William Goulbourne v. U.S. Attorney General

USCA11 Case: 21-14505 Date Filed: 10/18/2022 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14505

Non-Argument Calendar

____________________

WILLIAM GOULBOURNE,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A029-839-853

____________________

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2 Opinion of the Court 21-14505

Before WILSON, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:

William Goulbourne, a lawful permanent resident and citi-

zen of Jamaica, petitions for review of the immigration judge’s

(“IJ”) and Board of Immigration Appeals’ (“BIA”) denials of his ap-

plication for cancellation of removal.

I

Goulbourne was convicted of possession with intent to dis-

tribute 3, 4-methylenedioxymethamphetamine (MDMA) under

the Georgia Controlled Substance Act, Ga. Code Ann. § 16-13-

30(b); id. § 16-13-25(3)(Z) (listing MDMA under Schedule I con-

trolled substances). “The [INA] allows the government to deport

noncitizens who are convicted of certain crimes while in the United

States, including drug offenses.” Donawa v. U.S. Att’y Gen., 735

F.3d 1275, 1278–79 (11th Cir. 2013) (citing 8 U.S.C. § 1227(a)). “Or-

dinarily, a deportable noncitizen may ask the Attorney General for

discretionary relief from removal. But if that noncitizen has been

convicted of an aggravated felony, he is not only deportable; he is

also ineligible for any discretionary relief.” Id. at 1279 (citations

omitted); Immigration and Nationality Act (INA)

§ 237(a)(2)(A)(iii); 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C.

§ 1229b(a)(3). 1 The term “aggravated felony” includes a conviction

1 The INA also defines the term “aggravated felony” to include “illicit traffick-

ing in a controlled substance . . . including a drug trafficking crime (as defined

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21-14505 Opinion of the Court 3

for a “drug trafficking” crime, which is defined as any felony pun-

ishable under the federal Controlled Substances Act (CSA). INA

§ 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). A

state offense qualifies as a federal aggravated felony only if it pro-

scribes conduct punishable as a felony under federal law. Lopez v.

Gonzalez, 549 U.S. 47, 55–60 (2006).

Courts analyzing whether a conviction under a state statute

qualifies as an aggravated felony apply a categorical or modified

categorial approach, depending on the statutory scheme. See

Donawa, 735 F.3d at 1280. Using the categorical approach, a court

may examine only the statutory elements of the state and federal

crimes to determine whether the state crime “categorically fits

within the generic federal definition of a corresponding aggravated

felony.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal

quotations omitted). But courts should also consider whether the

state statute is “divisible,” or whether it “lists a number of alterna-

tive elements that effectively create several different crimes.” Guil-

len v. U.S. Att’y Gen., 910 F.3d 1174, 1180 (11th Cir. 2018) (quoting

Donawa, 735 F.3d at 1281). If the statute is divisible, then the court

may apply the modified categorical approach. Under this analysis,

in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). If Goulbourne’s drug

conviction did not constitute a “drug trafficking crime,” we could consider

whether the conviction fell into the broader category of “illicit trafficking in a

controlled substance.” See Donawa, 735 F.3d at 1280. Goulbourne argued be-

low, and reiterates now, that it did not. Because we conclude that

Goulbourne’s conviction is a drug-trafficking crime, we need not consider

whether it falls into the wider category of “illicit trafficking.”

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a court determines whether the individual defendant committed

one of those subdivided crimes, and whether one of those crimes

is sufficiently analogous to a federal aggravated felony. Id. at 1179.

To do so, the reviewing court may look to so-called “Shepard doc-

uments”—a small set of documents including the plea agreement,

plea colloquy, charging document, jury instructions, and “compa-

rable judicial record[s] of this information”—to determine the ele-

ments of the individual defendant’s divisible offense within the

broader state statute. Id. at 1182; see Shepard v. United States, 544

U.S. 13, 26 (2005).

