William Goulbourne v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 18, 2022
• Docket: 21-14505
• Status: Unpublished

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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(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.