Jorge Romero-Millan v. William Barr

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
JORGE ROMERO-MILLAN,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY G ENERAL,
Respondent,
ERNESTO H ERNANDEZ CABANILLAS,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY G ENERAL,
Respondent,
MARCO ANTONIO G ARCIA-PAZ,
Petitioner,
v.
WILLIAM P. BARR, ATTORNEY G ENERAL,
Respondent.
No. CV-20-0128-CQ
Filed April 19, 2022
JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
United States District Court for the District of Arizona
Nos. BIA-1 : A077-138-666; BIA-1 : A095-285-170; BIA-1 : A034-063-749
Certified Questions from the
United States Court of Appeals for the Ninth Circuit
Romero-Millan v. Barr, 958 F.3d 844 (9th Cir. 2020)
QUESTIONS ANSWERED IN PART
COUNSEL:
Gabriel G. Leyba (argued), Law Office of Gabriel G. Leyba, Phoenix,
Attorney for Jorge Romero-Millan
Roberta Wilson, Law Office of Monika Sud-Devaraj & Associates, Phoenix,
Attorney for Ernesto Hernandez Cabanillas
Matthew H. Green, Law Office of Matthew H. Green, Tucson, Attorney for
Marco Antonio Garcia-Paz
Brian Boynton, Acting Assistant Attorney General, Civil Division, Jennifer
J. Keeney, Assistant Director, Imran R. Zaidi (argued), Criminal
Immigration Team Office of Immigration Litigation Civil Division, U.S.
Department of Justice, Washington, D.C., Attorneys for William P. Barr
Mark Brnovich, Arizona Attorney General, Nicholas Klingerman (argued),
Chief Counsel, Southern Arizona White Collar and Criminal Enterprise
Section, Tucson, Jillian Francis, Assistant Attorney General, Criminal
Appeals Section, Phoenix, Attorneys for Amicus Curiae Arizona Attorney
General
Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued),
Assistant Federal Public Defender, District of Arizona, Phoenix, Attorneys
for Amici Curiae Arizona Attorneys for Criminal Justice and the Federal
Public Defender for the District of Arizona
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
BOLICK, LOPEZ, and PELANDER (RETIRED) joined. ∗
JUSTICE BEENE, Opinion of the Court:
¶1 The United States Court of Appeals for the Ninth Circuit
certified the following questions to this Court:
1. Is Arizona’s possession of drug paraphernalia statute, A.R.S.
§ 13-3415, divisible as to drug type?
2. Is Arizona’s drug possession statute, A.R.S. § 13-3408, divisible as to
drug type?
3. Put another way, is jury unanimity (or concurrence) required as to
which drug or drugs listed in A.R.S. § 13-3401(6), (19), (20), or (23)
was involved in an offense under either statute?
¶2 Because the “divisibility” of a criminal statute pertains solely
to federal law, and no Arizona court has addressed the issue, we
improvidently accepted the first two questions and now decline to answer
them. As to the third question, we decline to answer it as it pertains to
§ 13-3415, but we answer the question in the affirmative as it relates to
§ 13-3408. 1
BACKGROUND
¶3 Jorge Romero-Millan, Ernesto Hernandez Cabanillas, and
Marco Antonio Garcia-Paz 2 are all Mexican natives who were lawfully
∗
Justice William G. Montgomery recused himself from this
matter. Pursuant to article 6, section 3 of the Arizona Constitution, the
Honorable John Pelander, Justice of the Arizona Supreme Court (Ret.), was
designated to sit in this matter.
1 We apply the statutes in effect at the time the offense was
committed for which the defendant is being sentenced. State v. Newton, 200
Ariz. 1, 2 ¶ 3 (2001).
2 Although Garcia-Paz died shortly before issuance of this
Opinion, Cabanillas’s case involves the same issues that we address below.
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
residing in the United States. Romero-Millan was convicted of possession
or use of drug paraphernalia in violation of § 13-3415. Cabanillas and
Garcia-Paz were convicted of possession of a narcotic drug for sale in
violation of § 13-3408(A)(2). Based on their drug-related convictions, the
immigration court ordered them to be removed from the country. The
Board of Immigration Appeals affirmed.
