Lannie Gordon (“Gordon”) is a citizen of Guayana and a lawful permanent resident of the U.S. since 1985. On October 23, 2014, Gordon pled guilty to two counts of sale or delivery of cannabis. On January 22, 2015, Gordon was sentenced to two years of State probation. Afterward, Gordon was served by the Department of Homeland Security with a Notice to Appear in removal proceedings. The immigration judge found Gordon removable because Gordon’s convictions constituted illicit trafficking under Florida Statute. Gordon then appealed to the Board of Immigration Appeals (“The Board”), which dismissed the case and sided with the immigration judge. The Board used the modified categorical approach to reach their decision and agreed with the immigration judge because the conviction for selling or delivery of cannabis for ‘monetary consideration’ qualified as illicit trafficking convictions.
Gordon appealed to the U.S. Court of Appeals for the Eleventh Circuit and argued that the Board misapplied the modified categorical approach and cannot therefore find him removable as an aggravated felon. In order to use the modified categorical approach, the Court must first decide whether the conviction is divisible so that it is subject to the modified categorical approach. A statute is divisible when it lists a number of alternative elements that effectively create different crimes. For example, in U.S. v. Howard, 742 F.3d 1334, 1346 (11th Cir. 2014), the statute in question stated that a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. This statute defines six alternatives: sale, delivery, manufacture, possession with intent to sell, possession with intent to deliver, and possession with intent to manufacture.
Next, a modified categorical approach applies to statutes that are divisible into alternative crimes and 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. Afterward, the Court compares the elements of the state crime of conviction with the elements of the generic, or federal definition of a corresponding aggravated felony.
In Gordon’s case, the Board found the statute Gordon was convicted under to be divisible and so applied the modified categorical approach, which allows for certain documents to be used to determine the alternatives. Yet, in Gordon’s case, those documents did not disclose whether Gordon was convicted for violating the element of sale or the element of delivery. As a result, the Board then should have presumed the conviction rested on the lesser of the acts, according to case law Mellouli v. Lynch, 135 S. Ct. 1980, 1986, 192 L. Ed. 2d 60 (2015), and presumed Gordon’s conviction was for delivery, which is not an aggravated felony. Since the Board’s conclusion was that Gordon’s crime was an aggravated felony because the sale or delivery was for monetary consideration their argument fails because delivery, the lesser of the acts, has no monetary consideration. Therefore, the Board did not accurately determine that Gordon was convicted of an aggravated felony and the Eleventh Circuit granted Gordon’s petition and rejected the Board’s conclusion of removability.
The case if Gordon v. U.S. Atty. Gen. To read the case click on this link.