Jorge Ibanez-Beltran v. Loretta Lynch ( 2017 )


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  •         IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 15-60183
    Fifth Circuit
    FILED
    January 11, 2017
    JORGE IBANEZ-BELTRAN,                                               Lyle W. Cayce
    Clerk
    Petitioner
    v.
    LORETTA LYNCH, U. S. ATTORNEY GENERAL,
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    Before JONES, BARKSDALE, and COSTA, Circuit Judges.
    PER CURIAM:
    The Government charged Jorge Ibanez-Beltran, a citizen of Mexico, with
    being removable from this country, due in part to his Arizona conviction for
    attempted transportation of marijuana for sale under Arizona Revised Statute
    Section 13-3405(A)(4). Ibanez-Beltran concedes that this offense makes him
    removable, but denies that it also qualifies as an aggravated felony that makes
    him ineligible for cancellation of removal. He argues that the Arizona statute
    is neither a categorical match to a qualifying federal drug trafficking offense
    nor divisible. We must decide whether section 13-3405(A)(4) is divisible, and,
    if so, whether the modified categorical approach confirms that Ibanez-Beltran
    was convicted of an aggravated felony.
    No. 15-60183
    ***
    Ibanez-Beltran was placed in removal proceedings after his conviction
    under Arizona Revised Statute Section 13-3405(A)(4). The statute states that
    a “person shall not knowingly . . . [t]ransport for sale, import into this state or
    offer to transport for sale or import into this state, sell, transfer or offer to sell
    or transfer marijuana.” A.R.S. § 13-3405(A)(4). His indictment charged all of
    these provisions, but his plea document and judgment listed only “attempted
    transportation of marijuana for sale.”
    Ibanez-Beltran conceded he was removable for violating a state law
    relating to a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), but he
    denied being ineligible for relief on the grounds that his marijuana conviction
    qualified as an aggravated felony, 8 U.S.C. § 1101(a)(43)(B). The Immigration
    Judge disagreed, concluding that Ibanez-Beltran was ineligible for relief
    because his Arizona conviction was an aggravated felony.                   8 U.S.C.
    § 1229b(a)(3). The Board of Immigration Appeals affirmed.
    An aggravated felony is defined by a long list of offenses that includes
    “illicit trafficking in a controlled substance, including a drug trafficking crime.”
    8 U.S.C. § 1101(a)(43)(B).      An offense is a drug trafficking crime if it is
    punishable as a felony under the federal Controlled Substances Act (CSA). 18
    U.S.C. § 924(c)(2); 21 U.S.C. § 801 et seq. An offense is a felony under the CSA
    if it is punishable by imprisonment of more than one year.                21 U.S.C.
    §§ 802(13), (44). The government argues that Ibanez-Beltran was convicted of
    “attempted transportation of marijuana for sale” under Arizona law. The
    federal counterpart for attempted transportation of marijuana is punishable
    by imprisonment of more than one year. 21 U.S.C. §§ 841(b)(1)(D), 846. This
    means that if Ibanez-Beltran was convicted of the state offense of “attempted
    transportation of marijuana for sale,” he was convicted of an aggravated felony.
    2
    No. 15-60183
    Ibanez-Beltran counters that because the Arizona statute of conviction
    includes solicitation offenses, namely “offer to transport,” the statute is not a
    categorical match to the federal drug trafficking offense. He further argues
    that his statute is not divisible. That would mean Ibanez-Beltran was not
    convicted of an aggravated felony and the Board of Immigration Appeals erred
    in deeming him ineligible to request cancellation of removal.
    When determining whether a prior offense qualifies as an aggravated
    felony, we first apply the categorical approach, asking whether the state
    criminal offense lines up with the corresponding aggravated felony, which here
    is attempted drug trafficking. Moncrieffe v. Holder, 
    133 S. Ct. 1678
    , 1684
    (2013). That determination is made by comparing the elements of the state
    offense with the elements of the federal drug trafficking offense. Id.; Taylor v.
    United States, 
    495 U.S. 575
    , 600–01 (1990).                That comparison is
    straightforward when a statute sets out a single set of elements to define a
    single crime.
