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Interim Decision #3593

In re Jharfvan Jose THOMAS, Respondent

File 44 134 844 - Miami

Decided December 13, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The respondent’s 2003 Florida offense involving the simple possession of marijuana does

not qualify as an “aggravated felony” by virtue of its correspondence to the Federal felony

of “recidivist possession,” even though it was committed after a prior “conviction” for a

“drug, narcotic, or chemical offense” became “final” within the meaning of 21 U.S.C.

§ 844(a) (2000), because the respondent’s conviction for that 2003 offense did not arise from

a State proceeding in which his status as a recidivist drug offender was either admitted or

determined by a judge or jury. Matter of Carachuri-Rosendo, 24 I&N Dec. 382 (BIA 2007),

followed.

FOR RESPONDENT: Jose Debs-Elias, Esquire, Jacksonville, Florida

FOR THE DEPARTMENT OF HOMELAND SECURITY:

Assistant Chief Counsel

Michael A. Mansfield,

BEFORE: Board Panel: OSUNA, Acting Chairman; and FILPPU, Board Member.

Concurring and Dissenting Opinion: PAULEY, Board Member.

FILPPU, Board Member:

The respondent appeals from an Immigration Judge’s September 5, 2007,

decision pretermitting his application for cancellation of removal under

section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)

(2000), and ordering him removed from the United States as an alien convicted

of an aggravated felony and a controlled substance violation under sections

237(a)(2)(A)(iii) and (B)(i) of the Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii) and

(B)(i) (2000), respectively. The Department of Homeland Security (“DHS”)

opposes the appeal. The appeal will be sustained in part and the record will be

remanded to the Immigration Judge for further proceedings.

I. BACKGROUND

The respondent is a native and citizen of Jamaica and a lawful permanent

resident of the United States. On July 8, 2002, the respondent pled guilty in

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the Circuit Court for Duval County, Florida, to possessing cocaine in violation

of section 893.13(6)(a) of the Florida Statutes. Upon entry of the respondent’s

plea, the sentencing judge withheld adjudication of his guilt and placed him on

probation for 60 days. On August 28, 2003, the respondent appeared once

again before the Duval County Circuit Court and entered a plea of

nolo contendere to a charge that he possessed less than 20 grams of marijuana

in violation of section 893.13(6)(b) of the Florida Statutes, based on an offense

committed that same day. The trial court adjudged him guilty of that offense

and ordered him to pay fines.

On the basis of the aforementioned convictions, the Immigration Judge

determined that the respondent was deportable as charged and ineligible for

cancellation of removal because he failed to demonstrate that he “has not been

convicted of any aggravated felony,” as required by section 240A(a)(3) of the

Act. Specifically, the Immigration Judge determined that the respondent’s

2003 conviction for marijuana possession was an “aggravated felony”

conviction under section 101(a)(43)(B) of the Act, 8 U.S.C. § 1101(a)(43)(B)

(2000), because it was predicated on an offense that was committed after his

prior “conviction” for cocaine possession had become final, thereby qualifying

it as a State-law counterpart to the Federal felony offense of “recidivist

possession” defined at 21 U.S.C. § 844(a) (2000).

On appeal, the respondent challenges the Immigration Judge’s determination

that he stands convicted of an aggravated felony.1 In particular, the respondent

invokes our precedent decision in Matter of Manrique, 21 I&N Dec. 58 (BIA

1995), and argues that his 2002 conviction does not constitute a valid factual

predicate for an aggravated felony determination because it was expunged

pursuant to a State rehabilitative procedure akin to that prescribed by the

Federal First Offender Act. The DHS opposes the appeal and urges us to

affirm the Immigration Judge’s decision without separate opinion.

II. ISSUE

The issue on appeal is whether the respondent’s 2003 Florida offense of

marijuana possession qualifies as an “aggravated felony” by virtue of its

correspondence to the Federal felony offense of “recidivist possession.”

