Dexter Hillocks v. Attorney General United States , 934 F.3d 332 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-2384
_______________
DEXTER ANTHONY HILLOCKS,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(A047-365-390)
Immigration Judge: Walter Durling
_______________
Argued: January 10, 2019
Before: AMBRO, BIBAS, and FUENTES, Circuit Judges
(Opinion filed: August 12, 2019)
James C. Martin
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
Natalie R. Salazar
M. Patrick Yingling [ARGUED]
Reed Smith
10 South Wacker Drive
40th Floor
Chicago, IL 60606
Counsel for Petitioner Dexter Anthony Hillocks
Benjamin Zeitlin
Gregory A. Pennington, Jr. [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General United
States of America
_______________
OPINION OF THE COURT
_______________
2
FUENTES, Circuit Judge.
Petitioner Dexter Anthony Hillocks is a lawful
permanent resident who was convicted of the Pennsylvania
state crime of using a communication facility—i.e., a phone—
to facilitate a felony. The question before us is whether that
crime constitutes either an “aggravated felony” or a
“conviction relating to a controlled substance” under federal
immigration laws. Either would make him removable.
Typically, when deciding whether a particular state
crime falls into those categories, the immigration courts look
to see if the statute matches the federal definition of a
qualifying crime. This is known as the “categorical
approach.” 1
In some instances, however, a particular statute is
divisible into multiple alternate elements—i.e., facts that a jury
must find beyond a reasonable doubt. In that situation, we
instead apply the “modified categorical approach.” The major
difference is that, with the modified approach, courts can look
at the records of conviction to see which of the alternatives
applied in a particular case; under the broader categorical
approach, courts do not look at any court documents at all, and
1
Under our Circuit’s current stated precedent, we do not
apply the categorical approach to questions of whether a
particular crime relates to a controlled substance. However, as
explained more fully in this Opinion, we conclude that the
Supreme Court has directed us to apply the categorical
approach to questions of whether a crime relates to a controlled
substance.
3
instead “presume that the state conviction rested upon the least
of the acts criminalized by the statute.”2
The Board of Immigration Appeals concluded that the
modified categorical approach applied to Hillocks’s conviction
here. Applying that approach, the Board looked to Hillocks’s
plea colloquy and found that Hillocks used a phone to facilitate
the sale of heroin. The Board found that his conviction was
therefore both an aggravated felony and related to a controlled
substance, and accordingly ordered Hillocks removed.
On appeal, Hillocks argues that the Board misapplied
the approach. He asserts that the various felonies that a person
could facilitate with a phone are “means” by which the crime
could be committed, not alternative elements, and that, under
this analysis, his conviction does not make him removable.
As we explain, we agree that the Board incorrectly
applied the modified categorical approach. We will vacate the
order of removal and remand for further proceedings.
I.
Dexter Anthony Hillocks is a native of Trinidad and
Tobago. He was admitted into the United States as a lawful
permanent resident in 2000. His immediate family lives in the
2
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568
(2017) (internal quotations omitted).
4
U.S. as American citizens, and he also has a U.S.-born
girlfriend living in Pennsylvania.
In 2015, Hillocks pleaded nolo contendere to one
violation of 18 Pa. C.S. § 7512(a), “criminal use of [a]
communication facility.” Section 7512(a) provides that:
A person commits a felony of the third degree if
that person uses a communication facility to
commit, cause or facilitate the commission or the
attempt thereof of any crime which constitutes a
felony under this title or under [35 P.S. § 780-
101 et seq.], known as The Controlled
Substance, Drug, Device and Cosmetic Act.
Every instance where the communication facility
is utilized constitutes a separate offense under
this section.
After serving a prison sentence, Hillocks was released into the
custody of Immigration and Customs Enforcement, which
placed him in detention. He was charged with removability
based on his conviction.