    Here the comparison is not so simple because Ibanez-Beltran’s statute of
    conviction lists multiple actus rei. The statutory provision states that a person
    shall not knowingly: 1) transport [marijuana] for sale; 2) import [marijuana]
    into this state; 3) offer to transport [marijuana] for sale; 4) offer to import
    [marijuana] into this state; 5) sell [marijuana]; 6) transfer [marijuana]; 7) offer
    to sell [marijuana]; or 8) offer to transfer [marijuana]. A.R.S. § 13-3405(A)(4)
    (numbering added). The government conceded that the statute as a whole is
    not a categorical match to the federal offense of drug trafficking, because it
    lists solicitation offenses that are not covered in the federal definition. United
    States v. Ibarra-Luna, 
    628 F.3d 712
    , 716 (5th Cir. 2010) (“The government
    concedes that a mere offer to sell, without evidence of possession or transfer, is
    tantamount to solicitation and is not proscribed by the [CSA].”). Our decision
    thus comes down to whether the modified categorical approach can be used to
    3
    No. 15-60183
    narrow Ibanez-Beltran’s conviction to attempted transportation of marijuana
    for sale, which would be a felony under the federal drug laws.
    The modified categorical approach allows courts to examine “a limited
    class of documents” from the record to determine whether the defendant was
    convicted of an offense that matches the corresponding federal offense.
    Descamps v. United States, 
    133 S. Ct. 2276
    , 2281 (2013). Courts may only use
    the modified approach, though, when the statute of conviction is divisible. A
    statute is divisible when it defines multiple crimes by listing elements in the
    alternative instead of listing various factual means of committing a single
    crime. Mathis v. United States, 
    136 S. Ct. 2243
    , 2248–49 (2016). Our task
    when determining whether a statute is divisible, then, “is to determine
    whether ‘listed items’ in a statute ‘are elements or means.’” United States v.
    Hinkle, 
    832 F.3d 569
    , 575 (5th Cir. 2016) (quoting 
    Mathis, 136 S. Ct. at 2256
    ).
    This ultimately turns on whether a jury would have to agree on whether the
    defendant completed that action. 
    Id. (“When a
    jury is not required to agree on
    the way that a particular requirement of an offense is met, the way of satisfying
    that requirement is a means of committing an offense, not an element of the
    offense.”).   When state court decisions definitively answer whether jury
    unanimity is required, courts “need only follow what [they say].” 
    Mathis, 136 S. Ct. at 2256
    .
    Arizona case law does not provide that definitive answer here. Some
    state law decisions indicate that section 13-3405(A)(4) sets out multiple
    alternative offenses. For example, State v. Fierro lays out elements for the
    “offense of transportation of marijuana for sale.” 
    206 P.3d 786
    , 789 (Ariz. Ct.
    App. 2008). And State v. Chabolla-Hinojosa notes that the defendant was
    convicted of both importation of marijuana and transportation of marijuana.
    
    965 P.2d 94
    , 95 (Ariz. Ct. App. 1998); see also State v. Alvarado, 
    875 P.2d 198
    ,
    200 (Ariz. Ct. App. 1994) (noting that defendant was convicted of “offering to
    4
    No. 15-60183
    sell marijuana”); State v. Hans, 
    2008 WL 4261034
    , at *4 (Ariz. Ct. App. 2008);
    but see State v. Medina, 
    2016 WL 489838
    , at *1 (Ariz. Ct. App. 2016) (affirming
    defendant’s conviction for “sale or transportation of marijuana”). These courts’
    treatment of section 13-3405(A)(4) suggests that the statute is divisible. 1
    But some Arizona decisions interpreting similar statutes point in the
    other direction. Arizona courts have assumed that the legislature does not
    intend to create more offenses than those listed in the heading of a statute.
    State v. Brown, 
    177 P.3d 878
    , 881 (Ariz. Ct. App. 2008) (citing State v. Dixon,
    
    622 P.2d 501
    , 508 (Ariz. Ct. App. 1980)). Instead, courts in Arizona assume
    that if the legislature intended to create separate offenses, it would have
    enacted separate subparts as it did in other parts of section 13-3405(A). See
    State v. Manzanedo, 
    110 P.3d 1026
    , 1028 (Ariz. Ct. App. 2005). The heading
    of section 13-3405 reads: “Possession, use, production, sale or transportation of
    marijuana.” Although this heading implies that sale and transportation are
    separate offenses, it cuts against finding that the other terms, for example
    “offer to transport,” are themselves separate offenses. Instead, they could be
    alternative means to commit either sale of marijuana or transportation of
    marijuana.