In this case, the Department of Homeland Security (DHS)

initiated removal proceedings against Goulbourne because he was

a noncitizen convicted of a state drug offense. DHS thought the

offense qualified as a federal aggravated felony, preventing it from

granting him discretionary relief from removal. Before the IJ,

Goulbourne argued that he qualified for cancellation of removal

because his prior conviction for possession with intent to distribute

MDMA under Ga. Code § 16-13-30 did not qualify as a drug-traf-

ficking offense under the categorical approach.

The IJ found that Ga. Code § 16-13-30 was divisible with re-

spect to the identity of the controlled substance, so the IJ applied

the modified categorical approach instead of the traditional cate-

gorical approach. The IJ then found that Goulbourne’s state con-

viction for MDMA possession under § 16-13-30(b) was sufficiently

analogous to MDMA possession in the federal CSA, 21 U.S.C.

§ 841(a)(1); 21 C.F.R. § 1308.11(d)(11). Accordingly, the IJ

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21-14505 Opinion of the Court 5

concluded that Goulbourne’s conviction qualified as both a drug-

trafficking crime and an aggravated felony under § 1101(a)(43)(B),

rendering him ineligible for discretionary relief from removal. The

BIA adopted and affirmed the decision of the IJ, noting that this

Circuit has held that Ga. Code § 16-13-30(b) was a divisible statute

with respect to MDMA. See Gordon v. U.S. Att’y Gen., 962 F.3d

1344, 1348–49 (11th Cir. 2020). Goulbourne timely filed a petition

for review.

In the petition, Goulbourne argues that the IJ and BIA erred

by applying the modified categorical approach to Ga. Code § 16-13-

30(b). If they had properly applied the categorical approach, he

says, then his state conviction would not qualify as a federal drug-

trafficking crime because the state statute is broader than the fed-

eral CSA. Specifically, he argues that § 16-13-30(b) lacks a

knowledge or intent mens rea and, therefore, that its elements do

not categorically match those of the federal statute. Though this

Court has held that § 16-13-30(b) is divisible and the modified cate-

gorical approach applies to convictions thereunder, see Gordon,

962 F.3d at 1348–49, Goulbourne argues that Gordon does not ap-

ply to his case. He insists that because Gordon analyzed whether

the identity of a certain controlled substance under Georgia law

qualified as a controlled substance under federal law, the reasoning

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6 Opinion of the Court 21-14505

does not apply to his case, where the critical issue is whether the

elements of both statutes are categorically the same. 2

II

This Court has jurisdiction to review a final administrative

order of the BIA under 8 U.S.C. § 1252(a)(2)(D). We review legal

questions, such as whether a conviction qualifies as an aggravated

felony, de novo. Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1311 (11th

Cir. 2020); Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1176 (11th Cir.

2016). When the BIA issues a decision expressly adopting the IJ’s

decision, we review both decisions. Rodriguez v. U.S. Att’y Gen.,

735 F.3d 1302, 1308 (11th Cir. 2013). We may affirm on any ground

supported by the record. United States v. Gibbs, 917 F.3d 1289,

1293 n.1 (11th Cir. 2019).

2 A petitioner may not raise an issue for the first time in a reply brief. See

United States v. Chalker, 966 F.3d 1177, 1195 n.8 (11th Cir. 2020); Sapuppo v.

Allstate Floridian Ins., 739 F.3d 678, 683 (11th Cir. 2014). Goulbourne raised

his argument distinguishing Gordon for the first time in his reply. His opening

brief cited Gordon only in passing and failed to acknowledge its holding ap-

plying the modified categorical approach to the specific Georgia statute at is-

sue in this case. Even so, we will consider his Gordon argument because he

has adequately raised the issue whether the modified categorical approach was

properly applied in this case, and we may consider any available argument in

support of that issue. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 91

(1991) (“[O]nce an issue or claim is properly before a court, the court is not

limited to the particular legal theories advanced by the parties but retains the

independent power to identify and apply the proper construction of governing

law.”).

