Dwight Dion Donawa v. U.S. Attorney General

Summary

The Eleventh Circuit held that a conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, does not categorically qualify as a drug-trafficking aggravated felony under the Immigration and Nationality Act. The court rejected application of the modified categorical approach because the Florida statute's lack-of-knowledge provision is an affirmative defense rather than an element the prosecution must prove. The court granted the petition for review, vacated the Board of Immigration Appeals' decision, and remanded for further proceedings.

Holdings

1. A conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, does not categorically qualify as a drug-trafficking aggravated felony because the Florida offense may be committed without proof that the defendant knew the illicit nature of the substance.
2. The modified categorical approach does not apply because Fla. Stat. § 893.13(1)(a)(2), considered with Fla. Stat. § 893.101, is not divisible into offenses defined by alternative elements, and the affirmative defense does not create a separate element the prosecution must prove.
3. The court declined to decide whether Donawa's conviction qualified as an illicit-trafficking aggravated felony because the BIA had not addressed that issue and the court would benefit from a reasoned decision below.

Questions Presented

1. Whether a conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, categorically qualifies as a drug-trafficking aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2).
2. Whether the modified categorical approach may be applied on the theory that Florida's affirmative-defense scheme makes the statute divisible.
3. Whether the court should determine in the first instance whether the conviction qualifies as an illicit-trafficking aggravated felony under the broader portion of 8 U.S.C. § 1101(a)(43)(B).

Disposition

reversed_and_remanded