Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act
by Dale Chappell
In a major decision that may affect thousands with a prior Florida drug trafficking conviction, the U.S. Court of Appeals for the Eleventh Circuit held that Florida’s drug trafficking statute under Fla. Stat. § 893.135 is indivisible and overbroad, and therefore not a “match” with its federal counterpart under the Controlled Substance Act (“CSA”).
After Natalia Cintron, a native of Argentina, was convicted for “trafficking in illegal drugs” under Fla. Stat. § 893.135(1)(c), the U.S. Department of Homeland Security began proceedings to deport her. When an immigration judge ordered her deportation, finding that Cintron’s conviction under § 893.135(1)(c) was a “drug trafficking crime” under the Immigration and Nationality Act (“INA”), Cintron appealed to the Board of Immigrations Appeals (“BIA”). The BIA found that § 893.135(1)(c) was divisible and that Cintron’s conviction qualified as a drug trafficking crime, requiring her deportation. Cintron appealed to the Eleventh Circuit.
The INA requires deportation of an alien who is convicted of an “aggravated felony,” which includes a “drug trafficking crime,” defined under the federal CSA as manufacturing, distributing, or possessing with intent to do so. Mere possession or purchase of drugs in not enough. Fla. Stat. § 893.135(1)(c) provides that a person who “knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession” of certain drugs, such as opioids or heroin, commits a felony known as “trafficking in illegal drugs.”
In order for § 893.135(1)(c) to qualify as an “aggravated felony” triggering deportation, it must be a “categorical match” with the generic federal offense listed in the INA, in this case drug trafficking under 21 U.S.C. § 841(a). However, when a state statute is “divisible,” or lists alternative elements and so effectively creates several different crimes, a court employs the “modified categorical approach” to determine which of those alternative crimes formed the basis of the defendant’s prior conviction. This means the court looks at certain state court documents to figure out which part of the statute was the basis for the conviction. Shepard v. United States, 544 U.S. 13 (2005).
Sometimes what appears to be alternative elements are really alternative “means” or different ways to commit a single offense. In Mathis v. United States, 136 S. Ct. 2243 (2016), the U.S. Supreme Court held that these different means do not make a statute divisible, but the opposite. In this case, a court may not look to the court documents of the prior conviction, but only to whether the statute as it reads in its entirety is a qualifying offense.
Trafficking under § 893.135(1)(c) is just such a statute. Aided by several amici curiae briefs, including from the Southern Poverty Law Center, the Eleventh Circuit found that § 893.135(1)(c) contains “six alternative methods of commission” of the offense of “trafficking in illegal drugs.” The Court therefore held that § 893.135(1)(c) is indivisible. This matters because one of the different ways to traffick drugs in Florida is to purchase or possess the drugs. This makes § 893.135(1)(c) not a “categorical match” with its federal counterpart under § 841(a), and therefore not a “drug trafficking crime” under the INA that would require Cintron’s deportation. The Court remanded to the BIA for further proceedings. See: Cintron v. United States AG, 882 F.3d 1380 (11th Cir. 2018).
Writer’s comment: The Eleventh Circuit’s holding in Cintron’s case is important for several reasons. First, prior to Mathis, the Court’s binding precedent held that Fla. Stat. § 893.135 was divisible to allow a sentencing court to look at the state court documents to determine which part of § 893.135 formed the basis of the conviction. United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011). Courts cannot do so now.
Next, because § 893.135(1)(c) includes purchase and possession of drugs and is “overbroad,” other federal sentencing enhancements may be affected by the Court’s decision. Both the career offender guideline and the Armed Career Criminal Act require an increased sentence for qualifying drug priors, but purchase and possession do not qualify under either provision. Apparently, a prior § 893.135(1)(c) conviction would not qualify under either provision after Cintron.
Finally, the Court subsequently held in Ulloa Francisco v. United States AG, 884 F.3d 1120 (11th Cir. 2018), that the reasoning in Cintron rendered Florida’s “trafficking in cocaine” under § 893.135(1)(b) equally overbroad, because it contains the same “six alternative methods of commission.”
While Cintron was an immigration case, the Cintron Court acknowledged that it has “routinely imported holdings from one context to the other” outside of immigration cases, applying its immigration holdings in other contexts.
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Related legal case
Cintron v. United States AG
| Year | 2018 |
|---|---|
| Cite | 882 F.3d 1380 (11th Cir. 2018) |
| Level | Court of Appeals |
