[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 14513

________________________

Agency No. A044

- 849

- 370

KEEFE GORDON, Petitioner,

versus
UNITED STATES ATTORNEY GENERAL, Responde nt.

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

________________________ (June 24, 2020) Before WILLIAM PRYOR , Chief Judge, JILL PRYOR and LUCK , Circuit Judges. JILL PRYOR, Circuit Judge :

Case: 18-14513 Date Filed: 06/24/2020 Page: 1 of 142 Keefe Gordon , a native and citizen of Jamaica, petitions for review of the Board of Immigration Appeal s’ ( “ BIA ” ) order affirming an Immigration Judge’s (“IJ”) determination that his prior state conviction qualifie d as an aggravated felony under 8 U.S.C. § 1227 (a)(2)(A)(iii) , rendering him removable and ineligible for cancellation of removal

. See 8 U.S.C. § 1229b(a)(3). After careful review, and with the benefit of oral argument, w e deny Gordon’s petition for review of the BIA’s decision

. I. BACKGROUND Gordon was admitted to the United States as a lawful permanent resident in 1995

. Beginning a b out eight years later , he was convicted of various offenses in Georgia. These included convictions in 2003 for possession with intent to distribute ecstasy, in violation of O.C.G.A. § 16

- 13

- 30(b) and (d), and obstruction of a police officer, in violation of O.C.G.A. § 16

- 10

- 24(a), and convictions in 2006 for possession of cocaine, in violation of O.C.G.A. § 16

- 13

- 3 0( b ) ; possession of a firearm by a felon, in violation of O.C.G.A. § 16

- 11

- 131 ; and theft by receipt of stolen property, in violation of O.C.G.A. § 16

- 8

- 7

. In 2017 , t he Department of Homeland Security ( “ DHS ” ) charged Gordon as removable based on his convictions for an aggravated felon y involving a drug trafficking crime , 8 U.S.C §§ 1101(a)(43)(B) , 1227(a)(2)(A)(iii) ; an aggravated felon y involving possession of a firearm by a convicted felon , id.

Case: 18-14513 Date Filed: 06/24/2020 Page: 2 of 143 §§ 1101(a)(43)(E), 1227(a)(2)(A)(iii) ; a controlled substance offense , id. § 1227(a)(2)( B )(i) ; a firearms offense, id. § 1227(a)(2)( C ); and two crimes involving moral turpitude , id. § 1227(a)(2) ( A ) (ii)

. 1 Gordon denied the government’s allegations of fact and that he had an aggravated felony and argued that he was not removable as charged. He further argued that even if he were to be found removable, he would be eligible for c ancellation of r emoval as a l awful permanent resident under 8 U.S.C. § 1229b(a). Section 1229b(a) permits cancellation of removal for a noncitizen who has: (1) been a lawful perm anent resident for at least five years , (2) “ has resided in the United States continuously for 7 years after ha ving been admitted in any status ,” and (3) “ has not been convicted of any aggravated felony .” Id. Because Gordon met the first two requirements of § 1229b(a) , his removability turned ultimately on whether he had been convicted of an aggravated felony

. After a hearing, an IJ determined that Gordon was removable for having been convicted of an aggravated felony , specifically, his 2003 conviction for possession with intent to distribute the drug “ ecstasy , ” bec ause that offense was a drug trafficking crime involving a substance listed on the schedules to the federal

1 Gordon was also charged as removable for having been convicted of an aggravated felon y relating to a theft ; however, DHS withdrew this charge.

