Case: 15-11299       Date Filed: 09/19/2016      Page: 1 of 18


                                                                                [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ______________________

                                     No. 15-11299
                               ______________________

                               Agency No. A055-033-907


ILIR SPAHO,

                                                          Petitioner,

versus


UNITED STATES ATTORNEY GENERAL,

                                                          Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                              ________________________

                                   (September 19, 2016)


Before MARCUS, JORDAN, and WALKER,∗ Circuit Judges.

_____________________
*Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by
designation.
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WALKER, Circuit Judge:

       Ilir Spaho seeks review of the Board of Immigration Appeals’ (“the

Board”) order upholding the Immigration Judge’s (“IJ”) finding that his

conviction for violating Florida Statute § 893.13(1)(a)(1) constituted an

aggravated felony and therefore rendered him removable under §

237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §

1227(a)(2)(A)(iii). After careful review, we affirm. 1

                                                I.

       Spaho is a citizen of Albania but has been a lawful permanent resident of

the United States since 2002. On May 14, 2012, he pled no contest to one count

of Trafficking in Illegal Drugs 4<14 Grams in violation of Florida Statute §

893.135(1)(c)(1); two counts of Sale of a Controlled Substance in violation of

Florida Statute § 893.13(1)(a)(1); and two counts of Possession with Intent to

Sell, Deliver, or Manufacture a Controlled Substance in violation of Florida

Statute § 893.13(1)(a)(1). He was sentenced to forty months’ imprisonment.


1
  Two motions remain pending on the docket for this appeal. The first asks the court to hold its
proceedings in abeyance until the Supreme Court of the United States decides Mathis v. United
States, 

(granting certiorari). The Supreme Court issued its opinion in Mathis on
June 23, 2016, see Mathis v. United States, 

(2016), and the motion is therefore
moot. The second is a motion by the Florida Association of Criminal Defense Lawyers
(“FACDL”) seeking leave to file a brief of amicus curiae in support of the petitioner. This
motion was filed on September 2, 2016, more than a year after the petitioner submitted his
principal brief, and is therefore untimely. See Fed. R. App. P. 29(e)(brief of amicus curiae to
be filed no later than seven days after the principal brief of the party being supported); see also
11th Cir. R. 29-2. Both motions are therefore denied.
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      Immediately following his conviction and sentencing, the Department of

Homeland Security (“DHS”) charged him with removability on two grounds: (1)

under § 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), as a noncitizen

convicted of a violation of law relating to a controlled substance, and (2) under §

237(a)(2)(A)(iii) of the INA as a noncitizen convicted of an aggravated felony

based upon his 2012 convictions. Spaho conceded removability under §

237(a)(2)(B)(i) but not under § 237(a)(2)(A)(iii).

      Removability under § 237(a)(2)(B)(i) would not bar Spaho from applying

for asylum, cancellation of removal, and withholding of removal, but

removability under § 237(a)(2)(A)(iii) would render him ineligible for such

relief. See Moncrieffe v. Holder, 

, 1682 (2013). He argued that he

is not removable under § 237(a)(2)(A)(iii) because none of his 2012 convictions

were convictions for aggravated felonies.

      In July of 2013, the IJ rejected Spaho’s arguments and found him

removable under § 237(a)(2)(A)(iii) on the basis that his conviction under §

893.135(1)(c)(1) constituted an aggravated felony under the “drug trafficking

crime” component of the aggravated felony definition. Section 237(a)(2)(A)(iii)

of the INA specifies removability based on an aggravated felony and includes

within that category, as set forth in 8 U.S.C. § 1101(a)(43)(B), “illicit trafficking

in a controlled substance (as defined in section 802 of Title 21), including a drug


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trafficking crime (as defined in section 924(c) of Title 18).” The IJ did not

address whether Spaho’s other 2012 convictions were aggravated felony

convictions.

      Having been convicted of an offense that the IJ found to be an aggravated

felony, Spaho became statutorily ineligible for asylum, cancellation of removal,

and withholding of removal. See 

. He remained

eligible only for deferral of removal under the Convention Against Torture

(“CAT”). See 

n.1.

