Tennessee Money Laundering Statute - Divisible or Not?
The Fifth Circuit Court of Appeal, in Mohammed Abdelfattah Fakhuri v. Garland (March 11, 2022) No. 19-60275, concluded that a statute divided into subsections that specifies a distinct penalty for each subsection is a divisible statute for the purpose of using the categorical approach to classify an offense described in one of the distinct subsections as an aggravated felony. In addition, the Fifth Circuit Court of Appeal confirmed that a generic federal crime containing a jurisdictional clause for the purpose of linking the federal crime to interstate commerce can be matched with a State offense that does not contain the same jurisdictional clause for the purpose of classifying the State crime as an aggravated felony under section 101(a)(43) of the Immigration and Nationality Act, as amended.
The procedural history, facts of record, holding and rationale in Mohammed Abdelfattah Fakhuri v. Garland (March 11, 2022) No. 19-60275 are as follows:
Case History
The Department of Homeland Security (“DHS”) initiated removal proceedings against the Petitioner who was a lawful permanent resident of the United States. In particular, the DHS alleged that the Petitioner had been convicted of an “aggravated felony,” described under section 101(a)(43)(D) and (U) of the Immigration and Nationality Act, as amended (“the Act”) (i.e. an offense described in 18 U.S.C. § 1957 relating to engaging in monetary transactions in property derived from specific unlawful activity and an attempt to commit any aggravated felony); consequently, subjecting him to removal under section 237(a)(2)(A)(iii) of the Act.
An Immigration Judge sustained the removal charge under section 237(a)(2)(A)(iii) of the Act and pretermitted the Petitioner’s request for cancellation of removal relating to lawful permanent residents of the United States under section 240A(a) of the Act because that form of relief is unavailable to any alien with an aggravated felony conviction. See section 240A(a)(3) of the Act.
The Petitioner appealed to the Board of Immigration Appeals (“BIA”).
The BIA affirmed the decision of the Immigration Judge.
The Petitioner filed a petition for review.
Facts
The Petitioner is a citizen of Jordan and lawful permanent resident of the United States.
The Petitioner was arrested for participating in drug-trafficking activities.
In 2018, the Petitioner pleaded guilty of attempting to launder money in violation of Tennessee Code Sections 39- 12- 101 (“Section 101”) and 39- 14- 903 (“Section 903”).
Section 101 forbids attempting to commit a crime. Section 903 prohibits five different forms of money laundering in distinct subsections. Each of these subsections contains its own penalty provision.
The Petitioner’s plea agreement did not explicitly identify the part of Section 903 he had violated, but the language of his indictment closely mirrored that of subsection (b):
knowingly us[ing] proceeds derived directly or indirectly from a specified unlawful activity with the intent to promote, in whole or in part, the carrying on of a specified unlawful activity.
The specific language of the Petitioner’s indictment is as follows:
knowingly . . . us[ing] proceeds derived directly or indirectly from an unlawful activity, to wit: [drug trafficking], with the intent to promote, in whole or in part, the carrying on of a [sic] unlawful activity, to wit: [drug trafficking].
In its decision agreeing with the Immigration Judge, the BIA applied the categorical approach to determine whether Section 903 matched the generic definition of a money laundering offense in section 101(a)(43)(D) of the Act. See Mathis v. United States, 136 S. Ct. 2243, at 2248–49 (2016) (describing the categorical approach).
Because “each subsection [of Section 903] carries its own sentencing structure,” the BIA concluded that Section 903 was “divisible by subsection.” It then examined the Petitioner’s indictment, found that he had been convicted of attempting to violate subsection (b), and held that subsection (b) categorically matched the generic crime of money laundering.
Ultimately, the BIA determined that the Petitioner was subject to removal because he had been convicted for an aggravated felony described under section 101(a)(43)(U) of the Act (i.e. an attempt to commit an aggravated felony described in section 101(a)(43)(D) of the Act).
Held
Petition for Review DENIED
Rationale
The Fifth Circuit Court of Appeal, in Mohammed Abdelfattah Fakhuri v. Garland (March 11, 2022) No. 19-60275, first determined whether it had jurisdiction over the Petitioner’s claims. Then it addressed the merits of the remaining claims over which jurisdiction had been established.
