before or after the year 1918, and also any firearm using fixed ammunition manufactured in or before 1918, for which

9 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 10 of 19

ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

Fla. Stat. § 790.001(1). Aspilaire maintains that the fact that Florida’s antique-

firearm definition does not include black-powder muzzleloaders like the federal

definition means that a violation of Florida’s felon-in-possession statute is not

categorically an aggravated felony.

Determining that a state statute creates a crime outside the scope of a generic

federal crime “requires more than the application of legal imagination to a state

statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A

petitioner must show a “realistic probability” that a state would apply the statute in

the manner he suggests, which he may do by “point[ing] to his own case or other

cases in which the state courts in fact did apply the statute” to reach conduct not

covered by the equivalent federal statute. Id. Alternatively, a petitioner may

demonstrate that “statutory language itself, rather than the application of legal

imagination to that language, creates [a] realistic probability that a state would

apply the statute to conduct beyond” the reach of a federal statute. Ramos v. U.S.

Att’y. Gen., 709 F.3d 1066, 1072 (11th Cir. 2013) (internal quotation marks

omitted).

The Supreme Court has said in dicta that petitioners making antique-

firearms arguments may not rely on statutory language alone. See Moncrieffe, 569

U.S. at 205–06 (“To defeat the categorical comparison [by pointing to a state’s

10 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 11 of 19

lack of an antique-firearm exception], a noncitizen [must] demonstrate that the

State actually prosecutes the relevant offense in cases involving antique

firearms.”). We have doubts that requiring exemplar prosecutions in cases

involving obviously overbroad language makes sense. But regardless of whether

the Moncrieffe dicta controls our decision, Aspilaire’s arguments fail. We first

discuss Aspilaire’s exemplar prosecutions before discussing his arguments about

the statutory language.

B. Aspilaire Is Not Entitled to Relief Based on Exemplar Prosecutions. To show a “realistic probability” that a state statute reaches conduct not

covered by the equivalent federal statute, a petitioner may “point to his own case or

other cases in which the state courts in fact did apply the statute” in the manner he

suggests. Gonzales, 549 U.S. at 193. Aspilaire does not assert that his own felon-

in-possession conviction involved an antique firearm. But he does point to

exemplar prosecutions that he says establish Florida actually prosecutes felons for

possession of federal antique firearms.

Aspilaire makes two arguments. We first discuss the exemplar prosecutions

Aspilaire presents in support of his argument that Florida’s treatment of antique

firearms “used in the commission of a crime,” Fla. Stat. § 790.001(6), exposes

felons to criminal liability for possessing federal antique firearms. We then discuss

the exemplar prosecutions he presents in support of his argument that Florida’s

11 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 12 of 19

antique-firearm exception is narrower than the federal exception because it does

not cover all black-powder muzzleloaders.

1. Aspilaire Does Not Point to Exemplar Prosecutions of Felons for Mere Possession of Federal Antique Firearms. Aspilaire argues that Florida’s exclusion from its antique-firearm exception

of firearms “used in the commission of a crime,” id., means that under Florida law,

unlike federal law, “an antique loses its exempted status if it merely is in the hands

of a felon.” Aspilaire points to two exemplar prosecutions to support his argument:

Margiotti v. State, 844 So. 2d 829, 830 (Fla. Dist. Ct. App. 2003), and Williams v.

State, 492 So. 2d 1051, 1054 (Fla. 1986), receded from by State v. Weeks, 202 So.

3d 1 (Fla. 2016). Neither decision establishes that Florida prosecutes felons for the

mere possession of federal antique firearms.

Margiotti does not help Aspilaire because the prosecution did not involve

Florida’s felon-in-possession statute at all. The court explained that “[d]uring [a]

burglary, the defendant used an antique, inoperable firearm.” 844 So. 2d at 830

(emphasis added). Florida law provides for a mandatory minimum sentence when a

firearm is possessed during the commission of a burglary. Fla. Stat.

§ 775.087(2)(a)1.d. Margiotti held that an antique firearm counts as a firearm for

the purpose of triggering a mandatory minimum sentence. 844 So. 2d at 831. The

decision has no bearing on Florida’s felon-in-possession statute, so it does not help

Aspilaire.

12 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 13 of 19

Williams is at least on point, but it does not help Aspilaire either. In

Williams, the Florida Supreme Court affirmed a felon-in-possession conviction and

rejected the defendant’s antique-firearm argument because the court “[did] not

believe that the legislature . . . intended that a convicted felon could be acquitted

when possessing a concealed, loaded weapon by using the excuse that the weapon

is an antique or a replica thereof.” 492 So. 2d at 1051, 1054. It continued, “This

literal requirement of the statute exhalts form over substance to the detriment of

public policy, and such a result is clearly absurd.” Id. at 1054.

