Humberto Barbosa v. Merrick Garland

United States Court of Appeals
For the Eighth Circuit
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No. 22-1655
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Humberto Rincon Barbosa,
lllllllllllllllllllllPetitioner,
v.
Merrick B. Garland, Attorney General of the United States,
lllllllllllllllllllllRespondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 17, 2022
Filed: June 14, 2023
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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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COLLOTON, Circuit Judge.
Humberto Rincon Barbosa, a citizen of Mexico, petitions for review of a
decision of the Board of Immigration Appeals. The Board concluded that Rincon’s
prior conviction in Kansas for possession of methamphetamine made him removable
from the United States. We conclude that Rincon is removable, and therefore deny
the petition for review.
Rincon was born in Mexico and became a lawful permanent resident of the
United States in 2016. In December 2018, he pleaded guilty in Kansas state court to
committing two offenses: possession of methamphetamine, in violation of Kan. Stat.
Ann. § 21-5706(a), and domestic battery, in violation of Kan. Stat. Ann. § 21-
5414(a)(2).
The government initiated removal proceedings against Rincon based on his
conviction for a “controlled substance offense.” Under 8 U.S.C. § 1227(a)(2)(B)(i),
an alien is subject to removal if he has been convicted of violating “any law or
regulation of a State . . . relating to a controlled substance (as defined in section 802
of Title 21).” Section 802 of Title 21 defines “controlled substance” as “a drug or
other substance, or immediate precursor, included in schedule I, II, III, IV, or V of [21
U.S.C. § 812].” 21 U.S.C. § 802(6). Methamphetamine is one such drug. 21 U.S.C.
§ 812 Sch. III(a)(3).
When the government seeks to remove an alien based on a state drug
conviction, the adjudicator must use the “categorical approach” to determine whether
the elements of the state crime fit within the elements of the removable offense
defined by federal law. Mellouli v. Lynch, 575 U.S. 798, 805 (2015). If the state
statute encompasses the same conduct or lesser conduct than the removable offense,
then the alien is removable. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). If the
state statute criminalizes more conduct than the removable offense, then it is
overbroad. Descamps v. United States, 570 U.S. 254, 261 (2013). If the state statute
is overbroad but contains multiple, alternative elements that create different crimes,
then it is “divisible,” and a modified categorical approach applies. Moncrieffe, 569
U.S. at 191. The adjudicator may then determine the alien’s offense of conviction by
examining a limited class of judicial records. Id. If the elements of the offense of
conviction fit within the removable offense, then the alien is removable.
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In the immigration court, Rincon argued that the offense defined in § 21-
5706(a) is broader than the controlled substance offense defined in federal law, and
that the state statute is also indivisible. On that basis, he maintained that his Kansas
drug conviction was not a basis for removal. The immigration judge agreed that the
Kansas statute was overbroad, but concluded that it was a divisible statute that
included “multiple crimes, defined by multiple controlled substances.” Applying the
modified categorical approach, the immigration judge determined that the elements
of Rincon’s conviction for possession of methamphetamine in Kansas fit within the
elements of the federal controlled substance offense for possession of
methamphetamine.
On Rincon’s administrative appeal, the Board of Immigration Appeals
concluded that the Kansas statute was overbroad but divisible. Rincon argued that
Kansas’s definition of “methamphetamine” was broader than the federal definition,
but the Board deemed this argument waived by Rincon’s failure to raise it before the
immigration judge. The Board concluded that the Kansas offense categorically
matched the federal possession offense, and that Rincon was thus removable. We
review de novo the Board’s legal conclusion about the meaning of state law.
Martinez v. Sessions, 893 F.3d 1067, 1070 (8th Cir. 2018).
Kan. Stat. Ann. § 21-5706(a) criminalizes the possession of “any opiates,
opium or narcotic drugs, or any stimulant designated in K.S.A. 65-4107(d)(1), (d)(3)
or (f)(1), and amendments thereto, or a controlled substance analog thereof.” The
parties agree that this statute forbids the possession of drugs that are not included on
the federal drug schedule, and that the statute is thus not a categorical match for the
removable offense. The Kansas offense prohibits the possession of the opiates
alfentanil, § 65-4107(c)(1), carfentanil, § 65-4107(c)(6), and sufentanil, § 65-
4107(c)(26), while the federal statute does not. See 21 U.S.C. §§ 802(6); 812.