The Petitioner raised five claims in his petition for review:
- Section 903 of the Tennessee Code is not divisible for the purpose of using the categorical approach to classify his offense under Section 903 as an aggravated felony because each of the subsections of Section 903 is designated as a “Class B” felony. In other words, the penalty for all the subsections of Section 903 is the same.
- Even if Section 903 of the Tennessee Code is divisible, subsection (b) (under which the Petitioner had been indicted) wouldn’t be a categorical match with the generic crime of money laundering because it lacks the jurisdictional language of the generic federal money laundering statute (i.e. using proceeds in a “financial transaction”).
- The Immigration and the BIA erred by skipping the first step of the “modified categorical approach” (i.e. compare the all the elements of Section 903(b) to the appropriate generic federal offense).
- That Section 903(b) of the Tennessee Code does not “contemplate an element of ʻattempt’ at all.”
- That he cannot be removed for attempting to launder drug money because he was never convicted of a drug offense.
Jurisdiction
- The Petitioner never raised any of the claims described above under 3 – 5 in the brief he submitted to the BIA. See Vazquez v. Sessions, 885 F.3d 862, at 868 (5th Cir. 2018) (quoting Claudio v. Holder, 601 F.3d 316, at 319 (5th Cir. 2010) (“If an alien submits a brief, ʻ[it] becomes the operative document through which any issues that [he] wishes to have considered must be raised.’”).
- The BIA never addressed the claims described above under 3 - 5 on its own.
- Therefore, claims described above under 3 – 5 are unexhausted, and an appellate court lacks jurisdiction to consider them pursuant to section 242(d)(1) of the Act.
Merits
Divisibility of Section 903 of the Tennessee Code
- Each of the Section 903 “offense[s]” is set out in a separate subsection, and each of those subsections specifies a distinct penalty.
- In spite of the Petitioner’s assertion that each subsection of Section 903 is a Class B felony, different subsections of Section 903 carry different punishments.
- In particular, subsections (a), (b), and (c) are “Class B” felonies, which are punishable with 8 to 30 years’ imprisonment and a fine of $25,000.10. Subsection (d), however, is a “Class E felony” that is “punishable only by a fine of five thousand dollars” and the forfeiture of the assets used to conduct or facilitate the crime. While subsection (e) is a “Class B felony,” it may also be punished with that type of forfeiture (unlike subsections (a), (b), and (c)).
- Because those “statutory alternatives carry different punishments,” they must be different offenses; not different means of committing the same offense. Mathis v. United States, 136 S. Ct. 2243, at 2256 (2016) (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).
Categorical Match
- Subsection (b) of Section 903 of the Tennessee Code prohibits “us[ing] proceeds” of illegal activity to promote illegal activity; and the generic federal crime of money laundering prohibits only using such proceeds in a “financial transaction.” See 18 U.S.C. § 1956(a)(1)(A).
- Despite the different language of the generic federal crime of money laundering relating to a “financial transaction,” the generic federal crime requires a “financial transaction” to establish a connection with “interstate or foreign commerce” for the purpose of establishing federal jurisdiction. See 18 U.S.C. § 1956(c)(4). See Torres v. Lynch, 578 U.S. 452, at 473 (2016).
- The Petitioner did not shown that there is a “realistic probability” Tennessee would apply subsection (b) to conduct that doesn’t involve a financial transaction. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
- Thus, the BIA did not err in concluding that subsection (b) of Section 903 was a categorical match with the generic crime of money laundering.
Commentary
Understanding the analytical method by which the Fifth Circuit Court of Appeal classified the Petitioner’s money laundering offense as an aggravated felony in Mohammed Abdelfattah Fakhuri v. Garland (March 11, 2022) No. 19-60275 must seem mystifying to anybody who is unfamiliar with the current method for classifying aggravated felonies.