But Williams is also useless to Aspilaire because it is no longer good law. In

Weeks, the Florida Supreme Court held that a defendant “was entitled to the

statutory exception of the felon-in-possession statute because his firearm was a

permissible ‘replica’ of an ‘antique firearm.’” 202 So. 3d at 9–10. And it receded

from the Williams decision to the extent the statutory interpretation in that decision

was inconsistent. Id. at 9. Weeks does more than undermine Aspilaire’s only on-

point exemplar prosecution; it proves that Florida does not expose felons to

criminal liability for mere possession of an antique firearm.

Aspilaire argues that Weeks cannot apply retroactively to deprive him of the

benefit of Williams because he was convicted before Weeks was decided, but his

argument misunderstands the nature of judicial decisions. “Judicial decisions have

had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co.,

13 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 14 of 19

215 U.S. 349, 372 (1910) (Holmes, J., dissenting); see also Bryan A. Garner et al.,

The Law of Judicial Precedent § 37, at 308–10 (2016). So “[a] judicial

construction of a statute is an authoritative statement of what the statute meant

before as well as after the decision of the case giving rise to that construction.”

Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994). When a court

corrects a wrong interpretation of a statute, “it is not accurate to say that [the

decision] ‘changed’ the law.” Id. at 313 n.12; see also Lester v. United States, 921

F.3d 1306, 1312 (11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing

en banc) (“[W]e [must] be mindful of the difference between a change in judicial

doctrine and a change in law.”). The same principle applies under Florida law. See

Hester v. State, 267 So. 3d 1084, 1086 (Fla. Dist. Ct. App. 2019) (quoting Rivers,

511 U.S. at 313 n.12). The prosecution in Williams was never valid under Florida

law, so Aspilaire may not rely on it as an example of how Florida law applies.

2. Aspilaire Does Not Point to Exemplar Prosecutions of Felons for Possessing Black-Powder Muzzleloaders.

Aspilaire also argues that Florida’s antique-firearm exception is narrower

than the federal exception because it does not cover all black-powder

muzzleloaders. He points to two exemplar prosecutions to support his argument:

Weeks, 202 So. 3d 1, and Bostic v. State, 902 So. 2d 225 (Fla. Dist. Ct. App. 2005),

disapproved of by Weeks, 202 So. 3d 1. Neither decision establishes that Florida

14 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 15 of 19

prosecutes felons for possessing black-powder muzzleloaders that would be

considered antique firearms under federal law.

As we have already discussed, Weeks cuts against Aspilaire’s argument. The

Florida Supreme Court held that the black-powder muzzleloader possessed by the

defendant was considered an antique firearm under Florida law, and it reversed his

felon-in-possession conviction. 202 So. 3d at 9–10. In doing so, the Florida

Supreme Court disapproved of the intermediate court’s contrary decision in Bostic,

the other decision Aspilaire cites as an exemplar prosecution, and established that

the Bostic prosecution was unlawful. Id. at 9. For the same reasons he cannot rely

on the repudiated Williams decision, Aspilaire cannot rely on Bostic.

Aspilaire was required to support his antique-firearm arguments by pointing

to successful Florida felon-in-possession prosecutions involving federal antique

firearms. Moncrieffe, 569 U.S. at 206. But the decisions he cites involved

prosecutions for other crimes, Margiotti, 844 So. 2d at 830; unsuccessful

prosecutions, Weeks, 202 So. 3d at 9–10; or unlawful prosecutions based on the

misapplication of Florida law, Williams, 492 So. 2d at 1054, receded from by

Weeks, 202 So. 3d 1; Bostic, 902 So. 2d at 228–29, disapproved of by Weeks, 202

So. 3d 1. So he has not satisfied his burden.

15 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 16 of 19

C. Aspilaire Is Not Entitled to Relief Based on the Statutory Language.

Aspilaire also argues he is entitled to relief because Florida’s definition of a

firearm is broader than the federal definition on its face, so that “the statutory

language itself . . . creates the realistic probability that [Florida] would apply [its

felon-in-possession] statute to conduct beyond” the reach of the federal statute.

Ramos, 709 F.3d at 1072. [Bl. Br. at 27–28]. Even assuming that Aspilaire may

rely solely on the statutory language without pointing to exemplar prosecutions,

see Moncrieffe, 569 U.S. at 205–06, his arguments are based on “the application of

legal imagination” to Florida’s antique-firearm exception, not a “realistic

probability” of prosecution created by “the statutory language itself.” Ramos, 709

F.3d at 1072 (internal quotation marks omitted). So he is not entitled to relief.