III. ANALYSIS

Section 101(a)(43) of the Act defines the term “aggravated felony” to include

a “drug trafficking crime” under 18 U.S.C. § 924(c) (2000), “whether in

1

The respondent’s motion to accept his late-filed brief is granted in the exercise of

discretion.

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violation of Federal or State law.” In turn, 18 U.S.C. § 924(c)(2) defines “drug

trafficking crime” to mean “any felony punishable under the Controlled

Substances Act (21 U.S.C. § 801 et seq.).” The United States Supreme Court

recently interpreted this statutory language and held that “a state offense

constitutes a ‘felony punishable under the Controlled Substances Act’ only if

it proscribes conduct punishable as a felony under that federal law.” Lopez

v. Gonzales, 127 S. Ct. 625, 633 (2006). Thus, for a State drug offense to

qualify as a “drug trafficking crime” and, by extension, an “aggravated

felony,” it must correspond to an offense that carries a maximum term of

imprisonment exceeding 1 year under the Controlled Substances Act (“CSA”).

Id. at 631 & n.7.

The respondent entered pleas on two separate occasions to State-law offenses

involving the simple possession of controlled substances. Although simple

possession offenses typically proscribe conduct punishable as a Federal

misdemeanor, the Supreme Court acknowledged in Lopez v. Gonzales, supra,

that “[t]hose state possession crimes that correspond to felony violations of

[the CSA], such as . . . recidivist possession, clearly fall within the [aggravated

felony definition].” Id. at 630 n.6 (emphasis added) (citation omitted). The

Federal offense of “recidivist possession” is defined, in pertinent part, at

21 U.S.C. § 844(a):

It shall be unlawful for any person knowingly or intentionally to possess a controlled

substance . . . . Any person who . . . commits such offense after . . . a prior conviction

for any drug, narcotic, or chemical offense chargeable under the law of any State, has

become final, shall be sentenced to a term of imprisonment for . . . not more than

2 years . . . .

The respondent’s 2003 Florida marijuana possession offense arguably

possesses many characteristics of a Federal “recidivist possession” felony.

Like 21 U.S.C. § 844(a), Florida law requires proof beyond a reasonable doubt

that possession of a controlled substance was “knowing,” Garcia v. State,

901 So. 2d 788, 793 (Fla. 2005), and both the CSA and Florida law define

the concept of “possession” to encompass both actual and constructive

possession. Compare United States v. Cooper, 203 F.3d 1279, 1286 (11th Cir.

2000), with Lester v. State, 891 So. 2d 1219, 1220-21 (Fla. Dist. Ct. App.

2005). Moreover, in July 2002 the respondent was sentenced to probation

after entering a guilty plea to a charge of cocaine possession, a “drug, narcotic

or chemical offense” under 21 U.S.C. § 844(c).2 And the respondent’s

2

A “drug, narcotic or chemical offense” includes “any offense which proscribes the

possession . . . [of] any substance the possession of which is prohibited under this

subchapter.” 21 U.S.C. § 844(c). Cocaine, the substance at issue in the respondent’s 2002

(continued...)

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subsequent marijuana possession offense was committed in August 2003, long

after the July 2002 judgment imposing probation became “final” by virtue of

the expiration of the 30-day appeal period prescribed by Florida’s Rules of

Appellate Procedure. Fla. R. App. P. Rule 9.140(b)(3); see also United States

v. Brazel, 102 F.3d 1120, 1163 (11th Cir. 1997) (holding that a prior

conviction is “final” for purposes of the CSA’s recidivism provisions when all

avenues of direct appellate attack have been exhausted (citing United States

v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982))).3

Finally, although the trial court withheld adjudication of the respondent’s

guilt in connection with his 2002 cocaine possession offense and placed him

on probation, the United States Court of Appeals for the Eleventh Circuit–in

whose jurisdiction this proceeding arises–holds that a plea to a felony drug

charge under Florida law constitutes a valid prior “conviction” for purposes of

the CSA’s recidivism provisions, even if the trial court withheld adjudication

of guilt. United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995). The

Immigration Judge determined that the respondent’s 2002 conviction had

never been set aside, but the respondent claims on appeal that the conviction

was, in fact, expunged upon his successful completion of probation.4 We are

unaware of any controlling Eleventh Circuit precedent on the question whether

a conviction that has been expunged for rehabilitative purposes qualifies as a

valid prior conviction under the CSA. However, every other Federal court of

appeals to have addressed the question has concluded that a withheld or

deferred adjudication remains a valid prior conviction under the CSA’s

(...continued)