Case: 18-14513 Date Filed: 06/24/2020 Page: 3 of 144 Controlled Substances Act (“CSA”). 2 See id. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). The IJ acknowledged Gordon’s argument that O.C.G.A. § 16

- 13

- 30 encompassed m ore substances than those found on the federal schedules and th us was broader than the CSA . But the IJ concluded that he could look to Gordon’s record of conviction to determine the substance that was involved

. L ooking to Gordon’s record of conviction , the IJ found that he pled guilty to , and was convicted of, possession with intent to distribute ecstasy

. The IJ then determined that Gordon ’s conviction under § 16

- 13

- 30 was a drug trafficking crime and therefore an aggravated felony because ecstasy was a controlled substance under both Georgia and federal law

. Based on that determination, t he IJ concluded that Gordon was removable and , because his conviction was an aggr avated felony, he was ineligible for cancellation of removal.
See 8 U.S.C. § 1229b(a)(3)

. The IJ ordered him removed to Jamaica. Gordon appealed the IJ’s decision to the BIA , arguing that he had not been convicted of an aggravated felony or a controlled substance violation and that he was eligible for cancellation of removal

. The BIA disagreed . It concluded that his 2003 conviction for possession with intent to distribute e c stasy was a n aggravated

2 The IJ also determined that Gordon was removable based on his prior controlled substance offenses, specifica lly his 2003 and 2006 convictions involving ecstasy and cocaine. See id. § 1227(a)(2)(B)(i). Because the BIA addressed only whether Gordon’s conviction under § 16

- 13

- 30 qualified as an aggravated felony , we do not address any of the other grounds on whic h the IJ found him removable. See Imelda v. U.S. Att’y. Gen. , 611 F.3d 724, 727 (11th Cir. 2010). Case: 18-14513 Date Filed: 06/24/2020 Page: 4 of 145 felony , rendering him ineligible for cancellation of removal , and dismissed his appeal. Gordon petitioned our C ourt for review of the BIA’s decision.
II. STANDARDS OF REVIEW
W e review the BIA’s decision alone where, as here, it did not expressly adopt the IJ’s opinion or reasoning

. Imelda v. U.S. Att ’ y. Gen. , 611 F.3d 724, 727 (11th Cir. 2010)

. We review questions of law , such as whether a conviction qualifies as an aggravated felony , de nov o . Spaho v. U.S. Att ’ y Gen. , 837 F.3d 1172, 1176 (11th Cir. 2016)

. III. DISCUSSION
A noncitizen convicted of “ an aggravated felony ” is removable

. See 8 U.S.C. § 1227 (a)(2)(A)(iii). The term “aggravated felony” includes a conviction for a “ drug trafficking crime , ” which is defined as “ any felony punishable under the Controlled Substances Act .” See i d. § 1101 (a)(43)(B); 18 U.S.C. § 924 (c) (2)

. If Gordon’s conviction qualifie s as a n aggravated felony, he is both removable and ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)

. T he question we must address in this appeal is whether the BIA correctly determined that Gordon’s
2003 conviction under O.C.G.A. § 16

- 13

- 30 for possession with intent to distribute ecstasy qualifie d as a “ felony punishable under the Controlled Substances Act ” and thus as a n aggravated felony involving a drug trafficking crime

.

Case: 18-14513 Date Filed: 06/24/2020 Page: 5 of 146 Courts analyzing whether a conviction under a state statute qualifies as an aggravated felony “ apply a categorical or modified categorical approach, depending on the statutory scheme. ” Donawa v. U.S. Att ’ y Gen. , 735 F.3d 1275, 1280 (11th Cir. 2013) . Under the categorical approach, a court is permitted to examine only whether the “ state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony. ” Moncrieffe v. Holder , 569 U.S. 184, 190 (2013) (internal quotation marks omitted)

. If th e state statute is broader, meaning that it does no t fit entirely within the generic federal definition of a corresponding aggravated felony , a court may look to whether the s tate statute is “ divisible. ” A statute is divisible if it “ lists a number of alternative elements that effectively create several d ifferent crimes

. ” Guillen v.
U.S. Att ’ y Gen. , 910 F.3d 1174, 1180 (11th Cir. 2018) (internal quotation marks omitted). A divisible statute “ permit [s] the use of the modified categorical approach to uncover whether [a person’s] convictions relate to a federally controlled substance .” Id

. at 1179. Under the modified categorical approach, a
court may look to a small set of record documents, commonly ref erred to as