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The parties dispute, however, whether the Kansas statute is divisible into
multiple state offenses. The Board concluded that § 21-5706(a) creates several
different offenses, and that the identity of a controlled substance is an element of each
offense. The Board reasoned that Rincon’s offense of conviction was possession of
methamphetamine, a drug listed on the federal schedule, and that his conviction was
a categorical match for the removable offense.
Rincon argues in this court that § 21-5706(a) is indivisible, because the
different controlled substances represent different “means” of committing a single
offense—unlawful possession of a controlled substance. On this view, the Kansas
offense is broader than the removable offense defined by federal law, and Rincon is
not subject to removal. The government responds that the type of drug is an element
of the offense under Kansas law, and that Rincon’s offense under one portion of § 21-
5706(a) makes him removable.
Rincon argues that we may not consider some of the government’s arguments,
because the Board did not rely on the same reasons for construing drug type as an
element of the offense under § 21-5706(a). He contends that this court must remand
the case for the Board to consider these arguments in the first instance. A court of
appeals generally should remand a case to an agency “for decision of a matter that
statutes place primarily in agency hands.” INS v. Orlando Ventura, 537 U.S. 12, 16
(2002) (per curiam). But Ventura and the earlier decision in SEC v. Chenery Corp.,
318 U.S. 80 (1943), did “not disturb the settled rule” that an agency decision may be
upheld when the decision “should properly be based on another ground within the
power of the appellate court to formulate.” Chenery Corp., 318 U.S. at 88. Remand
is required only when the agency’s decision depends on “a determination of policy
or judgment which the agency alone is authorized to make and which it has not
made.” Id.-4-
This court has therefore recognized that the Chenery rule is limited “to
situations in which the agency failed to make a necessary determination of fact or of
policy.” Ark. AFL-CIO v. FCC, 11 F.3d 1430, 1440 (8th Cir. 1993) (en banc).
Chenery does not prevent the court from resolving purely legal questions that are not
entrusted to the agency. See id. at 1439-40; see HealthEast Bethesda Lutheran Hosp.
& Rehab. Ctr. v. Shalala, 164 F.3d 415, 418 (8th Cir. 1998). That is the situation
here. The immigration statutes do not vest the Board with exclusive authority to
discern the meaning of Kansas law. The Board concluded that the Kansas statute is
divisible. Principles of administrative law do not forbid this court to consider the
government’s suggested reasons for concluding that the Kansas statute is divisible,
even if they do not entirely track the Board’s rationale.
To resolve the dispute over the divisibility of § 21-5706(a), we consider
authoritative sources of state law: Kansas court decisions, statutory text, and
approved jury instructions. Mathis v. United States, 579 U.S. 500, 518 (2016).
Starting with court decisions, the Kansas Supreme Court’s analysis in State v.
Thompson, 200 P.3d 22 (Kan. 2009), is strong evidence that the identity of the
controlled substance is an element of the offense under § 21-5706(a). The Kansas
court explained that each drug in § 21-5706(a) establishes a separate “unit of
prosecution,” meaning that a person who possesses a package of cocaine and a
package of methamphetamine at the same time may be prosecuted for two separate
offenses. While ruling on a different statute, the Kansas court declared that the
gravamen of the offense in § 21-5706(a) is “possession of each specified controlled
substance in the statute—heroin, cocaine, and methamphetamine.” Because § 21-
5706(a) forbids the possession of “any opiates, opium or narcotic drugs,” the court
reasoned that a defendant could be convicted under that statute for possession of each
separate drug.
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That each drug type establishes a different unit of prosecution shows that drug
type is an element of the offense. A defendant cannot be convicted and sentenced for
two offenses with identical elements arising from the same facts. United States v.