Executing the protocol for classifying offenses (most of which are prosecuted under State law) as aggravated felonies under federal law is one of the many challenging tasks that immigration lawyers and judges must undertake. Lawyers who defend individuals in immigration proceedings seem to enjoy this task more than government lawyers and judges because the task can be confusing which is usually good for clients. Occasionally, there seems to be no way to cut through what sometimes takes on the unsolvable quality of the famous Gordian knot. Unfortunately, Alexander the Great’s approach literally won’t cut it.
The hypothetical method for classifying aggravated felonies is not the first or only example of baffling immigration law complexity. Chief Judge Irving R. Kaufman placed immigration law in the same dubious category as tax law with this opening comment in one of his appellate decisions:
We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges.
See Lok v. Immigration and Naturalization Service, 548 F.2d 37 (2nd Cir. 1977).
The manner in which the elements of a State offense are identified for comparison to a generic federal offense described in the aggravated felony definition for the purpose of matching the State offense with a generic federal offense, thereby classifying it as an aggravated felony, has evolved in case law (i.e. court decisions). The first administrative decision that authorized this comparison approach to classify State offenses as aggravated felonies is Matter of Barrett, 20 I&N Dec. 171 (1990).
The evolution of the comparison method of classification approved in Matter of Barrett ultimately centered on what documents or sources can be used to identify the "elements" of an offense for which a person in immigration proceedings had been convicted. Real facts, however, were not ignored, as long as they existed in the record of criminal proceedings and constituted "elements" of the offense. Matter of Barrett, at 174. The BIA in Matter of Barrett focused on the meaning of "punishable under" 18 U.S.C. § 924(c)(2) which defines "drug trafficking crime" in the context of the Controlled Substances Act (“CSA”). Ultimately, the BIA approved a comparative approach that allowed a court to examine the facts to determine whether the conduct of an alien convicted for a State offense amounts to an offense "punishable under" the CSA. Matter of Barrett, at 177.
Now it seems appropriate to introduce the terms, “categorical approach” and “modified categorical approach.” These terms relate to the current procedure used for comparing an offense for which an alien has been convicted to the generic federal offense in or referenced in the definition of aggravated felony.
The categorical approach describes a direct comparison of the statutory definition of an offense to the statutory elements of the generic federal offense or federal offense referenced in the aggravated felony definition. If all of the elements of the offense under consideration match each of the elements in the generic federal offense or federal offense referenced in the aggravated felony definition there is no need for further inquiry. The offense under consideration must be an aggravated felony according to basic inductive logic. Taylor v. United States, 495 U.S. 575 (1990) (“The sentencing court must generally adopt a formal categorical approach . . . looking only to the fact of conviction and the statutory definition of the predicate offense, rather than to the particular underlying facts.”).
Taylor v. United States involved the application of sentencing guidelines in United States District Court. It serves, however, as guidance for application of the categorical approach in immigration proceedings. The United States Supreme Court further reiterated that, under the categorical approach, courts “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [crime], while ignoring the particular facts of the case.” Mathis v. United States, 136 S. Ct. 2243, at 2248 (2016).
Obviously, the Matter of Barrett comparative approach that permitted consideration of real facts of the commission of a crime is no longer applicable.
To put the changed approach in a nut shell, the aggravated felony classification method has evolved from comparing elements of a crime arising from behavior that violated a statute to the current method of comparing textual elements of a violated statute to the textual elements of a generic federal statute.
So if an offense under review for comparison to a generic federal offense consists of only one set of elements needed to prove its commission the offense is deemed indivisible and the modified categorical classification approach cannot be utilized. Descamps v. United States, 559 U. S. 133 (2013) (“The modified categorical approach does not apply to statutes . . . that contain a single, indivisible set of elements.”).
Sometimes the State offense is broader in scope with regard to its elements than the generic federal offense or offense referenced in the aggravated felony definition. In this circumstance, lawyers and judges must determine whether a realistic probability exists that the minimum criminal conduct punished under the statute would be subject to prosecution in the jurisdiction where the offense is defined. Moncrieffe v. Holder, 133 S. Ct. 1678, at 1684-85 (2013). A review of case law in the State where the conviction occurred will be necessary to determine if an example of prosecution for such minimum criminal conduct exists. This is why the Fifth Circuit Court of Appeal pointed out in its alternative rationale that “Fakhuri’s claim fails because he has not shown that there is a 'realistic probability' Tennessee would apply Subsection (b) to conduct that doesn’t involve a financial transaction.” Mohammed Abdelfattah Fakhuri v. Garland (March 11, 2022) No. 19-60275, at p. 8.