Hillocks, representing himself pro se through most of
his administrative proceedings, first appeared before an
immigration judge in October 2015. His case proceeded along
a circuitous path through the administrative system. As
relevant here, an immigration judge found that Hillocks’s
conviction made him removable under both 8 U.S.C.
§ 1227(a)(2)(A)(iii), as an aggravated felony, and 8 U.S.C.
§ 1227(a)(2)(B)(i), as a crime relating to a controlled
substance. The Board upheld the immigration judge’s decision
on appeal. When considering whether Hillocks’s conviction
5
was an aggravated felony, the Board applied what is known in
our Circuit as the “hypothetical federal felony test,” through
which the Board compares a state drug-related offense to the
federal Controlled Substances Act to see if the state crime is
analogous to a federal offense.3
The first step of this analysis is to apply the
aforementioned categorical approach. Here, because § 7512(a)
criminalizes the use of a phone to commit another felony, the
Board concluded that it had multiple alternative elements, and
that each “specific underlying felony is an element of the
offense.”4 Because it found § 7512(a) divisible, the Board
applied the modified categorical approach to this crime.
After reviewing Hillocks’s plea colloquy, the Board
concluded that his conviction related to the sale of heroin. It
further found that this made Hillocks’s conviction under
§ 7512(a) a categorical match with a corresponding federal
crime, namely 21 U.S.C. § 843(b).5 Section 843(b) makes it a
felony to “knowingly or intentionally [] use any
communication facility in committing or in causing or
facilitating the commission of any act or acts constituting a
3
Evanson v. Att’y Gen., 550 F.3d 284, 288-89 (3d Cir.
2012). The “hypothetical federal felony” test is one of two
tests our Circuit uses to assess whether a state drug crime is an
aggravated felony, the other being the “illicit trafficking
element” test. Id. The Board concluded that the latter test did
not apply in this case, and the issue is not before us on appeal.
4
JA 8 (internal quotations omitted).
5
Id.
6
felony under [the Controlled Substances Act].” The Board
held that Hillocks’s conviction was an aggravated felony as
defined under 8 U.S.C. § 1101(a)(43)(B), which makes it an
aggravated felony to “illicit[ly] traffic[] in a controlled
substance . . . including a drug trafficking crime,” and also held
that his conviction “related to a controlled substance.”6 It
therefore upheld Hillocks’s order of removal. Hillocks
appealed to our Court.7
6
The Board made further conclusions, such as that
Hillocks was ineligible for relief under the Convention Against
Torture and had not sufficiently complied with the
requirements for an ineffective assistance of counsel claim.
These issues are not before us on appeal and, as we vacate the
grounds for Hillocks’s removability, moot.
7
The immigration courts had jurisdiction over
Hillocks’s removal proceedings under 8 U.S.C. § 1229a. The
Board has jurisdiction to review his appeal under 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15. We have jurisdiction under 8
U.S.C. § 1252 to review final orders of removal from the
Board. Borrome v. Att’y Gen., 687 F.3d 150, 154 (3d Cir.
2012).
7
II.
We review Board decisions on legal questions de novo.8
We do not give Chevron deference9 to the Board’s legal
determinations as to whether a particular criminal statute is an
aggravated felony or related to a controlled substance.10
Our immigration laws make individuals removable
“based on the nature of their convictions, not based on their
actual conduct.”11 When applying the hypothetical federal
felony test, as the Board did, we first “‘employ a categorical
approach by looking to the statute of conviction, rather than to
the specific facts underlying the crime.’”12 This approach asks
8
We review the Board’s decision. To the extent the
Board affirms and refers to the immigration court’s decision,
we review that decision as well. See Yuan v. Att’y Gen., 642
F.3d 420, 425 (3d Cir. 2011).
9
Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 838 (1984).
10
Borrome, 687 F.3d at 154 (rejecting agency deference
under Chevron).
11
Esquivel-Quintana, 137 S. Ct. at 1567.
12
Id. at 1568 (quoting Kawashima v. Holder, 565 U.S.
478, 483 (2012)).