      On July 11, 2014, Spaho submitted an application for cancellation of

removal and asked the IJ to reconsider its aggravated felony finding in light of

our decision in Donawa v. U.S. Attorney General, 

(11th Cir.

2013), that a conviction under Florida Statute § 893.13(1)(a)(2) was not a “drug

trafficking crime” under 8 U.S.C. § 1101(a)(43)(B). On August 25, 2014, DHS

filed a second brief in support of the aggravated felony charge, citing Matter of L-

G-H, 26 I&N Dec. 365, 368 (BIA 2014), in which the Board held that, although §

893.13(1)(a) did not fit under the “drug trafficking crime” component, an offense

under the statute could still qualify as an aggravated felony under the broader

“illicit trafficking” component.

      On November 12, 2014, the IJ held that Spaho was statutorily ineligible for

asylum, cancellation of removal, and withholding of removal because his §

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893.13(1)(a)(1) conviction for sale of a controlled substance was an aggravated

felony conviction under the “illicit trafficking” component of 8 U.S.C. §

1101(a)(43)(B). The IJ did not address whether Spaho’s conviction under §

893.135(1)(c)(1)—the conviction on which the IJ’s earlier July 2013 ruling had

focused—constituted an aggravated felony conviction as well. The IJ also found

that Spaho was not entitled to deferral of removal under the CAT because he

failed to establish that it was more likely than not that he would be tortured by or

with the acquiescence of the Albanian government. On February 26, 2015, the

Board of Immigration Appeals affirmed the IJ’s decision.

      Spaho now appeals. He argues that the Board erroneously determined that §

893.13(1)(a)(1) is divisible and, as a result, erroneously applied the modified

categorical approach rather than the categorical approach in concluding that his

conviction under § 893.13(1)(a)(1) constituted an aggravated felony conviction.

He does not challenge the denial of his application for deferral of removal under

the CAT.

                                         II

      We review only the decision of the Board “except to the extent that [the

Board] expressly adopts the IJ’s opinion,” in which case we “review the IJ’s

decision as well.” Najjar v. Ashcroft, 

, 1284 (11th Cir. 2001). Here

the Board did not expressly adopt the IJ’s opinion. “We review de novo whether a

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conviction qualifies as an ‘aggravated felony.’” Accardo v. U.S. Atty. Gen., 

, 1335 (11th Cir. 2011).

                                         III

      To assess whether Spaho’s state conviction was an aggravated felony

conviction, the Board first had to decide whether § 893.13(1)(a)(1) is divisible

and thus subject to the modified categorical approach instead of the categorical

approach in comparing the elements of § 893.13(1)(a)(1) with the elements of the

corresponding aggravated felony of “illicit trafficking in a controlled substance.”

See 

.

      A state statute is divisible when it “lists a number of alternative elements

that effectively create several different crimes.” 

.

Conversely, a state statute is indivisible when it contains a single set of elements

that are not set forth in the alternative. Descamps v. United States, 

, 2281 (2013). Such a statute remains indivisible even if it “enumerates

various factual means of committing a single element.” Mathis v. United States,

, 2249 (2016).

      The Supreme Court held in Descamps v. United States that the categorical

approach applies to indivisible statutes, whereas the modified categorical

approach applies to divisible statutes (i.e. statutes that “comprise[] multiple,

alternative versions of a 

.

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      Under the categorical approach, the court examines solely “whether the

state statute defining the crime of conviction categorically fits within the generic

federal definition of a corresponding aggravated felony.” 

(internal quotation marks omitted). The court must “compare the

elements of the statute forming the basis of the defendant’s conviction with the

elements of the ‘generic’ crime,” and conviction under the state statute will only

constitute a conviction for the generic offense “if the statute’s elements are the

same as, or narrower than, those of the generic offense.” 

