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                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-13526
                               ________________________

                             Agency Case No. A040-157-660

DWIGHT DION DONAWA,

                                                                                     Petitioner,

                                             versus

U.S. ATTORNEY GENERAL,

                                                                                   Respondent.
                               ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                               ________________________
                                   (November 7, 2013)

Before MARTIN, JORDAN and SUHRHEINRICH, * Circuit Judges.

MARTIN, Circuit Judge:

       Dwight Dion Donawa petitions for review from an order of the Board of

Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) determination

that Mr. Donawa is not eligible for cancellation of removal because he committed

*
 Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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an aggravated felony. We must decide whether a conviction under Fla. Stat.

§ 893.13(1)(a)(2) for the possession of cannabis with the intent to sell or deliver is,

as a matter of law, a drug trafficking aggravated felony. After a careful review of

the record, and with the benefit of oral argument, we conclude that it is not.

                                            I.

      The Immigration and Nationality Act (INA) allows the government to deport

noncitizens who are convicted of certain crimes while in the United States,

including drug offenses. 8 U.S.C. § 1227(a). Ordinarily, a deportable noncitizen

may ask the Attorney General for discretionary relief from removal. See 

But if that noncitizen has been convicted of an aggravated felony, he is

not only deportable; he is also ineligible for any discretionary relief. 

(b)(1)(C). Mr. Donawa now finds himself in precisely this

unenviable position: the BIA has determined that he was convicted of a crime that,

as a matter of law, qualifies as an aggravated felony. This BIA determination

gives the Attorney General no choice but to deport Mr. Donawa.

      Mr. Donawa is a native and citizen of Antigua who entered the United States

as a lawful permanent resident on December 26, 1985. On June 8, 2009 he was

convicted in Florida state court of two charges: (1) possession of cannabis with

intent to sell or deliver in violation of Fla. Stat. § 893.13(1)(a)(2); and (2)

possession of drug paraphernalia in violation of Fla. Stat. § 893.147(1).


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      The Department of Homeland Security began removal proceedings against

Mr. Donawa on November 2, 2011. The Department charged that Mr. Donawa

was removable first because he had been convicted of an aggravated felony

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and second because he had been

convicted of a crime relating to a controlled substance pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i).

      Mr. Donawa disputed both of these charges before the IJ, arguing that he

was not subject to removal. Alternatively, and most important for this appeal, he

argued that he was at the very least eligible for discretionary cancellation of

removal under 8 U.S.C. § 1229b(a). The IJ rejected Mr. Donawa’s arguments,

finding him removable and also ineligible for cancellation of removal as a matter

of law because Fla. Stat. § 893.13(1)(a)(2) is a drug trafficking crime, and so an

aggravated felony. Mr. Donawa appealed the IJ’s decision to the BIA, which

affirmed the IJ’s conclusion without adopting its reasoning. Mr. Donawa now

appeals from the BIA’s final order.

                                          II.

      It is important first to clarify the issue now before us. Mr. Donawa concedes

that he is removable. He asks us only to consider whether he is removable as an




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aggravated felon, and therefore ineligible for discretionary relief. 1 The basis of the

BIA’s decision further limits the scope of our review because it rested entirely on

his cannabis conviction under Fla. Stat. § 893.13(1)(a)(2). The BIA made no

ruling on what effect Mr. Donawa’s conviction for possessing drug paraphernalia

has on his eligibility for cancellation of removal. That issue is therefore not before

us on this appeal. Rather, the question before us is simply this: whether Mr.

Donawa’s conviction under Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat.

§ 893.101, is an aggravated felony as a matter of law. Although we are mindful

that Congress has restricted appellate review of immigration proceedings, we retain

jurisdiction over questions of law such as this one, which we review de novo. 2 See

8 U.S.C. § 1252(a)(2)(D); Tovar v. U.S. Attorney Gen., 

, 1303 (11th

Cir. 2011).

       The INA provides various definitions for the term “aggravated felony,” but

we are concerned with only one here. For Mr. Donawa’s appeal, the term

“aggravated felony” means “illicit trafficking in a controlled substance . . .