8
whether the crime “categorically fits within the ‘generic’
federal definition of a corresponding aggravated felony.”13
Critically, the categorical approach does not call for
the consideration of the facts of a particular case. We “presume
that the state conviction ‘rested upon the least of the acts’
criminalized by the statute, and then we determine whether that
conduct would fall within the federal definition of the crime.”14
“[C]ourts ask what elements of a given crime always require—
in effect, what is legally necessary for a conviction.”15 This
approach has a history in the immigration codes dating back to
1913,16 and “ordinarily works to promote efficiency, fairness,
and predictability in the administration of immigration law.”17
Courts “modify” this approach where a crime has
multiple alternative elements—facts that a prosecutor must
prove, and a jury must find, beyond a reasonable doubt.18 The
13
Id. (quoting Moncrieffe v. Holder, 569 U.S. 184, 190
(2013)).
14
Id. (quoting Johnson v. United States, 559 U.S. 133,
137 (2010)).
15
Sessions v. Dimaya, 138 S. Ct. 1204, 1211 n.1 (2018).
16
Alina Das, The Immigration Penalties of Criminal
Convictions: Resurrecting Categorical Analysis in
Immigration law, 86 N.Y.U. L. Rev. 1669, 1690-1702 (2011).
17
Mellouli v. Lynch, 135 S. Ct. 1980, 1986-87 (2015).
18
Descamps v. United States, 570 U.S. 254, 269-70
(2013); see Mathis v. United States, 136 S. Ct. 2243, 2249
9
modified approach allows adjudicators to look into a limited
set of documents to see which of the alternatives served as the
basis for the individual’s conviction.19 Elements are distinct
from means, which are simply different ways an individual can
commit an underlying crime, and which do not need to be
proven beyond a reasonable doubt at trial. The modified
approach “helps implement the categorical approach” when a
defendant was convicted of violating a divisible statute.20 It
works “not as an exception, but instead as a tool [that] retains
the categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime.”21 “Off limits to the
adjudicator . . . is any inquiry into the particular facts of the
case.”22
The modified approach only applies when (1) the
statute of conviction has alternative elements, and (2) “at least
one” of the alternative divisible categories would, by its
elements, be a match with a generic federal crime.23
(2016) (“A single statute may list elements in the alternative,
and thereby define multiple crimes.”).
19
See Mathis, 136 S. Ct. at 2249.
20
Descamps, 570 U.S. at 263.
21
Id.
22
Mellouli, 135 S. Ct. at 1986 n.4.
23
United States v. Brown, 765 F.3d 185, 191 (3d Cir.
2014) (quoting Descamps, 570 U.S. at 264).
10
So courts must determine whether the statute’s “listed
items are [alternative] elements” that need to be found
unanimously beyond a reasonable doubt, or are alternative
means upon which a jury need not agree to sustain a
conviction.24 For example, in Mathis v. United States, the
Supreme Court held that a burglary statute involving unlawful
entry into “any building, structure, or land, water, or air
vehicle” simply listed alternate means, not elements that
created separate crimes.25
Even if a statute is divisible, the modified categorical
approach is only appropriately applied where at least one of the
divisions matches a qualifying federal crime.26 If all the
divided categories are still broader than a generic federal
crime, then the modified categorical approach simply creates a
nesting doll that replicates the original problem instead of
resolving it.27 With this framework in mind, we turn to the
particulars of Hillocks’s appeal, beginning with the Board’s
conclusion that his conviction constitutes an aggravated
felony.
24
Mathis, 136 S. Ct. at 2256.
25
Id. at 2250 (internal quotations and citation omitted).
26
Brown, 765 F.3d 185 at 191.
27
See id., United States v. Dahl, 833 F.3d 345, 357 (3d
Cir. 2016).