. If the statute can be violated by an act that does not fit within the generic

offense, then the statute cannot qualify as an aggravated felony under the

categorical approach, and this is true even if the actual conduct of the defendant

fell within the generic crime. See 

modified categorical approach that applies to statutes that are

divisible into alternative crimes, on the other hand, the court may “consult a

limited class of documents, such as indictments and jury instructions, to

determine which alternative formed the basis of the defendant’s prior conviction”

and then “do what the categorical approach demands: compare the elements of

the crime of conviction (including the alternative element used in the case) with

the elements of the generic crime.” 

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      In this case, the Board was correct in upholding the IJ’s determination that

§ 893.13(1)(a)(1) is divisible. In determining divisibility, we focus primarily on

the statutory text. See United States v. Howard, 

, 1346 (11th Cir.

2014). Section 893.13(1)(a) provides in relevant part that “a person may not sell,

manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a

controlled substance.” The text delineates six discrete alternative elements: sale,

delivery, manufacture, possession with intent to sell, possession with intent to

deliver, and possession with intent to manufacture. Accordingly, the statute is

divisible.

      We reject Spaho’s argument that § 893.13(1)(a) contains not a set of

alternative elements but rather a single element that can be satisfied by a series of

alternative means. To determine whether a statute sets forth alternative elements

or means, we take guidance from state court decisions. 

. Here, Florida case law supports our conclusion that the listed items in §

893.13(1)(a) are elements rather than means. In Tyler v. State, the District Court

of Appeal of Florida discussed “clear direction” from the Supreme Court of

Florida “that possession with intent to sell, on the one hand, and the actual sale,

on the other, of the same illicit substance should be viewed, not as alternative

ways in which section 893.13(1)(a) could be violated, but as two separate

crimes.” 

, 549-51 (Fla. Dist. Ct. App. 2013). In State v. McCloud,


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one of the cases referred to in Tyler, the Supreme Court of Florida decided that

possession and sale are separate crimes such that both can be charged in the same

indictment without violating the Double Jeopardy Clause. 

, 940

(Fla. 1991). In Thomas v. State, the District Court of Appeal of Florida clarified

that possession and sale are separate crimes even if both offenses are proscribed

by the same statute and pertain to the same illicit substance. 

, 1158

(Fla. Dist. Ct. App. 2011).

      We also find unpersuasive Spaho’s argument that the divisibility

determination made by the Board in his case conflicts with our holding in

Donawa. To be sure, Donawa applied the categorical approach for indivisible

statutes in finding that a conviction under § 893.13(1)(a)(2) did not qualify as an

aggravated felony under the drug trafficking component of 8 U.S.C. §

. But Donawa dealt with a different and

narrower question than that presented here, which was whether an affirmative

defense defined by Florida Statute § 893.101 (which includes a mens rea element)

renders § 893.13(1)(a)(2) (which does not otherwise include a mens rea element)

divisible by “effectively creat[ing] a separate offense.” 

While

Donawa found the affirmative defense insufficient to render § 893.13(1)(a)(2)

divisible, the case did not engage in a textual analysis of § 893.13(1)(a) to

ascertain its divisibility. Specifically, Donawa did not analyze the actus reus


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element of § 893.13(1)(a) to ascertain whether the separate acts forbidden by the

statute rendered it divisible by establishing multiple, alternative offenses of which

a defendant could be convicted. Indeed, the Court had no reason to engage in that

analysis because the Florida statute’s lower mens rea requirement rendered it

categorically not a “drug trafficking crime.” However, since the “illicit

trafficking” aggravated felony does not have the same heightened mens rea

requirement as drug trafficking crimes, see Matter of L-G-H, 26 I & N Dec. 365,

370 (BIA 2014), 2 we cannot stop where the Donawa Court did. Performing the

appropriate textual analysis here, we agree with the Board that the statute is

divisible with respect to the “act” element and that the modified categorical

approach applies.