¶4 In the subsequent appeals, the Ninth Circuit consolidated the
cases and concluded that removability depended on whether Arizona’s
possession of drug paraphernalia statute (§ 13-3415) and Arizona’s
possession of narcotic drugs statute (§ 13-3408) are divisible as to drug type.
Finding no controlling Arizona precedent addressing the issue, the Ninth
Circuit certified the above-stated questions to this Court. Romero-Millan v.
Barr, 958 F.3d 844, 849 (9th Cir. 2020).
¶5 We have jurisdiction under article 6, section 5(6) of the
Arizona Constitution and A.R.S. § 12-1861.
DISCUSSION
A.
¶6 Section 12-1861 authorizes this Court to answer questions of
law certified to it by a federal court if the proceedings before the certifying
court involve questions of Arizona law that lack controlling precedent in
decisions from this Court or the court of appeals. Certified questions must
be questions of state law. § 12-1861 (“The supreme court may answer
questions of law . . . of this state which may be determinative of the cause
then pending in the certifying court.” (emphasis added)).
¶7 After examining the entire record and considering the briefs
and oral arguments of the parties, we decline to answer the first two
certified questions. These questions ask us to analyze the “divisibility” of
two Arizona criminal statutes. Under federal law, whether a criminal
statute is divisible requires the court to determine if the statute “sets out
one or more elements of the offense in the alternative” as opposed to listing
alternative methods or means of committing the crime. Descamps v. United
States, 570 U.S. 254, 257 (2013). However, the divisibility analysis the Ninth
Circuit asks us to perform is not conducted under Arizona law. Indeed, no
Arizona court has ever discussed the divisibility of a criminal statute.
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
Neither of the first two certified questions raises questions under Arizona
state law. Accordingly, we vacate the order accepting jurisdiction of those
questions.
B.
¶8 The remaining question asks whether jury unanimity
regarding the identity of a specific drug is required when the state seeks a
conviction under the drug paraphernalia and narcotic drug statutes. See
§§ 13-3408, -3415. We address this question as it relates to these statutes in
turn.
¶9 Whether the fact-finder must identify a specific drug to obtain
a conviction under § 13-3415 was discussed in State v. Soza, 249 Ariz. 13(App. 2020). In that case, Soza was charged with, among other offenses,
four counts of possession of drug paraphernalia: baggies for
methamphetamine and heroin and scales for methamphetamine and
heroin. Id. at 14 ¶ 4. The jury found Soza guilty as charged. Id.¶10 In deciding whether imposing multiple punishments for the
same offense violates the Double Jeopardy Clause, the court of appeals
determined that the “allowable unit of prosecution” for § 13-3415 was based
on the “act of possessing” regardless of the number or kind or intended use
of the paraphernalia possessed. Id. at 14 ¶ 6, 18 ¶ 23. The court concluded
that Soza committed only one violation of § 13-3415 by simultaneously
possessing the baggies and a scale because the drug paraphernalia statute
“does not refer to a specific type of drug crime, and the title of the statute refers
simply to ‘[p]ossession . . . of drug paraphernalia’ without further
distinction.” Id. at 17 ¶ 19 (emphasis added). This determination was also
supported by the fact that “[t]he language of A.R.S. § 13-3415 makes it
conceivable . . . that a defendant could be found guilty of possessing drug
paraphernalia without evidence linking the paraphernalia to a specific drug
offense.” Id. (emphasis added). The court of appeals ultimately concluded
that committing an offense under § 13-3415(A) does not turn on a
defendant’s intent to commit a particular drug crime. Id.
¶11 Although Soza could be interpreted as answering the certified
question relating to § 13-3415, we demur in making this determination. We
reach this conclusion because the issue decided in Soza was not appealed
by the state and consequently not reviewed by this Court. Given this
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
procedural history, we are reticent to embrace the resolution reached in
Soza because its holding may have unintended consequences that were not
fully addressed by the parties. We prefer to resolve the issue of whether
jury unanimity regarding the identity of a specific drug is required under
§ 13-3415 in the context of a case that directly raises the issue. Accordingly,
the Ninth Circuit should discern whether jury unanimity regarding the
identity of a specific drug is required under Arizona’s possession of drug
paraphernalia statute based on existing Arizona law. See Kaiser v. Cascade
Cap., LLC, 989 F.3d 1127, 1131–32 (9th Cir. 2021) (“When the application of
a federal statute depends on state law, ‘federal authorities must apply what
they find to be the state law.’ Absent controlling precedent from the state
supreme court, a federal court must ‘predict how the highest state court
would decide the [state law] issue using intermediate appellate court
decisions . . . .’” (first quoting Comm’r v. Bosch’s Est., 387 U.S. 456, 465 (1967);
then quoting Judd v. Weinstein, 967 F.3d 952, 955–56 (9th Cir. 2020))).