prosecution, is such a “substance the possession of which is prohibited under [21 U.S.C.

§ 844(a)].” See 21 U.S.C. § 812, Schedule II(a)(4) (2000) (listing “cocaine” as a “Schedule

II” controlled substance).

3

Under Florida law, a criminal judgment imposing probation is appealable, whether or not

the sentencing court withheld adjudication of guilt. Fla. R. App. P. Rule 9.140(b)(1)(C).

4

The respondent contends that the 2002 conviction has therefore been vitiated for

immigration purposes pursuant to Matter of Manrique, supra. It is well settled, however,

that Matter of Manrique, supra, was superseded by Congress’s enactment of a statutory

definition for the term “conviction,” set forth at section 101(a)(48)(A) of the Act.

Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1268-72 (11th Cir. 2004); Matter of

Salazar, 23 I&N Dec. 223, 225 (BIA 2002). Thus, even if expunged, the respondent’s 2002

conviction constitutes a valid factual predicate for the section 237(a)(2)(B)(i) charge in its

own right. With respect to the aggravated felony determination, moreover, the relevant

question is not whether the respondent’s 2002 conviction is effective for immigration

purposes, but rather whether it constitutes a valid prior conviction under the CSA’s

recidivism provisions, such that it transforms his subsequent marijuana possession offense

into the counterpart of a Federal felony.

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recidivism provisions even if the underlying prosecution or conviction was

expunged pursuant to a State’s rehabilitative procedures. See United States

v. Norbury, 492 F.3d 1012, 1014-15 (9th Cir. 2007); United States v. Miller,

434 F.3d 820, 824 (6th Cir. 2006); United States v. Graham, 315 F.3d 777,

783 (7th Cir. 2003); United States v. Cisneros, 112 F.3d 1272, 1280-81 (5th

Cir. 1997); United States v. Meraz, 998 F.2d 182, 184-85 & n.2 (3d Cir.

1993).5 These circuit court decisions are consistent with, and to a large extent

derived from, the Supreme Court’s decision in Dickerson v. New Banner

Institute, Inc., 460 U.S. 103 (1983), in which the Court held that Federal

firearms disabilities applied with respect to any person who pled guilty to a

State offense punishable by imprisonment for more than 1 year, even if the

record of the State criminal proceeding was subsequently expunged following

a successfully served term of probation. Id. at 115 (holding that “expunction

under state law does not alter the historical fact of the conviction, . . . does not

alter the legality of the previous conviction[,] and does not signify that the

defendant was innocent of the crime to which he pleaded guilty”).6 Thus, even

if we assume for purposes of appeal that the respondent’s 2002 cocaine

possession conviction was expunged as he contends, it does not appear that

such an expunction would preclude the conviction from qualifying as a

valid prior conviction under the CSA.

The foregoing facts appear to reflect that the respondent could have sustained

a “recidivist possession” conviction had he been prosecuted federally.

Nevertheless, we conclude that he has not been convicted of an

aggravated felony because his 2003 marijuana possession offense did not

5

We emphasize that a conviction that is dismissed or expunged for rehabilitative purposes

is fundamentally different from one that has been vacated on the merits. A conviction that

has been reversed on direct appeal, or vacated based on a determination of trial error or

actual innocence, cannot be used as a factual predicate for a recidivist enhancement under

the CSA because such a vacatur affects the “underlying lawfulness” of the original judgment.