1
  We reject the government’s argument that Mr. Donawa waived this issue. Far from failing to
address this dispositive legal question, Mr. Donawa focused almost exclusively on it. The
government’s objection to the particular way in which Mr. Donawa framed his argument is of no
moment. Nor is this controversy rendered moot because Mr. Donawa concedes his removability.
See Carachuri-Rosendo v. Holder, 

, ___, 

, 2581 (2010) (considering
the question of whether an alien was eligible for discretionary relief from removal even though
he conceded removability).
2
 In keeping with the rule in this Circuit, the BIA’s opinion in this case is not entitled to
deference because it is neither precedential nor consistent with other decisions rendered by the
BIA. See Quinchia v. U.S. Attorney Gen., 

, 1258–59 (11th Cir. 2008).
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including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8

U.S.C. § 1101(a)(43)(B). Thus, the question before us can be broken down into

two distinct issues: (1) whether a violation of Fla. Stat. § 893.13(1)(a)(2)

constitutes a “drug trafficking crime”; and (2) if not, whether it falls into the

broader category of “illicit trafficking in a controlled substance.” In resolving each

of these questions, courts apply a categorical or modified categorical approach,

depending on the statutory scheme. See Descamps v. United States, ___ U.S. ___,

___, 

, 2281 (2013); Jaggernauth v. U.S. Attorney Gen., 

, 1353–56 (11th Cir. 2005).3

       Under the categorical approach, a court must confine its consideration only

to the fact of conviction and the statutory definition of the offense. E.g., Ramos v.

U.S. Attorney Gen., 

, 1069 (11th Cir. 2013). We do not consider the

facts of the case, and instead ask only “whether the state statute defining the crime

of conviction categorically fits within the generic federal definition of a

corresponding aggravated felony.” Moncrieffe v. Holder, ___ U.S. ___, ___, 

, 1684 (2013) (quotation marks omitted). A state offense is an

aggravated felony for INA purposes only if it necessarily involves facts equating


3
  Descamps addressed the modified categorical approach in the context of punishment under the
Armed Career Criminal Act rather than, as is relevant here, the immigration context. The
general analytical framework and principles, however, are analogous, and so this Court has
routinely imported holdings from one context to the other. See, e.g., 

–55 (applying the analytical approach established in Taylor v. United States, 

,

(1990), an Armed Career Criminal Act case, in the immigration context).
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the generic federal offense. 

noncitizen’s actual conduct involved

such facts is quite irrelevant.” 

omitted). “Because we

examine what the state conviction necessarily involved, not the facts underlying

the case, we must presume that the conviction rested upon nothing more than the

least of the acts criminalized, and then determine whether even those acts are

encompassed by the generic federal offense.” 

and alterations

omitted).

      This general approach is not without exception. The modified categorical

approach applies when the state statute is “divisible”—that is, when it punishes

some conduct that would satisfy the elements of a federal felony and some conduct

that would not. See 

; 

–56.

When the state statute under examination is divisible, 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.” 

; see also Shepard v. United States, 

, 26, 

, 1263

(2005) (limiting the scope of judicial records that can be relied upon by courts

applying the modified categorical approach).

      However, any idea that this Court inevitably applies the more searching

modified categorical approach when a state crime does not qualify as an

aggravated felony under the pure categorical approach is misguided. Rather, the


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modified categorical approach is applied only when a single statute lists a number

of alternative elements that effectively create several different crimes, some of

which are aggravated felonies and some of which are not. 

. As the Supreme Court recently reminded us, the modified categorical

approach is intended as a “tool used in a narrow range of cases to identify the

relevant element from a statute with multiple alternatives.” 

(quotation

marks omitted). It is not intended to be “a device employed in every case to

evaluate the facts that the judge or jury found.” 

crime for which a

defendant is convicted does not “require the factfinder” to make a determination of

an element in at least some cases, courts analyzing whether a conviction qualifies

as an aggravated felony cannot invoke the modified categorical approach to look

beyond the fact of conviction. 

                                              A.

      This is not the first time we have been called upon to consider whether Fla.

Stat. § 893.13(1)(a)(2) qualifies as an aggravated felony. See Fequiere v. Ashcroft,

, 1326 n.3 (11th Cir. 2002) (noting that the then-effective version of

the statute qualified as a drug trafficking aggravated felony). After our decision in

Fequiere, however, Florida passed Fla. Stat. § 893.101, significantly changing the

nature of the offense:

      (1) The Legislature finds that the [Florida Supreme Court] cases . . .
      holding that the state must prove that the defendant knew of the illicit
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      nature of a controlled substance found in his or her actual or
      constructive possession[] were contrary to legislative intent.