Before resorting to a modified categorical approach, a distinction must be made between elements of an offense (which must be proven beyond a reasonable doubt) and the means of committing the offense (for which proof is not necessary to obtain a conviction, but might appear in the criminal statute). Quoting Mathis, the BIA acknowledged that “the divisibility of a State statute depends on whether State law establishes that statutory alternatives are discrete ‘elements’ or alternative ‘means’ of committing an offense. Mathis v. United States, 136 S. Ct. at 2256.” Matter of Chairez-Castrejon, 27 I&N Dec. 21 (BIA 2017). The determination of whether parts of a State statute are “elements” or “means” typically involves a review of case law in the State where the conviction occurred.
In short, an “element” of an offense must be proven beyond a reasonable doubt to obtain a conviction. Whereas, the “means” of committing an offense is the way in which an offense is committed that need not be proven to obtain a conviction.
For example, referring to the law under review in Arturo Ochoa-Salgado v. Merrick Garland, (5th Cir. July 16, 2021) No. 19-60519, the alternative means of committing delivery of a controlled substance under Texas law are: 1) actual transfer, 2) constructive transfer, or 3) an offer to sell. See § 481.112 of the Texas Health and Safety Code. The punishment for delivery of a controlled substance in Texas remains the same regardless of the means by which the offense is committed. However, a different punishment range applies if the element of the offense changes from “delivery” to “possession.” See § 481.115 of the Texas Health and Safety Code.
Once State offenses under consideration are deemed divisible, lawyers and judges can resort to the modified categorical approach. This opens the door to review of indictments, jury instructions, plea colloquies, and plea agreements.
Perhaps, it is becoming obvious, even to those readers who harbor reservations about Chief Judge Kaufman’s opinion, that application of the aggravated felony definition under 101(a)(43) of the Act is anything but clear or simple.
Here is an example of the hazy fog that can arise without warning from categorical and modified categorical methods for classifying aggravated felonies to baffle the most wary and sagacious adjudicator. Rape which is an aggravated felony under section 101(a)(43)(A) of the Act is not defined in any federal statute that can serve as a generic federal offense for comparison to a State offense. The BIA wrestled its way out of this predicament with the invention of an imaginary generic federal rape offense by defining “rape” according to its “ordinary, contemporary meaning” in 1996, when Congress added “rape” to section 101(a)(43)(A) of the Act. Matter of Keeley, 27 I&N Dec. 146 (BIA 2017). See, also, Matter of Alvarado, 26 I&N Dec. 895, at 897 (BIA 2016) (finding “it appropriate to adopt a generic definition [of a crime] based on how [it] was commonly defined” when section 101(a)(43) of the Act was enacted). This creative and imaginary patch to the aggravated felony classification procedure blends easily with the categorical and modified categorical approaches because it also appears as clear as mud.
Perhaps, Congress should give some thought to repealing the aggravated felony definition. Congress could then more efficiently achieve the same purposes that motivated enactment of the aggravated felony legislation in the first place.
For example, the same results could be realized by providing that any alien sentenced to 7 years or more (or any number of years Congress deems appropriate) upon conviction for any nonpolitical crime is subject to removal and barred from relief applications in the same way as persons convicted for what is now known as an “aggravated felony.”
This sort of disabling provision would simplify application of the law by eliminating the need to compare State offenses to generic (and sometimes nonexistent) federal offenses.
Finally, use of less provocative terminology such as "disqualifying offense," rather than "aggravated felony," might establish a more dispassionate, objective tone that is less likely to mislead or tempt misinterpretation.It sometimes seems futile to persuade law makers and policy makers who live in a visionary world of ideas, aspirations and politics remote from the ground level legal arena to consider the practicalities of application when drafting legislation. Thus, as noted by Judge Kaufman, Congress continues the practice of "passing statutes certain to accelerate the aging process of judges."