    And an Arizona court has held that solicitation terms in a similarly
    worded statute were alternative means, not elements, to commit the offense.
    In Brown, the court examined an almost identically worded statute that
    prohibited the knowing “[t]ransport for sale, import into this state, offer to
    1 The Supreme Court of Arizona has recognized that the separate subsections of this
    drug statute create different offenses. State v. Cota, 
    191 Ariz. 380
    , 382, 
    956 P.2d 507
    , 509
    (1998) (“[T]he relevant statutes distinguish between the separate crimes of ‘transfer,’ on the
    one hand, and ‘possession,’ on the other.” (citing A.R.S. § 13-3405(A)(1); 
    id. § 13-3405(A)(4)).
    It has not directly addressed the question we confront: whether the various terms listed
    within a particular subsection (in Ibanez-Beltran’s case, subsection (A)(4)) also create
    separate offenses.
    5
    No. 15-60183
    transport for sale or import into this state, sell, transfer or offer to sell or
    transfer a narcotic drug.” A.R.S. § 13-3408(A)(7); see 
    Brown, 177 P.3d at 881
    –
    82. 2 The court focused on whether “sell, transfer or offer to sell or transfer”
    were separate offenses or alternative means to commit the same offense.
    
    Brown, 177 P.3d at 881
    –82 (quoting A.R.S. § 13-3408(A)(7)). It noted that
    section 13-3408’s heading mentioned “‘sale’ . . . of narcotic drugs” but did not
    reference transfer, offer to sell, or offer to transfer. 
    Id. at 881.
    Assuming that
    the legislature did not intend to create more offenses than those listed in the
    heading, the court held that the relevant phrase referred to different ways of
    committing the same offense. 
    Id. at 882.
    In other words, the legislature did
    not view the solicitation terms as creating separate offenses.
    So Arizona state law does not give us a clear answer on the construction
    of section 13-3405(A)(4). But Mathis provides us with another tool when state
    judicial decisions do not furnish an answer; we may look to the record of the
    prior conviction for “the sole and limited purpose of determining whether the
    listed items are elements of the offense.” 
    Mathis, 136 S. Ct. at 2256
    –57.
    Ibanez-Beltran’s plea agreement and judgment treats the terms in section 13-
    3405(A)(4) as elements of alternative offenses. Although the indictment simply
    listed all of the conduct contained in the statute, Ibanez-Beltran actually
    pleaded guilty to “attempted transportation of marijuana for sale.” When the
    relevant documents use one alternative term to the exclusion of all others, that
    indicates that the terms within the statute are individual elements. 
    Id. at 2257.
            Reinforcing the plea agreement’s treatment of transport for sale as a
    separate offense is Arizona’s pattern jury charge. See 
    id. at 2257
    (mentioning
    2Section 13-3408(A)(7) is identical to section 13-3405(A)(4), except section 13-
    3408(A)(7) targets narcotic drugs rather than marijuana.
    6
    No. 15-60183
    jury instructions as a source to determine divisibility); see also United States
    v. Martinez-Vidana, 
    825 F.3d 272
    , 274 (5th Cir. 2016) (considering a pattern
    jury instruction to determine the divisibility of a statute). There are separate
    pattern instructions for transport for sale and offer to transport for sale.
    Compare REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0541 (3d ed.), with
    REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0542 (3d ed.).
    The plea agreement, judgment, and instructions are enough, without
    settled state law to the contrary, to hold that section 13-3405(A)(4) is divisible.
    Because the statute is divisible, the modified categorical approach narrows
    Ibanez-Beltran’s offense to “attempted transportation of marijuana for sale.”
    As discussed, that offense also constitutes a felony under the federal drug laws,
    making it a drug trafficking crime, which is an aggravated felony under section
    1101(a)(43)(B).
    ***
    The petition for review is DENIED.
    7