      (2) The Legislature finds that knowledge of the illicit nature of a
      controlled substance is not an element of any offense under this
      chapter. Lack of knowledge of the illicit nature of a controlled
      substance is an affirmative defense to the offenses of this chapter.

      (3) In those instances in which a defendant asserts the affirmative
      defense described in this section, the possession of a controlled
      substance, whether actual or constructive, shall give rise to a
      permissive presumption that the possessor knew of the illicit nature of
      the substance.

      This amendment thus eliminated from the Florida statutory scheme what had

been, at the time of our Fequiere decision, a required element with the burden of

proof resting on the government: mens rea with respect to the illicit nature of the

substance. The federal analogue to this offense is 21 U.S.C. § 841(a)(1), which is

among the drug trafficking offenses listed under 18 U.S.C. § 924(c)(2). The

federal statute, in contrast to Florida’s current law, requires the government to

establish, beyond a reasonable doubt and without exception, that the defendant had

knowledge of the nature of the substance in his possession. See United States v.

Sanders, 

, 1309 (11th Cir. 2012).

                                          B.

      The first—and, given the posture of this case, only—question we consider is

whether Fla. Stat. § 893.13(1)(a)(2) is, as a matter of law, a drug trafficking crime

as defined in 18 U.S.C. § 924(c)(2). The answer is that it is not.


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      Under the categorical approach, it is clear that the “least of the acts

criminalized” by Fla. Stat. § 893.13(1)(a)(2) does not necessarily violate 21 U.S.C.

§ 841(a)(1). A person could be convicted under the Florida statute without any

knowledge of the nature of the substance in his possession. That same person

could not be convicted of the federal crime. There can be no argument, therefore,

that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, categorically

qualifies as an aggravated felony.

      The government urges us to treat the statute as divisible and apply the

modified categorical approach. The government argues that, while the basic

offense does not include a mens rea element with respect to the nature of the

substance, the affirmative defense defined by Fla. Stat. § 893.101 effectively

creates a separate offense under Fla. Stat. § 893.13(1)(a)(2) that does include that

mens rea element. Thus, they say the modified categorical approach should be

applied to this statutory scheme even after the Supreme Court expressly limited its

applicability in Descamps.

      We cannot acquiesce in the government’s approach. An affirmative defense

generally does not create a separate element of the offense that the government is

required to prove in order to obtain a conviction. Rather, “[t]he defendant bears

the burden of proving an affirmative defense.” Black’s Law Dictionary 482 (9th

ed. 2009) (defining affirmative defense). In stark contrast, the elements of a crime


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are the “constituent parts of a crime . . . that the prosecution must prove to sustain a

conviction.” 

(defining elements of crime). We cannot ignore this

distinction in the allocation of the burden of proof in deciding whether to apply the

modified categorical approach. Descamps tells us loud and clear that a court may

only turn to the modified categorical approach if the State must prove every

element of a federal offense in order to obtain a conviction in at least some cases.

See 

, 2293 (holding that a conviction under a

California statute could not serve as an Armed Career Criminal Act predicate

“because California, to get a conviction need not prove” an essential element of the

generic federal offense).

       If Florida’s statutory scheme did in fact place the burden of proof on the

prosecution, the government might be right that the statute is divisible and subject

to the modified categorical analysis. But it simply does not. Although the

government represented to this Court that the Florida Supreme Court has held that

the prosecution bears the burden to prove knowledge of the illicit nature of a

substance beyond a reasonable doubt whenever a defendant raises the affirmative

defense, it has done no such thing. 4 The case cited by the government in support

of its argument, State v. Adkins, 

(Fla. 2012), holds only that placing


4
  Because we are “bound by the Florida Supreme Court’s interpretation of state law,” we defer to
its interpretation of the allocation of the burden under the statutory scheme. Johnson v. United
States, 

, 138, 

, 1269 (2010).
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the burden of the affirmative defense on the defendant is not an unconstitutional

shift in the burden of proof. 