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21-14505 Opinion of the Court 7

III

The Georgia CSA, in relevant part, prohibits a person from

manufacturing, delivering, distributing, dispensing, administering,

selling, or possessing with intent to distribute any controlled sub-

stance. Ga. Code Ann. § 16-13-30(b). The statute encompasses

some substances not included on the schedules accompanying the

federal CSA, so not all convictions under it categorically constitute

aggravated felonies involving drug trafficking crimes. See Gordon,

962 F.3d at 1348 (“The parties agree that § 16-13-30 encompasses

substances that are not included on the schedules to the CSA; there-

fore, not all convictions under the Georgia statute categorically

constitute aggravated felonies involving drug trafficking crimes.”);

see also Descamps v. United States, 570 U.S. 254, 261 (2013).

Goulbourne is correct that under the traditional categorical ap-

proach a reviewing court would not find that the state conviction

categorically matched the federal aggravated-felony definition.

But in Gordon, we held that Ga. Code § 16-13-30 is divisible

because the state could charge and convict a defendant in separate

counts for simultaneous possession of different controlled sub-

stances. Gordon, 962 F.3d at 1349. 3 Our prior-panel-precedent rule

3 We followed circuit precedent that looks to state case law to determine di-

visibility if the face of the statute does not provide a clear answer. See Gordon,

962 F.3d at 1349; Guillen, 910 F.3d at 1179–84. The Georgia Supreme Court

has expressly rejected the contention that the illegal possession of several con-

trolled substances amounts to a single offense, implying that the “elements of

possession [of several controlled substances] are different” and that the “iden-

tity of the substance possessed is an element of possession.” Gordon, 962 F.3d

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establishes that a prior panel’s holding is binding unless it has been

overruled or abrogated by the Supreme Court or by this Circuit

sitting en banc. See United States v. Steele, 147 F.3d 1316, 1317–18

(11th Cir. 1998) (en banc). So we cannot accept Goulbourne’s con-

tention that the traditional categorical approach applies to this stat-

ute. 4

We also must reject Goulbourne’s argument that Gordon

does not apply to this case. He insists that Gordon never evaluated

whether the elements of Ga. Code § 16-13-30 are analogous to the

federal CSA, only whether the identity of MDMA in the federal

CSA matched ecstasy in the Georgia statute. Cf. Gordon, 962 F.3d

at 1349–51. If we were to properly analyze whether the elements

matched, he argues, we would find that they do not because the

state statute does not contain a mens rea requirement while the

federal statute does.

We disagree for two reasons. First, Goulbourne’s position

is foreclosed by our decision in Gordon. We held there that a

at 1349 (quoting Guillen, 910 F.3d at 1182). Therefore, we held that the statute

was divisible and that the modified categorical approach applied. Id.

4For this reason, Goulbourne’s appeals to Donawa, 735 F.3d at 1275, are in-

apposite. In that case, we held that the Florida Controlled Substance Act was

broader than the federal CSA based on their respective mens rea requirements,

and thus that a Florida drug conviction did not qualify as a drug-trafficking

offense under the federal CSA. Id. at 1281–82. But Gordon clearly controls

our interpretation of the Georgia CSA. And it cannot be superseded by

Goulbourne’s invocation of an unpublished opinion in Jones v. U.S. Att’y

Gen., 742 F. App’x 491 (11th Cir. 2018).

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21-14505 Opinion of the Court 9

conviction under Ga. Code § 16-13-30 qualifies as a felony under

the federal CSA and as an aggravated felony for cancellation of re-

moval ineligibility. Gordon, 962 F.3d at 1351. Second, even if we

could depart from Gordon’s holding, Goulbourne would be wrong

on the merits. Goulbourne contends that the absence of a mens

rea requirement in the Georgia statute makes it broader than the

federal CSA, which requires proof of knowledge or intent. 21

U.S.C. § 841(a)–(a)(1). 5 But Georgia state courts have held that alt-

hough § 16-13-30(b) offenses do not include an express mens rea

requirement, they are not strict liability crimes; the criminal intent

required to violate that section is the intent to possess, sell, or dis-

tribute a drug with knowledge of the chemical identity of the drug.