       Under the modified categorical approach, Spaho’s conviction constitutes

an “illicit trafficking” aggravated felony. Some of the alternative elements set

forth in § 893.13(1)(a) involve “illicit trafficking” and some do not. An “illicit

trafficking” aggravated felony includes “any state, federal, or qualified foreign

felony conviction involving the unlawful trading or dealing of any controlled

2
  Following Donawa, in Matter of L-G-H, 26 I&N Dec. 365 (BIA 2014), the BIA applied the
modified categorical approach to hold that a conviction for the sale of cocaine under Fla. Stat. §
893.13(1)(a)(1) qualified as an “illicit trafficking” aggravated felony. 

As
relevant here, the BIA held that “’illicit trafficking’ offenses do not require a mens rea element
with respect to knowledge of the illicit nature of the controlled substance, at least when
accompanied, as [in the Florida statute], by an affirmative defense permitting a defendant to
show that he or she had no such awareness, as well as by a requirement that the defendant be
aware of the presence of the substance (apart from its illegality.” 

Spaho does not
challenge the correctness of the BIA’s definition of illicit trafficking, and we express no
opinion on it.
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substance.” Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). “[U]nlawful

trading or dealing” requires commercial conduct. Id.; see Lopez v. Gonzalez, 

, 53 (2006) (“‘[T]rafficking’ means some sort of commercial dealing.”).

Two of the alternative elements of § 893.13(1)(a), sale and possession with intent

to sell, are inherently commercial and qualify under the definition of an illicit

trafficking aggravated felony while the other four alternatives may not be

commercial and may not qualify. 3 Spaho was adjudged guilty of selling a

controlled substance, and therefore his conviction qualifies because the state

provision, when read to include only the sale crime and not the other alternative

crimes, easily falls within the generic “illicit trafficking” offense.

       In sum, we find that the Board properly held that § 893.13(1)(a)(1) was

divisible, applied the modified categorical approach for divisible statutes, and

found Spaho removable under § 237(a)(2)(A)(iii) of the INA as a noncitizen

convicted of an aggravated felony.

       For these reasons, we deny Spaho’s petition for review.

       PETITION DENIED.




3
  As the BIA explained in Matter of L-G-H, under the BIA’s longstanding definition, “illicit
trafficking” requires a “commercial transaction,” or the “passing of goods from one person to
another for money or other consideration.” 365 I & N Dec. at 371-72 & n.9. Because a “sale”
under the Florida law categorically requires consideration, the BIA held that a conviction for
the sale element of § 893.13(1)(a) involved a commercial transaction, and therefore met the
BIA’s definition of illicit trafficking. 

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JORDAN, Circuit Judge, dissenting:

      The question in this case is whether a narcotics conviction for violation of

Fla. Stat. § 893.13(1)(a)(1) is an “aggravated felony” under the INA because it

constitutes “illicit trafficking in a controlled substance (as defined in [21 U.S.C.

§ 802]), including a drug trafficking crime (as defined in [18 U.S.C. § 924(c)]).”

8 U.S.C. § 1101(a)(43)(B). The majority answers that question in the affirmative

in part by blessing the BIA’s use of the so-called “modified categorical” approach.

See Maj. Op. at 8–10.

      With respect, I dissent. In a published opinion issued just three years ago,

we used the “categorical” approach to determine whether a conviction for violation

of § 893.13(1)(a)(2) was an “aggravated felony” under the “drug trafficking crime”

language of § 1101(a)(43)(B) of the INA, while expressly rejecting the

government’s invitation to use the “modified categorical” approach. See Donawa

v. Atty. Gen., 

, 1280–83 (11th Cir. 2013). We are bound by Donawa

to apply the “categorical” approach in deciding whether § 893.13(1)(a)(1)—which

differs from § 893.13(1)(a)(2) only insofar as the type of drug (and penalty)

involved—is an “aggravated felony” under the “illicit trafficking” language of

§ 1101(a)(43)(B) of the INA.