“ Shepard documents,” to determine the elements of the defendant’s offense of conviction

. See Shepard v. United States , 544 U.S. 13, 26 (2005) ; Guillen , 910 F.3d at 1180

. Shepard documents can consist of “ a plea agreement, the transcript

Case: 18-14513 Date Filed: 06/24/2020 Page: 6 of 147 of a plea colloquy, the charging document, jury instructions, or a comparable judicial record of this information.” Guillen , 910 F.3d at 1180 (internal quotation marks omitted) (citing Shepard , 544 U.S. at 26; Descamps v. United States , 570 U.S. 254, 262 (2013) )

. Gordon argues that his offense involving ecstasy does not qualify as an aggravated felon y because § 16

- 13

- 30 is broader than the federal C SA and is indivisible . T herefore , he argues, we cannot look to his record of conviction to determine what substance the conviction involved

. He further argues that even if we could look to his record of conviction , it reveals that he possessed ecstasy , which is not a federally controlled substance. We discuss each of Gordon’s arguments in turn. A. Georgia Statute § 16
- 13
- 30 (b) I s D ivisible. The parties agree that § 16

- 13

- 30 encompas ses substances that are not included on the schedules to the CSA ; therefore , not all conviction s under the Georgia statu te categorically constitute aggravated felon ies involving drug trafficking crime s . See Descamps , 570 U.S. at 261. We agree with the parties. To determine whether Gordon’s stat ute of conviction qualifies as a n aggravated felony , then, we must first evaluate whether the statute is divisible

. Gordon argues that § 16

- 13

- 30’s list of controlled substances in its Schedule s I and II are means of committing the offense rather than different

Case: 18-14513 Date Filed: 06/24/2020 Page: 7 of 148 elements and therefore the statute is indivisible as to the identity of the controlled substance . Georgia case law, however, in dicates that the controlled substance is an element of the offense , rendering § 16

- 13

- 30 divisible

. It is “easy” to determine whether a statute sets forth alternative elements or

means where “ the statute on its face ” resolves the issue or “ a state court decision definitively answers the question .” Mathis v. United States , 136 S. Ct. 2243, 2256 (2016)

. In Guillen , w e analyzed whether a Florida statute that contained a list of controlled substances , like the Georgia statute here, set forth alternative elements

or means . Guillen , 910 F.3d at 117 9

- 8 4. W e looked to Florida case law because , as is also true here, “the statute on its face fail [ed] to provide a clear answer on divisibility.” Id. at 1181

- 82. We held that Florida case law implied that the statute was divisible because it permitted a defendant to be convicted of “ both possession of marijuana and poss ession of a hallucinogenic drug, even though the offenses were merely different facets of the same transaction. ” Id. at 1182 ( internal quotation marks omitted). The same is true of Georgia case law ’s treatment of § 16

- 13

- 30(b) and (d). Section 16

- 13

- 30 (b) makes it unlawful “ for any person to

. . . possess with intent to distribute any controlled substance

. ” O.C.G.A. § 16

- 13

- 30(b). Subsection (d) provides that “ any person who violates subsection (b) of this Code section with respect to a controlle d substance in Schedule I or Schedule II shall be guilty of a

Case: 18-14513 Date Filed: 06/24/2020 Page: 8 of 149 felony .” Id. § 16

- 13

- 30(d). In Tabb v. State , the Georgia Supreme Court held that Georgia could charge and convict a defendant in separate counts for simultaneous possession of three different Schedule II controlled substances. 297 S.E.2d 227 , 230 (Ga. 1982)

. The C ourt expressly rejected Tabb’s contention that the illegal possession of several controlled substances amounted to a single offense. I d.
A nalyzing the language of the statute and Georgia law, the Georgia Supreme Court d etermined that “ simultaneous possession of each of the controlled substances listed in Schedule II

. . . is a separate offense for which the legislature meant to impose punish ment. ” Id. Where the state’s highest court “ has told us that the elements of possession of [several controlled substances] are different, it has implicitly told us that the identity of the substance possessed is an element of possession. ” Guillen , 910 F.3d at 118 2