11
A. Aggravated Felony
Under the non-modified categorical approach, an
undivided § 7512(a) plainly does not constitute an aggravated
felony. Pennsylvania’s § 7512(a) requires that a defendant (1)
use a phone28 (2) to facilitate a felony under either (a)
Pennsylvania’s criminal code29 or (b) its Controlled Substance,
Drug, Device and Cosmetic Act (the “Pennsylvania Controlled
Substance & Drug Act”).30 As Hillocks points out, this
encompasses crimes such as “possessing a trade secret with the
intent to wrongfully deprive the owner of control of it.”31 A
felony, to be sure, but not an aggravated felony as defined by
8 U.S.C. § 1101(a)(43). A person could violate § 7512(a) by
facilitating a non-aggravated felony, and using a phone to
facilitate a non-aggravated felony is not itself an aggravated
felony. Therefore, under the “least of the acts” necessary to
sustain a conviction under § 7512(a), a conviction under it
would not constitute an aggravated felony under the
categorical approach.
The Board, however, found that § 7512(a) was a crime
with alternative elements, requiring the modified categorical
approach. In its decision, the Board found that § 7512(a) was
28
Or another communications facility.
29
Or, more specifically, any crime found in Title 18 of
Pennsylvania’s Consolidated Statutes. See 18 Pa. C.S.
§ 7512(a).
30
35 Pa. Stat. and Cons. Stat. Ann § 780-101 et seq.
31
Pet’r Br. at 20 (citing 18 Pa. C.S. § 3930).
12
divisible into categories consisting of each possible underlying
felony. To determine into which of the purported categories
Hillocks’s conviction fit, the Board reviewed Hillocks’s plea
colloquy, and determined that he used a communications
facility to facilitate the sale of heroin. Our precedent, however,
suggests there are problems with the Board’s use of the
modified categorical approach here.
To begin that analysis, we first consider the possible
elemental categories into which § 7512(a) might divide. If
§ 7512(a) is divisible at all, the most obvious candidates are the
two alternative categories listed by name in the statute: (a)
Pennsylvania’s general criminal code32 or (b) the Pennsylvania
Controlled Substance & Drug Act.33 For reasons already
discussed, facilitating any felony found in Pennsylvania’s
general criminal code cannot serve as the basis for an
aggravated felony determination because not all felonies in that
title would rise to the level of aggravated felonies.
The second alternative category, facilitating a felony
found in Pennsylvania’s Controlled Substance & Drug Act, is
also not a categorical match with a federal aggravated felony.
The Pennsylvania Controlled Substance & Drug Act makes it
a crime to distribute not only controlled substances, but also
non-controlled substances. For example, the Pennsylvania
Controlled Substance & Drug Act also makes it a crime to
distribute “designer drugs,” which are statutorily defined as a
I.e., any crime found in Title 18 of Pennsylvania’s
32
Consolidated Statutes. See 18 Pa. C.S. § 7512(a).
33
35 Pa .Stat. and Cons. Stat. Ann § 780-101 et seq.
13
substance “other than a controlled substance” that produces an
effect substantively similar to controlled substances.34 Thus, a
conviction under the Pennsylvania Controlled Substance &
Drug Act—by definition—does not necessarily involve a
“controlled substance.” That means it cannot be a match with
the federal aggravated felony indicated by the Board, which
concerns only controlled substances. Because neither of these
categories, by the least of their acts, match with a
corresponding federal felony, they cannot justify resort to the
modified categorical approach.35
The categories would still be overbroad even if the
Board had gone one step further and subdivided that latter
category into (1) controlled substances under the Pennsylvania
Controlled Substance & Drug Act, and (2) non-controlled
substances under the Act. This is because Pennsylvania
controlled substance list incorporates several drugs that are not
on the federal list.36 The Government concedes that
“Pennsylvania lists more substances on its schedules than the
34
Id. § 780-102(b).
35
Brown, 765 F.3d at 191.
36
Citing to the different drug schedules in his brief,
Hillocks asserts that, at the time of his conviction, two drugs—
dextrorphan and 1-(3-trifluoromethylphenyl) piperazine—
appeared in the Pennsylvania drug schedules but not the federal
schedules. Pet’r Br. 22-23. This Court previously made note
that those two drugs did not appear on the federal schedules.