Start with Aspilaire’s argument that Florida’s felon-in-possession statute is

overbroad based on the exclusion of antique firearms “used in the commission of a

crime” from Florida’s antique-firearm exception. Fla. Stat. § 790.001(6). Aspilaire

says this difference means that “Florida punishes [the possession of] an otherwise-

qualifying antique firearm . . . even in offenses as simple as ‘felon in possession.’”

Aspilaire’s interpretation of the phrase “used in the commission of a crime” is

linguistically implausible. Cf. Bailey v. United States, 516 U.S. 137, 142–43 (1995)

(holding that the word “uses” in the phrase “during and in relation to any crime of

violence or drug trafficking crime, uses or carries a firearm,” “must connote more

16 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 17 of 19

than mere possession” (alteration adopted) (internal quotation marks omitted)).

And the Florida Supreme Court rejected his interpretation when it concluded that a

felon was entitled to the benefit of the antique-firearm exception in Weeks. 202 So.

3d at 9–10.

“The ordinary meaning[] of the word[] ‘use[’] . . . connote[s] activity beyond

simple possession.” Bailey, 516 U.S. at 145 (alteration adopted) (internal quotation

marks omitted). And that ordinary meaning applies in the context of Florida’s

criminal code. Florida law draws a clear distinction between the “use” and

“possession” of a firearm. See Fla. Stat. § 775.087(2)(a)1. (“Any person who is

convicted of [an enumerated] felony . . . , regardless of whether the use of a

weapon is an element of the felony, . . . and during the commission of the offense,

such person actually possessed a ‘firearm’ . . . , shall be sentenced to a minimum

term of imprisonment of 10 years[.]” (emphasis added)). Aspilaire’s “use”

argument does not find support in “the statutory language itself.” Ramos, 709 F.3d

at 1072.

Next, consider Aspilaire’s argument that Florida’s felon-in-possession

statute is overbroad because Florida’s antique-firearm exception does not cover all

black-powder muzzleloaders. To be sure, Florida does not classify muzzleloaders

as antique firearms on the same basis as the federal government. The federal

government defines antique firearms partially by reference to their loading

17 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 18 of 19

configurations and propellants. 18 U.S.C. § 921(a)(16)(C) (defining as an antique

firearm “any muzzle loading rifle . . . designed to use black powder, or a black

powder substitute”). Florida instead defines antique firearms partially by reference

to their ignition systems. Weeks, 202 So. 3d at 9 (“[S]ection 790.001(1)

emphasizes the ignition system as the distinctive feature of an ‘antique firearm,’

and therefore requires that the firearm possess a certain type of ignition system

explicitly mentioned by the statute.”). Aspilaire assumes the Florida ignition-

system approach fails to cover weapons covered by the federal loading-

configuration-and-propellant approach.

But both approaches lead to the same results. Gunsmiths cannot freely

combine different propellants and ignition systems—firearms technologies work

only in specific combinations. Black-powder muzzleloaders generally use a

“matchlock, flintlock, percussion cap, or similar early type of ignition system,”

Fla. Stat. § 790.001(1), so they are typically considered antique firearms under

Florida law by virtue of their ignition systems, see Toby Bridges, Muzzleloading

12–21 (1997) (tracing the history of “muzzleloader ignition systems” through the

“matchlock, wheellock, snaphaunce, miquelet, flintlock, percussion caplock[,] and

in-line percussion caplock”). In fact, Florida’s unlawful prosecutions of black-

powder weapons involved a “black powder muzzleloader rifle with a percussion

cap ignition system,” Weeks, 202 So. 3d at 3 (emphasis added), and “an in-line

18 USCA11 Case: 19-12605 Date Filed: 04/06/2021 Page: 19 of 19

percussion-cap, black-powder weapon,” Bostic, 902 So. 2d at 230 (Sharp, J.,

dissenting) (emphasis added).

To be sure, changes in firearms technology could create close questions

under Florida’s ignition-system approach. See, e.g., Mod. Muzzleloading, Inc. v.

Magaw, 18 F. Supp. 2d 29, 36–37 (D.D.C. 1998) (deferring to agency

interpretation that classified primer-based ignition system as non-antique); U.S.

Patent No. 7,197,843 B2 (patent for electronic black-powder ignition system). But

dreaming up hypothetical weapons designed to probe the boundaries of a state’s

antique-firearm exception involves “the application of legal imagination.” Ramos,

709 F.3d at 1072 (internal quotation marks omitted). The possibility of close

questions in future cases does not prove that “the statutory language . . . creates the

realistic probability that [Florida] would apply the statute to conduct beyond” the

reach of the federal statute. Id. (internal quotation marks omitted). Florida’s felon-

in-possession statute is not broader than the federal statute on its face, so Aspilaire

is not entitled to relief based on the statutory language.

IV. CONCLUSION

We DENY Aspilaire’s petition for review.