In Said v. U.S. Att’y Gen., 21-12917 (Mar. 24, 2022) (Jordan, Newsom, Tjoflat), the Court held that a violation of Fla. Stat. § 893.13(6)(a)–the Florida marijuana possession statute–did not relate to a controlled substance, as defined in 21 U.S.C. § 802, and thus did not prevent Mr. Said from accruing the necessary seven-year period of continuous residence for his application for cancellation of removal. As such, the Court found that the BIA and IJ erred in finding that Said was ineligible for cancellation of removal.
The Court reasoned that by the plain language of Fla. Stat. § 893.02(3), not all substances that it proscribes are federally controlled. Section 893.02(3) includes “all parts” of the marijuana plant, while federal law does not. For instance, federal law does not include the mature stalks of the marijuana plant or fiber produced from such stalks. 21 U.S.C. § 802(16). This is a significant divergence, and on its own, is sufficient to establish a realistic probability of broader prosecution under Florida law. The Court distinguished its opinion from Chamu, where petitioner presented a hypothetical form of cocaine covered by state, but not federal law, to attempt to establish overbreadth. Here, because the stalks of the marijuana plant do exist, it cannot be argued that Florida law just uses different terminology to describe the same substance proscribed by federal law. The Court declined to ignore the statutory text and construct a narrower statute than the plain language supports.
***though this case arose in an immigration context, its reasoning regarding Fla. Stat. 893.13(6)(a) applies to any recidivist enhancement that incorporates the federal controlled schedules—ACCA, 851, and possibly 4B1.2(b)***