See Rojas v. Atty. Gen., 728 F.3d 203, 206 (3d Cir. 2013)(en
banc). As we explain below, Rojas has since been abrogated
on other grounds.
14
federal.”37 That means that an individual could be convicted
under the Pennsylvania act for a substance that would not be a
controlled substance under federal law—making
Pennsylvania’s act broader. We have previously found that an
analogous statute with the same problem did not constitute a
categorical match with a federal crime, and hence was not an
aggravated felony.38
In that case, Borrome v. Attorney General, this Court
faced the question whether a conviction under the federal
Food, Drug and Cosmetic Act’s wholesale prescription drug
distribution statutes necessarily involved a “controlled
substance” such that it matched with the federal Controlled
Substance Act. Finding “daylight” between the two acts’ lists,
we held that “some prescription drugs do contain controlled
substances, [but the Act] make[s] no distinction between
convictions involving prescription drugs that do contain
controlled substances and those that do not.”39 Because the
convicting court “did not necessarily have to find whether the
prescription[] drugs involved also contained controlled
substances,” we found that a conviction there was not a match
for the Controlled Substance Act, and therefore could not
constitute an aggravated felony.40 The same reasoning applies
here: because the Pennsylvania controlled substances statute
criminalizes drugs not on the federal schedules, a conviction
37
Resp. Br. 16.
38
Borrome, 687 F.3d at 158.
39
Id.
40
Id at 162.
15
under Pennsylvania’s statute would not necessarily constitute
a categorical match.41 This set of divisions, then, does not
support use of the modified categorical approach.
The Government concedes those possible categories
fail and does not argue them before us. It relies on a different
theory, however. It asserts that the appropriate categories are
not the two statutory codes listed by name in § 7512(a), or
some variation thereof, but every felony under either of them,
individually. Under the Government’s theory, every individual
felony constitutes a separate, alternate element within
§ 7512(a).
The Government’s reasoning is thus: In order to
prove a crime at trial, the prosecution must prove every
element beyond a reasonable doubt. The elements of § 7512(a)
are: (1) the defendant knowingly and intentionally used a
communication facility; (2) the defendant knowingly,
intentionally, or recklessly facilitated an underlying felony;
and (3) “the underlying felony occurred.”42 The only way to
41
The Board argues that nevertheless “the identity of
the specific controlled substance is an element” of the crime
and thus divisible in that regard. Resp. Br. 16. That is a
restatement of its primary argument—that the divisible
elements are each specific felony—and not an argument in
support of a proposed category of alternate elements in which
“controlled substances under the Pennsylvania Controlled
Substance & Drug Act” is one of the categories.
42
Commonwealth. v. Moss, 852 A.2d 374, 382 (Pa.
Super. Ct. 2004).
16
prove that the underlying felony occurred beyond a reasonable
doubt is to prove that the individual elements of that felony
occurred beyond a reasonable doubt. Because the elements of
each individual felony must be proven beyond a reasonable
doubt, and because each individual felony is different, that
means that each felony must constitute a separate,
distinguishable element under § 7512(a). Thus, says the
Government, each individual felony constitutes a separate
alternate element to which the modified categorical approach
applies.
In support, the Government points to 21 U.S.C.
§ 843(b), a federal statute with some similarities to
Pennsylvania’s § 7512(a).43 We held in United States v.
Johnstone that § 843(b) requires the government to prove “(1)
knowing or intentional (2) use of a communication facility (3)
to commit, cause or facilitate the commission of a drug
felony.”44 Johnstone found fault with a jury instruction that
the final element need be met only by a preponderance of the
evidence, and we held that the final element needed to be
proven beyond a reasonable doubt.45 Pennsylvania courts have
cited that decision in their own analysis of § 7512(a), finding
the comparison to § 843(b) helpful. Citing Johnstone and §
843(b), the Pennsylvania Superior Court held in
Commonwealth v. Moss that the elements of § 7512(a) are “(1)
43
And which the Board in fact identified as the federal
categorical match with § 7512(a).