Awtrey v. State, 815 S.E.2d 655, 660–61 (Ga. Ct. App. 2018) (citing

Duvall v. State, 712 S.E.2d 850, 851 (Ga. 2011)). A Georgia state

appellate court even reversed a conviction under § 16-13-30(b)

when the “State failed to establish” the knowledge element. See

Mohamed v. State, 723 S.E.2d 694, 697 & n.13 (Ga. Ct. App. 2012).

Further, Goulbourne misinterprets the federal CSA mens rea re-

quirement; he insists that it requires both “knowledge of the illicit

nature of the offense” as well as knowledge about the identity of

the controlled substance, and thus does not match the state statu-

tory elements. But this Circuit has held that the federal CSA mens

5 We construe his argument broadly to address whether the crimes are analo-

gous under the modified categorical approach, even though he contends that

the state and federal crimes do not match under the categorical approach that

we have already established does not apply.

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10 Opinion of the Court 21-14505

rea requires only knowledge of the identity of the substance, not

knowledge of the law. See United States v. Tobin, 676 F.3d 1264,

1279–80 & n.6 (11th Cir. 2012) (“[A] sincere belief that [a defend-

ant’s] distribution of controlled substances was in conformity with

the law would be ‘irrelevant’ to the distribution counts . . . .”); see

also Bryan v. United States, 524 U.S. 184, 192 (1998) (“[T]he

knowledge requisite to knowing violation of a statute is factual

knowledge as distinguished from knowledge of the law.”) (quoting

Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 345 (1952)

(Jackson, J., dissenting)). The mens rea element therefore matches

between the two statutes.

Finally, we reject Goulbourne’s argument that a court may

not look to state law to determine whether the identity of a sub-

stance in a state conviction fits within the federal generic-crime def-

inition. Again, Gordon already established that this is the proper

analytic method. Gordon, 962 F.3d at 1350. And Goulbourne’s

argument also rests on an incorrect understanding of the categori-

cal approach. He asserts that looking to state law to determine the

identity of a substance is a question of fact for a jury, implying that

the practice violates Alleyne’s holding requiring issues of fact to be

determined by a jury. Alleyne v. United States, 570 U.S. 99, 103

(2013). But issues of fact submitted to a jury and found beyond a

reasonable doubt constitute elements of the crime that are suscep-

tible to examination under the modified categorical approach; in-

deed, looking to state law is required under the categorical ap-

proach. See Mathis v. United States, 579 U.S. 500, 513 (2016)

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(distinguishing between finding facts and determining elements

under the modified categorical approach and observing that “[t]he

only [use of that approach] we have ever allowed . . . is to deter-

mine which elements played a part in the defendant’s conviction”)

(cleaned up); Bourtzakis v. U.S. Att’y Gen., 940 F.3d 616, 622 (11th

Cir. 2019) (“Because the conduct a state statute proscribes ‘is a

question of [state] law,’ we ‘look to the state’s courts to answer this

question.’”) (quoting United States v. Lockett, 810 F.3d 1262, 1270

(11th Cir. 2016)).

In sum, Gordon held that a violation of Ga. Code § 16-13-30

qualifies as a felony under the federal CSA and an aggravated felony

for a drug-trafficking crime under the INA. Gordon, 962 F.3d at

1351. We also concluded that MDMA, in particular, is a controlled

substance under both the federal CSA and Georgia CSA. Id. at 1350

(“We agree that Georgia case law indicates that Georgia courts re-

fer to MDMA as ecstasy.”). Because the modified categorical ap-

proach applied, the IJ and BIA were allowed to consider

Goulbourne’s Shepard documents to determine that he was con-

victed specifically of MDMA possession with intent to distribute.

See Guillen, 910 F.3d at 1180.

Because we must follow Gordon, and because the IJ and BIA

properly did so, Goulbourne is ineligible for cancellation of re-

moval. 8 U.S.C. § 1229b(a)(3). We deny Goulbourne’s petition.

PETITION DENIED.