Florida Delivery of Cocaine Categorically Not an Aggravated Felony Because Mens Rea Is Affirmative Defense Instead of Element

Sarmientos v. Holder, No. 13-60086 (5th Cir. Feb. 12, 2014) (Reavley, Prado, Owen)

Sarmientos is the Fifth Circuit’s Valentine’s Day gift to immigration and criminal defense attorneys.  It’s also a nice reminder to check all of the elements of a conviction when using the categorical approach and that the categorical analysis applies to the “least of the acts criminalized.” 

Florida delivery of cocaine, Florida Statute § 893.13(1)(a)(1), did not require that the prosecution prove beyond a reasonable doubt that the defendant knowingly delivered cocaine.  Rather, the defendant could raise an affirmative defense that he lacked knowledge of the illicit nature of the controlled substance. 

Sarmientos argued before the immigration judge that, since the Florida statute lacked the federal mens rea requirement, his conviction was not categorically an aggravated felony.  The IJ rejected that argument and found that Sarmientos was ineligible for cancellation of removal.  Sarmientos appealed to the Board of Immigration Appeals, and the BIA affirmed the IJ’s decision.  On appeal to the Fifth Circuit, the panel reverses, citing the recent Supreme Court decisions of Moncrieffe and Descamps.

So, when undertaking the categorical analysis, keep an eye out for elements that a state statute turns into an affirmative defense.  The panel clearly rejects the Government’s argument that an affirmative defense is sufficient for a federal/generic element that must be found beyond a reasonable doubt.