United States v. Norbury, supra, at 1015; see also United States v. Cousins, 455 F.3d 1116,

1127 (10th Cir.) (holding that a State drug conviction was entered in violation of the

defendant’s Sixth Amendment right to counsel and therefore could not be used as a basis for

a recidivist enhancement under the CSA), cert. denied, 127 S. Ct. 162 (2006).

6

The particular Federal statutes construed by the Dickerson Court were later amended to

exclude expunged convictions and to provide that the existence of a prior “conviction”

depended on State rather than Federal law. See Firearms Owners Protection Act, Pub. L. No.

99-308, § 101(5), 100 Stat. 449, 449-50 (1986) (amending 18 U.S.C. § 921(a)(20)).

However, the Federal courts of appeals–including the Eleventh Circuit–continue to apply the

rationale of Dickerson in the CSA context. See United States v. Smith, 96 F.3d 1350, 1351

(11th Cir. 1996) (per curiam); United States v. Mejias, supra, at 403-04; see also United

States v. Norbury, supra, at 1014-15; United States v. Miller, supra, at 824.

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proscribe conduct punishable as a felony under the CSA. In Matter of

Carachuri-Rosendo, 24 I&N Dec. 382, 393-94 (BIA 2007), we held that

whether a State drug offense constitutes an “aggravated felony” by virtue of

its correspondence to the Federal felony of “recidivist possession” is a criminal

law question that must be determined in accordance with the decisional

authority of the Supreme Court and the relevant Federal circuit court of

appeals, where such authority exists. We also indicated, however, that in

removal proceedings arising in circuits that have not yet had occasion to

announce any binding precedent on the “recidivist possession” issue, we

would not treat an alien’s State conviction for simple possession of a

controlled substance as an aggravated felony on the basis of recidivism unless

the alien’s status as a recidivist drug offender was either admitted by the alien

or determined by a judge or jury in connection with his prosecution for that

simple possession offense. Id. at 391, 394. The present appeal is controlled

by Matter of Carachuri-Rosendo, supra.

The Eleventh Circuit has not yet issued any precedent decision with respect

to the “recidivist possession” issue, and therefore we must resolve the question

independently, keeping in mind that our resolution is provisional and not

entitled to deference by the Eleventh Circuit. As noted previously, Matter of

Carachuri-Rosendo, supra, at 391, 394, provides that a State simple

possession offense will not be considered an aggravated felony on the basis of

recidivism, even if committed after a prior conviction for a “drug, narcotic or

chemical offense” has become final, absent proof that the conviction alleged

to be an aggravated felony resulted from a State proceeding in which the

respondent’s status as a recidivist drug offender was either admitted or

determined by a court or jury. The administrative record in the present case

contains a transcript of the respondent’s trial and sentencing for his August

2003 marijuana possession offense, and this transcript contains no indicia that

the trial judge subjected the respondent to increased punishment based on a

determination that he was a recidivist drug offender. Indeed, the record does

not reflect that the trial judge was even aware of the respondent’s earlier

conviction for cocaine possession when he imposed sentence for the

subsequent marijuana possession offense. And in any event, it is not clear that

Florida law provides any recidivist enhancement mechanism for such simple

possession offenses. See Coleman v. State, 927 So. 2d 1048 (Fla. Dist. Ct.

App. 2006) (holding that section 775.084(1)(a)(3) of the Florida Statutes

precludes habitual felony offender sentencing on the basis of drug possession

offenses (citing Virgil v. State, 884 So. 2d 373, 373-74 (Fla. Dist. Ct. App.

2004))). Thus, because the respondent’s marijuana possession conviction did

not result from a State proceeding in which his status as a recidivist drug

offender was either admitted or determined by a judge or jury, Matter of

Carachuri-Rosendo, supra, dictates that it does not qualify as a conviction for

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a “drug trafficking crime” under 18 U.S.C. § 924(c)(2) or an “aggravated

felony” under section 101(a)(43)(B) of the Act, absent controlling precedent

to the contrary.