44
United States v. Johnstone, 856 F.2d 539, 542 (3d.
Cir. 1988).
45
Id.
17
[defendant] knowingly and intentionally used a
communication facility; (2) [defendant] knowingly,
intentionally or recklessly facilitated an underlying felony; and
(3) the underlying felony occurred.”46
There are several problems with the Government’s
reliance on Johnstone and Moss, however. First is the fact that
neither Moss nor Johnstone were categorical-approach cases,
and so did not take up the question of whether either § 843(b)
or § 7512(a) were divisible. The only decision cited by the
parties that did consider § 843(b) in the context of the
categorical approach, United States v. Maldonado, concluded
that § 843(b) was indivisible—making the modified
categorical approach inappropriate. 47 Further, Johnstone and
Moss only stand for the proposition that a prosecutor must
show beyond a reasonable doubt that any felony a defendant
facilitated actually occurred. These holdings do not prohibit a
prosecutor—for either § 843(b) or § 7512(a)—from offering
up multiple facilitated felony options to a jury, nor for jury
members to disagree on which felony the defendant actually
facilitated. If one juror believes the defendant facilitated
Felony A, and another juror believes the defendant facilitated
Felony B, then Johnstone and Moss have no problem with that
outcome, as long as the prosecutor shows beyond a reasonable
doubt that both occurred.
46
Moss, 852 A.2d at 382.
47
United States v. Maldonado, 636 F. App’x 807, 811
(2d Cir. 2016) (“Because section 843(b) does not contain
alternative elements, it is an indivisible statute.”).
18
The Government also points to Pennsylvania’s model
jury instructions, which read:
The defendant has been charged with criminal
use of a communication facility. To find the
defendant guilty of this offense, you must find
that the following elements have been proven
beyond a reasonable doubt:
…
Third, that the crime of [crime] did, in fact, occur.48
The Government argues that, by listing the category “[crime]”
to be filled in, this implies that the third element under
§ 7512(a) requires that the jury must unanimously find that a
single specified underlying felony occurred. That would
make the underlying felony an element of § 7512(a), and not a
means.
However, this argument is not consistent with our
precedent, or other persuasive authority. In United States v.
Steiner, we concluded that the model Pennsylvania Jury
Instructions for burglary did “not require the jury to
unanimously agree on the nature of the location; it can be a
building, or occupied structure, or a separately secured or
occupied portion of a building or structure.”49 And certainly it
is at least as reasonable to believe two jurors could disagree
48
Criminal Use of a Communication Facility, Pa. SSJI
(Crim), § 15.7512 (2016).
49
847 F.3d 103, 120 (3d Cir. 2017) (internal quotations
and citation omitted).
19
about which felony an individual facilitated as it is to believe
they could disagree over which building a burglar broke into.50
The Second Circuit in Harbin v. Sessions, a decision
that relies in part on this Court’s own decision in Borrome,
considered a case with very similar facts as this matter. There,
model jury instructions included an element that read: “on or
about [date], in the county of [county], the defendant,
[defendant’s name], sold [specify].”51 The Second Circuit
concluded that “[a]lthough the instructions include a blank
with the word ‘specify’ in it, allowing a judge to name the
substances at issue in the case, the instructions do not say it is
impermissible to identify more than one substance.”52 Further,
“if the judge may allow the jurors a choice between different
substances, the statute does not create separate crimes—it
creates separate means of committing the same crime.”53 The
same logic applies here; nothing suggests that the model
instructions require a jury to find that one and only one
underlying felony has occurred. Section 7512(a)’s model
instructions do not support the argument that the “[crime]”
notation suggests that the underlying felony constitutes a
particular element.