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                                                I

       “When the Government alleges that a state conviction qualifies as an

‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’

to determine whether the state offense is comparable to an offense listed in the

INA. Under this approach we look ‘not to the facts of the particular prior case,’

but instead to whether ‘the state statute defining the crime of conviction’

categorically fits within the ‘generic’ federal definition of a corresponding

aggravated felony.” Moncrieffe v. Holder, 

, 1684 (2013) (citations

omitted). 1

       In Donawa, we held that possession of marijuana with intent to sell or

deliver, in violation of § 893.13(1)(a)(2), was not an “aggravated felony” under

§ 1101(a)(43)(B) of the INA because, as a matter of law, it was not a “drug

trafficking crime” as defined in 18 U.S.C. § 924(c). As we explained, a “person

could be convicted [under the Florida statute] . . . without any knowledge of the

nature of the substance in his possession,” and that made the Florida offense

different than the federal analogue—21 U.S.C. § 841(a)(1)—which “requires that




1
 In contrast, the “modified categorical” approach “applies to ‘state statutes that contain several
different crimes, each described separately.’ In such cases, ‘a court may determine which
particular offense the non-citizen was convicted of by examining the charging document and jury
instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some
comparable judicial record of the factual basis for the plea.’” Mellouli v. Lynch, 

,
1986 n.4 (2015) (citation omitted).
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the defendant had knowledge of the nature of the substance in his 

–82.

      In coming to this conclusion, we used the “categorical” approach described

in Moncrieffe and earlier cases. See 

1282, 1283. And we expressly

rejected the government’s invitation to apply the “modified categorical” approach

because § 893.13(1) was not divisible, i.e., it did not list “a number of alternative

elements that effectively create several different crimes, some of which are

aggravated felonies and some of which are not.” 

We remanded to the

BIA with directions that, if it wished to consider whether a conviction under

§ 893.13(1)(a)(2) was an “aggravated felony” because it was an “illicit trafficking”

offense, it “should apply the categorical approach . . . 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.” 

(citing 

).

      I was a member of the panel in Donawa, and believe that it was correctly

decided, but that is not my point here. The important aspect of Donawa, for our

purposes, is that it applied the “categorical” approach to subsection (a)(2) of

§ 893.13(1), and eschewed application of the “modified categorical” approach

because it concluded that the statute was not divisible. It is difficult for me to

understand how we can now apply the “modified categorical” approach in the face


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of Donawa. If, as we held in Donawa, § 893.13(1) is not divisible, then the

“modified categorical” approach cannot be used here.2

                                              II

       The problem can be traced to Matter of L-G-H, 26 I&N Dec. 365, 

(BIA 2014), which the BIA decided nine months after Donawa. The BIA

in L-G-H cited to and discussed Donawa, but then inexplicably failed to follow its

remand instructions. Instead of applying the “categorical” approach, as Donawa

had instructed, to determine whether a conviction for violation of § 893.13(1)(a)(1)

is an “aggravated felony” because it is an “illicit trafficking” offense under

§ 1101(a)(43)(B), the BIA in L-G-H concluded—contrary to Donawa—that the

Florida statute is divisible and applied the “modified categorical” approach. See L-

G-H, 26 I&N at 371 (“we first find that [§] 893.13(1)(a) is divisible as to the

offenses it prohibits”). In the present case, the BIA followed the rationale of L-G-

H and again applied the “modified categorical” approach. See A.R. at 93–95.

                                              A

       The BIA erred in not following Donawa in L-G-H. First, the BIA has itself

said on various occasions that it is bound by the precedent of the circuit where an

immigration case arises. See, e.g., In re Ponce De Leon-Ruiz, 21 I&N Dec. 154,

2
 I acknowledge that, with respect to other subsections of § 1101(a)(43), sometimes it is not
appropriate to apply the “categorical” approach to determine whether a state conviction
constitutes an “aggravated felony.” See, e.g., Nijhawan v. Holder, 

, 35–40 (2009)
(addressing § 1101(a)(43)(M)(i)).
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159 (BIA 1996) (en banc); In re Zorilla-Vidal, 24 I&N 768, 769 (BIA 2009).

Second, the BIA did not even attempt to explain why it was justified in rejecting

Donawa and holding—contrary to Donawa—that § 893.13(1) is divisible.