IV. CONCLUSION

The Eleventh Circuit has not yet had occasion to decide whether, or under

what circumstances, a State simple possession offense qualifies as an

aggravated felony by virtue of its correspondence to the Federal felony offense

of “recidivist possession,” as recognized by the Supreme Court in Lopez

v. Gonzales, supra, at 630 n.6. Accordingly, applying our precedent in Matter

of Carachuri-Rosendo, supra, we conclude that the respondent’s 2003 Florida

offense of simple possession of marijuana does not correspond to “recidivist

possession,” despite the fact that the underlying offense was committed after

a prior conviction for a “drug, narcotic, or chemical offense” had become final,

because the record does not reflect that the 2003 conviction arose from a State

proceeding in which the respondent’s status as a recidivist drug offender was

either admitted or determined by a judge or jury. Therefore, the respondent

has not been convicted of an “aggravated felony” that would support either the

charge of deportability under section 237(a)(2)(A)(iii) of the Act or the bar to

eligibility for cancellation of removal set forth at section 240A(a)(3). The

respondent remains deportable under section 237(a)(2)(B)(i) of the Act, but it

appears that he may now be statutorily eligible for cancellation of removal.

Accordingly, the record will be remanded to the Immigration Judge for further

proceedings.

ORDER: The appeal is sustained in part and the record is remanded to the

Immigration Judge for further proceedings consistent with the foregoing

opinion and for the entry of a new decision.

CONCURRING AND DISSENTING OPINION: Roger A. Pauley, Board

Member

I concur in the majority’s able discussion showing that the respondent’s 2002

criminal proceeding for cocaine possession in which his guilt was withheld

constitutes a “conviction” for purposes of the Controlled Substances Act’s

recidivism provisions (as well as under the Immigration and Nationality Act).

However, I respectfully dissent from the majority’s holding that,

notwithstanding the respondent’s two convictions for drug possession offenses

in Florida State courts, the latter of which was committed after the first

conviction became final, the Immigration Judge erred in finding that the

second conviction was for an aggravated felony. The Immigration Judge

properly determined under Lopez v. Gonzales, 127 S. Ct. 625 (2006), that the

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respondent’s second offense qualifies as an aggravated felony because it could

have been prosecuted as a Federal felony under 21 U.S.C. § 844(a) (2000),

assuming the Federal prosecutor elected to charge the respondent as a

recidivist under the procedures found at 21 U.S.C. § 851 (2000). See Matter

of Carachuri-Rosendo, 24 I&N Dec. 382, 394 (BIA 2007) (Pauley,

concurring); see also United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir.

2007) (treating a criminal defendant’s second conviction for marijuana

possession as an aggravated felony conviction for sentence enhancement

purposes because he would have been eligible for a recidivist enhancement

under § 844(a) had he been prosecuted federally).

The majority’s decision is hardly surprising as it was presaged in Matter of

Carachuri-Rosendo, supra. Nevertheless, its decision is incorrect. The

majority concedes that the respondent has two valid convictions for drug

possession offenses that meet the timing and finality requirements for felony

treatment set forth in 21 U.S.C. § 844(a). It also concedes that it “is not clear

that Florida law provides any recidivist enhancement mechanism” for simple

possession drug offenses. Matter of Thomas, 24 I&N Dec. 416, 421 (BIA

2007). Its holding that, nonetheless, the respondent’s second conviction fails

to qualify as an aggravated felony conviction under section 101(a)(43)(B) of

the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2000), solely

because he was not charged as a recidivist under State law constitutes a

policy-driven conclusion that is not supported by either the statutes at issue or

the Supreme Court’s interpretation of them in Lopez v. Gonzales, supra.

While I am sympathetic to the policy concerns that appear to have contributed

to the majority’s conclusion, such concerns are not relevant to our task, and I

cannot therefore subscribe to the majority’s creative engineering that “invents”

a statute not of Congress’s making, but of its own.

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