¶12 Next, we consider whether jury unanimity regarding the
identity of a specific drug is required for a conviction under Arizona’s
narcotic drug possession statute. Answering this question requires us to
interpret § 13-3408.
¶13 “Our task in statutory construction is to effectuate the text if
it is clear and unambiguous.” BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244
Ariz. 17, 19 ¶ 9 (2018). Ambiguity arises when the language is reasonably
susceptible to differing interpretations. See Lewis v. Debord, 238 Ariz. 28, 30–
31 ¶ 8 (2015). When a statute is ambiguous, “we consult ‘secondary
interpretation methods, such as the statute’s subject matter, historical
background, effect and consequences, and spirit and purpose.’” Redgrave
v. Ducey, 251 Ariz. 451, 457 ¶ 22 (2021) (quoting Rosas v. Ariz. Dep’t of Econ.
Sec., 249 Ariz. 26, 28 ¶ 13 (2020)). “[R]elated statutes on the same subject”
also inform our interpretation. Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11
(2019).
¶14 The relevant portion of § 13-3408 criminalizes possession or
use of a narcotic drug, possession of a narcotic drug for sale, manufacture
of a narcotic drug, or transportation of a narcotic drug for sale.
§ 13-3408(A). “Narcotic drugs” are defined in § 13-3401(20), which lists
ninety-five substances that constitute a “narcotic drug” under Arizona’s
criminal code.
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
¶15 We conclude § 13-3408 is ambiguous because it may be
reasonably read to require that a jury unanimously determine that a specific
drug be found to return a guilty verdict but could also reasonably be read
to require only that a jury unanimously find that any one of the narcotic
drugs listed in § 13-3401(20) is sufficient for a conviction. Because the
language of § 13-3408(A) is reasonably susceptible to two differing
interpretations and therefore ambiguous, we must turn to secondary
methods of statutory construction to ascertain its meaning. See State ex rel.
Montgomery v. Harris, 237 Ariz. 98, 101 ¶ 12 (2014). Employing those
methods, we conclude that jury unanimity regarding the identity of a
specific drug is required for a conviction under § 13-3408.
¶16 The statute’s context, structure, and effects support this
conclusion. Notably, Arizona’s drug-specific penalties illustrate that drug
identity is an element of a narcotic drug offense. The sentencing scheme for
§ 13-3408 provides different punishments for different drugs depending on
the particular threshold amount alleged by the state. Section 13-3408(D)
requires that
[i]f the aggregate amount of narcotic drugs involved in one
offense or all of the offenses that are consolidated for trial
equals or exceeds the statutory threshold amount, a person
who is convicted of a violation of subsection A . . . is not
eligible for suspension of sentence, probation, pardon or
release from confinement on any basis until the person has
served the sentence imposed by the court . . . .
Concomitant with this statute, § 13-3401(36) defines “threshold amount,”
and lists eight subsections that assign a specific threshold amount to each
particular substance. For example, the threshold amount for heroin is one
gram; for cocaine, nine grams; for cocaine base, seven hundred fifty
milligrams; and for phencyclidine (PCP), four grams. See § 13-3401(36)(a)–
(d).
¶17 Accordingly, if the state alleged a threshold amount for a
narcotic set forth in § 13-3401(36), the jury would have to unanimously
agree that the threshold amount had been proven for that particular
narcotic. If the state fails to prove the alleged threshold amount, the
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
defendant would not be subject to § 13-3408(D)’s probation disqualifier.
Because the threshold amount finding precludes probation as a sentencing
option and increases the mandatory minimum punishment, it becomes an
additional element the state must prove, and the jury must find it beyond a
reasonable doubt. See Alleyne v. United States, 570 U.S. 99, 102 (2013) (“[A]ny
fact that increases the mandatory minimum [sentence] is an ‘element’ that
must be submitted to the jury.”); A.R.S. § 13-3420.