      Before the immigration judge and the BIA, Mr. Spaho expressly relied on

Donawa and challenged the rationale and holding of L-G-H. See, e.g., A.R. at 59–

60, 86–87. And in his brief to us, Mr. Spaho has again asserted that L-G-H was

wrongly decided and argued that we must use the “categorical” approach, as

Donawa instructed. See Br. for Petitioner at 14–19. Given Mr. Spaho’s

arguments, I do not see how we can fail to confront, head-on, whether L-G-H

should be abrogated.

                                          B

      Under our prior panel precedent rule, it is irrelevant to us whether Donawa

is correct, or whether the panel in Donawa actually considered all possible issues,

theories, and arguments. See Cohen v. Office Depot, 

, 1076 (11th

Cir. 2000) (en banc) (explaining that the prior panel precedent rule is not

dependent on “a subsequent panel’s appraisal of the initial decision’s

correctness”); Tippit v. Reliance Standard Life, 

, 1234 (11th Cir.

2006) (“a prior panel precedent cannot be circumvented or ignored on the basis of

arguments not made to or considered by the prior panel”). What matters to us is




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what Donawa decided. I would hold that the “categorical” approach used by

Donawa governs here, and that the BIA’s decision in L-G-H should be abrogated.

                                          C

      Unlike my colleagues, I do not believe that Donawa can be distinguished on

the ground articulated in the majority opinion. Donawa itself considered the effect

of the affirmative defense of lack of knowledge, and yet still applied the

“categorical” approach. So the affirmative defense theory does not allow us to

sidestep Donawa. Compare Maj. Op. at 9-10 with 

–83.

      My colleagues also say Donawa “did not engage in a textual analysis of

§ 893.13(1)(a)(1) to ascertain its divisibility.” Maj. Op. at 9. That observation,

even if technically true, does not matter because § 893.13(1)(a)(2) and §

893.13(1)(a)(1) are the same except insofar as they reference different types of

drugs (and their respective penalties).

      I recognize that in this case we are addressing the “illicit trafficking”

language of § 1101(a)(43)(B), and that Donawa addressed “drug trafficking,”

which is a subset of “illicit trafficking.” But in both cases we are looking at the

same Florida statute, § 893.13(1), and under Donawa we (and the BIA) must apply

the “categorical” approach to determine whether a violation of that statute

constitutes “illicit trafficking” under the INA. Stated differently, the question of

what approach to use is antecedent to the question of whether a state conviction


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ultimately qualifies as an “aggravated felony” of one kind or another. See

.3

       I express no view on whether, using the “categorical” approach, a conviction

under § 893.13(1)(a)(1) is an “illicit trafficking” crime. That is a matter for the

BIA to decide in the first instance, and I would remand to the BIA with

instructions to perform the appropriate analysis.

                                              III

       Donawa rejected the argument that § 893.13(1) is divisible, and therefore

declined to use the “modified categorical” approach. Due to the majority’s opinion

today, we now have published precedent applying the “categorical” approach (and

expressly rejecting the “modified categorical” approach) with respect to

§ 893.13(1)(a)(2) and the “drug trafficking” language of § 1101(a)(43)(B), as well

as published precedent applying the “modified categorical” approach with respect

to § 893.13(1)(a)(1) and the “illicit trafficking” language of § 1101(a)(43)(B). If

there is a way to slice a strand of hair so thinly, I do not see it.




3
  The Fifth Circuit, in a case decided after Donawa, initially characterized § 893.13(1) as
divisible but then used the “categorical” approach of Donawa and held that § 893.13(1)(a)(1)—
the very provision at issue here—is not a “drug trafficking crime” constituting an “aggravated
felony” under the INA. See Sarmientos v. Holder, 

, 629–31 (5th Cir. 2014).
Although Sarmientos is not on “all fours,” it is a bit odd to have a Fifth Circuit panel follow
Donawa and its “categorical” approach as to § 893.13(1)(a)(1) while seeing an Eleventh Circuit
panel do the opposite.


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