50
See Mathis, 136 S. Ct. at 2250 (finding that “a jury
need not agree on which . . . locations w[ere] actually” burgled
in Iowa’s burglary statute, and thus the specific locations were
means, not elements).
51
Harbin v. Sessions, 860 F.3d 58, 68 (2d Cir. 2017).
52
Id.
53
Id.
20
Beyond its articulated arguments, the Government’s
position does not withstand scrutiny when viewed in the
context of precedent in this and other Circuits. To begin,
courts, including our Court, have typically held that alternate
elements must be explicitly identified in the statute’s text, not
read into the language. The Supreme Court in Mathis held that
a divisibility analysis is required only as far as a statute is
“alternatively phrased,”54 and the Fifth Circuit has held that
“[t]he requirement that a statute must be meaningfully
alternatively phrased in the first place is implicit in the Mathis
Court’s analysis.”55 In Descamps, the Supreme Court stated
that “‘the modified categorical approach that we have
approved permits a court to determine which statutory phrase
was the basis for the conviction.’”56 There is only one textual
clue supporting the proposition that § 7512(a) is divisible: the
disjunctive “or” that, at most, separates the statute into a felony
under either Pennsylvania’s criminal title or its Controlled
Substance & Drug Act.
When faced with a similar issue, we have previously
held that a Pennsylvania statute making it a felony to
communicate a threat to “commit any crime of violence with
intent to terrorize another” was indivisible.57 We held that,
54
136 S. Ct. at 2256.
55
United States v. Urbina-Fuentes, 900 F.3d 687, 694
(5th Cir. 2018).
56
570 U.S. at 263 (quoting Johnson, 559 U.S. at 144).
57
Brown, 765 F.3d at 193 (citing 18 Pa C.S. §
2706(a)(1)).
21
while some crimes of violence would constitute an aggravated
felony, because “[the Pennsylvania statute] does not list each
crime of violence,” it was indivisible.58
The Government’s position also does not comport
with other markers that indicate when a crime has multiple
elements, such as whether different divisible categories result
in different punishments. In United States v. Abbott, we
addressed a provision of the Pennsylvania Controlled
Substance & Drug Act, 35 Pa. Stat. and Cons. Stat. Ann. § 780-
113(a)(30), and concluded that it was divisible as to each
controlled substance, an argument that mirrors the
Government’s in this case.59 However, Abbott’s reason for
doing so was because “the type of controlled substance
involved in a violation of 35 Pa. Stat. Ann. § 780-113(a)(30)
alters the prescribed range of penalties. Accordingly, the type
of drug, insofar as it increases the possible range of penalties,
is an element of the crime.”60
Here, by contrast, the penalty for § 7512(a) does not
change depending on the underlying felony. In circumstances
where the penalties do not vary, other circuits have found that
the statute is not divisible.61 In Harbin, a case which, like
58
Id.
59
United States v. Abbott, 748 F.3d 154, 159 (3d Cir.
2014); see also Singh v. Att’y Gen., 839 F.3d 273, 282 (3d Cir.
2016).
60
Abbott, 748 F.3d at 159.
61
See, e.g., United States v. McKibbon, 878 F.3d 967,
975 (10th Cir. 2017) (holding statute indivisible where it “does
22
Abbott, concerned a list of controlled substances, the Second
Circuit found that because the statute “carries the same
penalties for each violation . . . each controlled substance is a
mere ‘means’ of violating the statute, not a separate alternative
element.”62
In short, precedent and persuasive authority decidedly
fall against the Board here. Pennsylvania’s § 7512(a) does not
have enumerated categories that suggest alternate elements, it
does not provide different punishments depending on the
underlying crime, and this Court and others have rejected the
significance the Government places on the structure of the
model jury instructions. We therefore conclude that the
underlying felonies serving as a basis for a conviction under
§ 7512(a) are means, not separate elements.63
Because the Government has not identified divisible
categories, at least one of which would match a generic federal
not provide different punishments depending on” the proposed
alternate elements).