¶18 This interpretation is supported by Arizona’s long-standing
precedent of allowing multiple convictions for contemporaneous violations
of § 13-3408 involving multiple narcotic drugs. See, e.g., State v. Wright, 239
Ariz. 284, 284 ¶ 1, 285 ¶ 6 (App. 2016) (affirming multiple convictions for
possession of narcotic drugs for sale involving cocaine and heroin based on
the same seizure); State v. Siplivy, 228 Ariz. 305, 306 ¶¶ 1–2 (App. 2011)
(affirming convictions for two counts of possession of narcotic drugs where
the defendant had both morphine and oxycodone); State v. Tarango, 182
Ariz. 246, 247–49 (App. 1994) (affirming convictions on two counts of
possession of narcotic drugs for sale where the defendant possessed both
heroin and cocaine); State v. Padilla, 176 Ariz. 81, 82, 85–86 (App. 1993)
(affirming convictions for separate counts involving heroin and cocaine
arising from the same purchase); State v. Aikins, 17 Ariz. App. 328, 330, 336
(1972) (affirming convictions for possession for sale of heroin and cocaine
where both substances were found in the same seizure).
¶19 An examination of § 13-3408’s legislative history also
indicates that the legislature sought to criminalize the possession of a single
narcotic drug. Previously, § 13-3408 criminalized the possession of “any”
proscribed drug, see A.R.S. § 36-1002 (1978), 3 however, the legislature later
modified the statute by prohibiting the possession of “a” drug instead of
“any” drug, see A.R.S. § 13-3408 (1987). Although under Arizona law, “a”
and “any” generally embrace both the singular and the plural, see A.R.S.
§ 1-214(B), the legislature’s modification of the narcotic drug statute in this
way demonstrates an intent to change the statute to encompass the singular
form of that noun. Additionally, several other statutes similarly reference
the “possession or use of a narcotic drug in violation of § 13-3408.” A.R.S.
§ 13-3422(I)(4) (emphasis added); e.g., A.R.S. §§ 31-281; 41-1604.07, -1604.16.
3 In 1978, § 13-3408 was numbered as § 36-1002.
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JORGE ROMERO-MILLAN, et al. V. WILLIAM BARR
Opinion of the Court
¶20 Finally, analyzing this question under our “unit of
prosecution” jurisprudence leads to the same result. See State v. Jurden, 239
Ariz. 526, 529 ¶ 11 (2016). The Double Jeopardy Clause of the United States
and Arizona Constitutions “protects against multiple punishments for the
same offense.” Id. ¶ 10. “[I]f multiple violations of the same statute are
based on the same conduct, there can be only one conviction if there is a
single offense.” Id. ¶ 11. In such an instance, “the statutory definition of
the crime determines the scope of conduct for which a discrete charge can
be brought,” which has been referred to as the “allowable unit of
prosecution.” Id. (quoting United States v. Universal C.I.T. Credit Corp., 344
U.S. 218, 221 (1952)).
¶21 Relying on the interpretive principles previously mentioned,
supra ¶¶ 15–19, we read the unit of prosecution under § 13-3408 to be “drug-
based” because the statute’s focus is to criminalize the different methods of
possessing a narcotic drug. See § 13-3408(A). Unlike the result reached in
Soza, where the court concluded that “the act of possessing drug
paraphernalia best reflects the unit of prosecution” and found that although
Soza possessed multiple items of drug paraphernalia he “committed only
one violation of A.R.S. § 13-3415(A),” Soza, 249 Ariz. at 18 ¶ 23, here, each
of the ninety-five substances listed in § 13-3401(20) are designated as a
narcotic drug independently, and possessing any one of these narcotic
drugs constitutes a separate and independent criminal offense. Because the
primary focus of the statute is to prevent the possession of narcotic drugs,
there may be multiple convictions under § 13-3408 for a single event that
involves different narcotic drugs.
CONCLUSION
¶22 Because the divisibility of a criminal statute is not a question
of Arizona law, we decline to answer the first two certified questions. The
third question, however, deals with Arizona law. Although we decline to
answer that question in relation to § 13-3415, we conclude that the identity
of an alleged narcotic drug is an element of § 13-3408, and therefore jury
unanimity is required.
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