Amended Florida drug statute is not an aggravated felony as defined under the Immigration and Nationality Act

Dwight Donawa, a citizen of Antigua, entered the United States in 1985 and became a permanent resident. In 2009 he was convicted in Florida state court of possession of cannabis with intent to sell or deliver in violation of § 893.13(1)(a)(2). After his conviction Department of Homeland Security began removal proceedings on grounds that he was removable because he had been convicted of an aggravated felony (8 U.S.C. § 227(a)(2)(A)(iii). Under the Immigration and Nationality Act permits the government to remove (deport) noncitizens who are convicted of certain crimes including drug offenses. Ordinarily a deportable citizen may ask the Attorney General for discretionary relief from removal, but if the noncitizen has been convicted of an aggravated felony, his is not only deportable but he is also ineligible for any discretionary relief. Before the Immigration Court he argued that he was not subject to removal and alternatively he argued that he was at the very least eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(a).

In Donawa v. U.S. Attorney General the court of appeals faced the issue of whether Donawa’s conviction under Florida Statutes § 893.13(1)(a)(2) for possession of cannabis with intent to sell or deliver is, as a matter of law, an aggravated felony. The definition of an aggravated felony that is relevant here is “illicit trafficking in a controlled substance” as defined by Title 18 U.S.C. § 924(c) The issue boiled down to whether 893.13(1)(a)(2) constitutes a drug trafficking crime, and if not whether it falls into the broader category of “illicit trafficking in a controlled substance.”

The Eleventh Circuit reached the conclusion that § 893.13(1)(a)(2) is not an aggravated felony as a matter of law. In Fequiere v. Ashcroft, a case decided in 2002, the Eleventh Circuit determined the statute was an aggravated felony. Since the Fequiere decision, Florida enacted § 893.101 which significantly changed the nature of the offense. In this amendment the legislature eliminated the element of knowledge of the illicit nature of the controlled substance. Instead, the amendment made the lack of knowledge an affirmative defense to the offense. Thus, the statutory scheme, which had been in place at the time of the Fequiere the decision, had change to the extent that the required element of knowledge was no longer the state’s burden. In contrast, the federal drug trafficking statute, 18 U.S.C. 841(a)(1), which is among the drug trafficking offenses listed under 18 U.S.C. 924(c)(2), requires the government to establish that the defendant had knowledge of the nature of the substance in his possession. Under the categorical approach, a person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. Under those same facts, a person could not be convicted of the federal crime. Applying the categorical approach, (where a court confines its consideration only to the fact of conviction and the statutory definition of the offense) the Florida statute cannot qualify as an aggravated felony.

Though this is an immigration case, finding that the Florida drug statute does not fit the definition of an aggravated felony could have a big impact on federal criminal cases in Miami as well as other federal courts within the Eleventh Circuit.