62
Harbin, 860 F.3d at 65.
63
Even if we were to agree that each individual felony
did constitute a separate element under § 7512(a), there would
still be a further question as to whether § 7512(a) is a true
categorical match with the corresponding federal crime,
§ 843(b). Hillocks argues that the two have different scienter
requirements. Having already found that § 7512(a) cannot by
the least of its acts constitute an aggravated felony under the
categorical approach, we need not further consider the scienter
issue.
23
aggravated felony, the modified categorical approach is not
appropriately applied to § 7512(a). And under the categorical
approach, Hillocks’s conviction under § 7512(a) does not
constitute an aggravated felony, because “the least of its acts”
do not have a corresponding match with a comparable federal
aggravated felony.
B. Relating to a Controlled Substance
The Board also concluded that Hillocks’s conviction
was related to a controlled substance, which is a separate
ground for removal.64 Our precedent currently does not apply
the categorical approach to determine whether a state statute
relates to a controlled substance. Instead, we look at the
conviction documents to determine whether a federally
controlled substance was involved “in the same way as the
existence of the conviction itself is normally established.”65
This analysis was laid out in our decision in Rojas v. Attorney
General.66
64
The Board argues that Hillocks has failed to exhaust
this argument, because he did not explicitly reference it in his
appeal from the immigration judge to the Board. However, the
Board addressed it sua sponte in its decision, JA 7 (affirming
immigration judge’s “conclusion that [Hillocks’s] conviction .
. . renders him removable under section 1227(a)(2)(B)(i)), and
we have held that “we have jurisdiction” when “the BIA
considers the issue sua sponte.” Lin v. Att’y Gen, 543 F.3d
114, 123-24 (3d Cir. 2008).
65
Rojas, 728 F.3d at 216.
66
Id.
24
However, after Rojas was decided, the Supreme Court
issued Mellouli v. Lynch, which applied the categorical
approach to determine whether a state conviction related to a
controlled substance.67 The Government here does not contest
that Mellouli applied the categorical approach.68 It instead
argues that the Court need not consider it, because Hillocks
would fail under either test. However, we have already
rejected the Government’s categorical approach arguments as
they relate to whether his conviction is an aggravated felony.
Mellouli’s impact on Rojas dictates the outcome here.
And Mellouli does apply the categorical approach to
the question of whether a state crime relates to a controlled
substance.69 It stated that “[t]he categorical approach has been
applied routinely to assess whether a state drug conviction
triggers removal under the immigration statute” and that
“[u]nder the categorical approach . . ., Mellouli’s drug-
paraphernalia conviction does not render him deportable”
because the state conviction was not categorically limited to
federally-defined controlled substances.70 We therefore
conclude that Mellouli abrogated Rojas’s test, and directs us to
67
135 S. Ct. at 1986-89.
Resp. Br. 21 (“In Mellouli, the Supreme Court
68
acknowledged the use of the modified categorical approach . .
. .”).
69
135 S. Ct. at 1986-1989.
70
Id. at 1988.
25
apply the categorical approach to the question of whether a
particular state offense relates to a controlled substance.71
The question of whether § 7512(a) relates to a
controlled substance is not materially distinct from the
question of whether it is an aggravated felony, and the same
reasoning applies with equal force to both. The analysis is
therefore the same and need not be repeated here. For the same
reasons we hold that § 7512(a) does not categorically
constitute an aggravated felony, we also hold that it does not
relate to a controlled substance.
Because, applying the categorical approach,
Hillocks’s conviction under § 7512(a) is neither an aggravated
felony nor related to a controlled substance, it cannot serve as
the basis for removal, as the Board held it did.
III.
For the foregoing reasons, Hillocks’s order of removal
will be vacated, and this matter will be remanded for further
proceedings consistent with this Opinion.
71
This abrogation only extends to the appropriate test to
determine whether a state crime relates to a controlled
substance. Rojas otherwise remains good law in this Circuit.
26