. Because the Georgia Supreme Court has told us that possession of each of the “controlled substances listed . . . is a separate offense , ” that settles the matter: the identity of the controlled substance s in § 16

- 13

- 30 is an element of the offenses criminalized in that statute

. Tabb , 297 S.E.2d at 230; see Guillen , 910 F.3d at
118 2

. We therefore conclude that § 16

- 13

- 30 is divisible , and the modified categorical approach applies.
B. The BIA Did Not Err in Determining t hat Ecstasy I s a Federally Controlled Substance U nder Georgia Law . Case: 18-14513 Date Filed: 06/24/2020 Page: 9 of 1410 We now apply the modified categorical approach to determine whether Gordon ’s conviction under § 16

- 13

- 30 qualifies as a n aggravated felony involving a drug trafficking crime

. Under the modified categorical approach, w e identify the substance Gordon was convicted of p ossessing and then evaluate whether that substance corresponds with a federally controlled substance. See Guillen , 910 F.3d
at 1185. Gordon’s indictment reveals that the substance he was convicted of possessing with the intent to distribute was “ ecstasy. ” AR. at 666

- 68, 675 3 ; see Shepard , 544 U.S. at 26

. Gordon does not disagree that his conviction involved ecstasy

. Instead h e contends that because ecstasy is not listed in either the Georgia

or federal controlled substance s schedules, and the Shepard documents do not reveal the chemical substances that made up the ecstasy he possessed , the drug is not a controlled substance under the CSA

. T herefore , he argues, he was not convicted of a “ felony punishable under ” the C SA

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

. The CSA defines the term “controlled substance” as “ a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6). E cstasy is not included in the federal controlled substance schedules ; however, 3, 4

- methylenedioxymethampheta mine

3 Citations to “AR” refer to the administrative record in Gordon’s removal proceedings

. Case: 18-14513 Date Filed: 06/24/2020 Page: 10 of 1411 (“MDMA”) is listed. See 21 C.F.R. § 1308.11(d)(11)

. The government argues that because Georgia law refers to MDMA as ecstasy , Gordon was convicted of possessing with the intent to distribute MDMA , a federally controlled substance. We agree that Georgia case law indicates that Georgia courts refer to
MDMA as ecstasy

. For example, in Cooper v. State , Cooper was charged for the possession of N

- Benzylpiperazine, commonly known as BZP, a Schedule I controlled substance in Georgia. 728 S.E.2d 289, 290 (Ga. Ct

. App. 2012)

. Cooper argued that the State’s evidence against him was insufficient because he did not knowingly possess BZP but possessed “ a different Schedule I controlled substan ce , ecstasy

. ” Id. at 291. The court rejected the argument because Cooper’s knowledge was a question for the jury, and the jury could have inferred from circumstantial eviden ce that he knew he possessed the chemical compound BZP, not ecstasy. Id. In its analysis of Cooper’s argument, the court recognized that

“ MDMA or ecstasy is a Schedule I controlled substance denominated 3, 4

– Methylenedioxymethamphetamine. ” Id. at 291 n.2 ( emphasis added) (internal quotation marks omitted). Cooper suggests that Georgia courts refer to MDMA , and not other controlled substances, as ecstasy

. O t her cases support the conclusion that in Georgia ecstasy refers to MDMA.
See Jackson v. State , 724 S.E.2d 9, 11 ( Ga. Ct

. App. 2012) ( recounting that two defendants were “ convicted of trafficking in 3, 4

–

Case: 18-14513 Date Filed: 06/24/2020 Page: 11 of 1412 methylenedioxymethamphetamine ( ‘ MDMA ’ or ‘ ecsta [s] y ’ ) ”) ; Gibson v. State , 706 S.E.2d 585, 585

- 86 & n.1 ( Ga. Ct

. App. 2011) ( n oting that the defendant was convicted of “ trafficking in MDMA ( ‘ ecsta [s] y ’ ) ”) ; Taylor v. State , 702 S.E.2d 28,
28