It does not follow from the Florida

Supreme Court’s holding in Adkins that a defendant revives an element of a

criminal statute that has been expressly removed by the Florida legislature merely

by asserting an affirmative defense. Indeed, the Adkins court stated without

qualification, “the State is not required to prove that the defendant had knowledge

of the illicit nature of the controlled substance in order to convict the defendant.”

Id.; see also In re Standard Jury Instructions in Criminal Cases—Instructions 25.9–

25.3, 

, 1211 (Fla. 2013) (per curiam) (“Consistent with the Court’s

decision in State v. Adkins, instructions 25.9–25.13 are amended to remove

element 4, the requirement that the defendant have knowledge of the illicit nature

of the substance, and to add language that lack of knowledge of the illicit nature of

the substance is an affirmative defense.” (citation omitted)). With no such burden

placed on the government, we cannot say that the statute creates separate crimes

defined by distinct elements so as to permit application of the modified categorical

approach.

      We can’t help but note that, even if we accepted the government’s argument

that we should treat affirmative defenses as separate elements of an offense, Mr.

Donawa’s conviction would still not be an aggravated felony as a matter of law. If

resort to the modified categorical approach were appropriate, we could only find


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that Mr. Donawa’s conviction categorically qualified as an aggravated felony if the

record of conviction established that he raised and lost the affirmative defense.

Only under those circumstances could it possibly be said that Mr. Donawa was

convicted under the “subset” of the statute that requires proof of knowledge of the

illicit nature of the substance, at least as represented by the government. But as the

government conceded in its brief, “[t]here is no record evidence that Donawa

raised any affirmative defense during his criminal trial.” The analytical approach

the government asks us to apply is therefore not only contrary to Supreme Court

precedent, but also unavailing.

      We therefore conclude that Fla. Stat. § 893.13(1)(a)(2), as amended by Fla.

Stat. § 893.101, does not qualify as a drug trafficking aggravated felony under the

categorical approach. We conclude as well that it would be improper to engage the

modified categorical approach for this statute because it is not divisible within the

meaning of Descamps.

                                           C.

      But Mr. Donawa’s case requires still further consideration. Even if an

offense does not qualify as a drug trafficking aggravated felony, it may still render

a person ineligible for cancellation of removal if it qualifies as an illicit trafficking

aggravated felony. The government urges us to affirm the result reached by the

BIA on this alternative ground.


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       For us to do so on this record would be unwise. The BIA never considered

whether Mr. Donawa’s cannabis conviction constituted an illicit trafficking

aggravated felony. 5 Rather, it based its decision entirely on what we now know is

the erroneous conclusion that Fla. Stat. § 893.13(1)(a)(2) is a drug trafficking

aggravated felony. Although it is certainly within our discretion to reach this legal

question even though the BIA did not, see Calle v. U.S. Attorney Gen., 

, 1330 (11th Cir. 2007), we believe our consideration would benefit

significantly from a reasoned decision on the issue below. We therefore decline to

reach it.

       If the BIA considers on remand whether Mr. Donawa’s convictions

constitute illicit trafficking offenses as a matter of law, it should apply the

categorical approach described above, assuming the least culpable conduct under

the statute and asking whether it would necessarily be considered an illicit

trafficking offense punishable as a felony under federal law. See 

.

                                               III.

       The BIA erred in finding that, as a matter of law, a violation of Fla. Stat.

§ 893.13(1)(a)(2), as amended by Fla. Stat. § 893.101, qualifies as a drug


5
  The fact that the IJ considered this question, finding in Mr. Donawa’s favor, is irrelevant. Our
review is limited to the BIA’s decision because it did not “expressly adopt[]” the IJ’s decision.
Ruiz v. Gonzales, 

, 765 (11th Cir. 2007).
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trafficking aggravated felony. Mr. Donawa and others convicted under this statute

may still be able to meet their burden to demonstrate eligibility for cancellation of

removal, and should be given a chance to shoulder that burden. See 8 U.S.C.

§ 1229a(c)(4)(A) (placing the burden to establish eligibility for relief from removal

on the deportable alien).

      Mr. Donawa’s Petition is GRANTED, and we VACATE AND REMAND

for further proceedings consistent with this opinion.




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