- 29 ( Ga. Ct

. App. 2010) ( explaining that the defendant “was convicted of possession of MDMA (‘Ecstasy’) (footnote omitted) ) ; Vines v. State , 675 S.E.2d 260, 262 n.1 ( Ga. Ct

. App. 2009) (“ MDMA is an abbreviation for 3, 4

- Methylenedioxymethamphetamine and is commonly known as ‘ Ecstasy. ’ ” )

. R elying on Farley v. State , 732 S.E.2d 131 ( Ga. Ct

. App. 2012 ), Gordon argues that Georgia also treats other chemicals be sides MDMA as ecstasy and therefore ecstasy does not necessarily refer to MDMA. In Farley , the defendant was charged and convicted of , among other offenses , the sale of ecstasy. Id. at 132

. The court noted that the ecstasy pills Farley sold tested positive for “ the presence of N

- benzylpiperazine (BZP) and 1

– (3

– trifluoromethylphenyl) piperazine (TFMPP). ” Id. at 133. We are unpersuaded by Gordon’s argument that Farley leads us to a different conc lusion regarding whether ecstasy was a federally controlled substance

. A lthough the pills at issue in Farley were charged as ecstas y but contained BZP and TFMPP , at the time of Gordon’s conviction those two substances were listed on the federal controlled substance s schedules

. See 21 C.F.R. § 1308.11 (g)(3)

- (4) (2003)

. BZP and TFMPP were added to the federal schedules

Case: 18-14513 Date Filed: 06/24/2020 Page: 12 of 1413 specifically because when combined they imitate the effect s of MDMA and are sold as such

. See Schedules of Controlled Substances; Placement of 2,5

- Dimethoxy

- 4

- (n)

- propylthiophenethylamine and N

- Benzylpiperazine Into Schedule I of the Controlled Substances Act, 69 F ed. R eg. 12 , 794 , 12 , 795 (Mar. 18, 2004)

. Thus, even if we accepted that in Georgia ecstasy could refer to BZP and TFMPP

— meaning that Gordon ’s conviction for possessing with the intent to distribute ecstasy could have involved these controlled substances instead of
MDMA

— Gordon ’s conviction would nonetheless qualify as a n aggravated felony

. 4 21 C.F.R. § 1308.11 (g)(3)

- (4) (2003)

. Because the controlled substances at issue in Farley were nonetheless federal ly controlled substances , we reject Gordon’s argument that Farley means he could have been conv icted of possessing with the intent to distribute a substance not listed on the federal controlled substances schedules

. We thus conclude that Gordon’s conviction under § 16

- 16

- 30 qualifies as a felony punishable under the
CSA . The BIA therefore correctly determined that he was removable and

4 Gordon argues that we must compare his conviction with the federal controlled substance s schedules in effect at the time of his removal proceedings rather than those in effect at the time of his conviction

. He is incorrect. In assessing whether a noncitizen’s conviction qualifies as an aggravated felony, we compare his offense of conviction to the CSA schedules in effect when he was convict ed

. See Mellouli v. Lynch , 135 S. Ct. 1980, 1988 (2015) ( c omparing the state controlled substance schedules with the federal schedules in place “ [ a ] t the time of Mellouli ’ s conviction ” ) ; see also Collymore v. Lynch , 828 F.3d 139, 142 n. 4 (2d Cir. 2016) ( noting that the court’s references to the federal controlled substance schedules concern the

“ version of the federal drug schedules in effect at the time of Collymore ’ s conviction ”).

Case: 18-14513 Date Filed: 06/24/2020 Page: 13 of 1414 ineligible for cancellation of removal based on an aggravated felony for a drug trafficking crime. See 8 U.S.C. § § 1101 (a)(43)(B) , 1229b(a)(3) ; 18 U.S.C. § 924 (c) (2)

. PETITION DENIED. Case: 18-14513 Date Filed: 06/24/2020 Page: 14 of 14