Dixon, 509 U.S. 688, 696 (1993). Under Kansas law as discussed in Thompson, a
defendant may be convicted of, say, possession of methamphetamine and possession
of cocaine when he possesses both drugs simultaneously. Other than drug type, these
two offenses consist of the same elements. Because the only differentiating element
is the type of drug, the Kansas court has “implicitly told us that the identity of the
substance possessed is an element” of the offense. Guillen v. U.S. Att’y Gen., 910
F.3d 1174, 1182 (11th Cir. 2018); see also Raja v. Sessions, 900 F.3d 823, 829 (6th
Cir. 2018); United States v. Martinez-Lopez, 864 F.3d 1034, 1040 (9th Cir. 2017) (en
banc). For that reason, state law that allows separate convictions for the simultaneous
possession of different drugs is “persuasive evidence” that drug type is an element.
Rendon v. Barr, 952 F.3d 963, 969 (8th Cir. 2020); Martinez, 893 F.3d at 1071.
Kansas’s approved jury instructions, which are “strongly recommended” for
use in Kansas courts, State v. Dunn, 820 P.2d 412, 416 (Kan. 1991), reinforce our
understanding that drug type is an element of the offense under § 21-5706(a). Jury
instructions may inform whether a particular alternative is a means of committing an
offense or an element of the offense. When jury instructions “use a single umbrella
term” that encompasses all of the statutory alternatives, each alternative is likely a
means of committing the offense, not an element that the prosecutor must prove
beyond a reasonable doubt. Mathis, 579 U.S. at 519. Conversely, where jury
instructions require the prosecution to prove a specific statutory alternative to the
exclusion of all others, each alternative listed in the statute is likely an element of the
offense. Id.
The approved instruction for the first element of Rincon’s offense states that
“[t]he defendant is charged with unlawfully possessing insert name of controlled
substance,” and that the prosecution must prove that the “defendant possessed insert
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name of controlled substance.” PIK 57.040 (4th ed.). The “Notes on Use” direct the
court to “[i]nsert in the blanks in the first paragraph and in Element No. 1 the
appropriate controlled substance designated in K.S.A. 21-5706(a) or (b).” Id. That
the prosecution must show that the defendant possessed a particular drug such as
cocaine rather than the umbrella term of “a controlled substance” confirms that drug
type is an element of the offense. See Bah v. Barr, 950 F.3d 203, 210 (4th Cir. 2020);
Cucalon v. Barr, 958 F.3d 245, 252-53 (4th Cir. 2020).
Rincon contends that the approved instruction allows a prosecutor to charge
a defendant with possession of multiple drugs in the alternative. But the instruction
calls for insertion of a “controlled substance” in the singular, and recommends that
“an alternative charge instruction not be given,” because “the defendant cannot be
convicted of multiplicitous crimes.” Pattern Instr. Kan. Crim. 68.090 (4th ed.).
Rincon responds that the State “routinely charges defendants by listing multiple
substances in the alternative” in prosecutions for possession of marijuana and THC.
Those cases arise, however, under a different statute, Kan. Stat. Ann. § 21-5706(b),
not under § 21-5706(a). Even as to § 21-5706(b), moreover, Rincon’s cited
authorities have concluded that combining marijuana and THC in a single count
impermissibly joins two separate offenses. State v. Evans, 414 P.3d 1239, at *3 (Kan.
Ct. App. 2018) (per curiam) (unpublished table decision); State v. Delarosa, 288 P.3d
858, 862 (Kan. Ct. App. 2012) (Green, J., dissenting).
Rincon further asserts that drug type must be a “means” of committing the
offense, because § 21-5706(c)(1) imposes the same punishment for possession of
each substance. But while different punishments would conclusively establish that
drug type is an element, equivalent punishments do not show that drug type is a
means. The legislature may simply have concluded that each separate drug
possession offense deserves the same punishment, regardless of whether the offender
possessed cocaine, heroin, or methamphetamine. Martinez, 893 F.3d at 1071.
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Because the identity of the controlled substance is an element of § 21-5706(a),
the statute is divisible based on the drug involved. The Board properly applied the
modified categorical approach to determine whether Rincon was convicted of
violating a state law relating to a controlled substance listed in the federal drug
schedules. Rincon’s record of conviction establishes that he pleaded guilty to
“Unlawful Possession of a Controlled Sub (Methamphetamine).” Under 21 U.S.C.
§ 812, methamphetamine is a Schedule III controlled substance, so Rincon was
convicted of a controlled substance offense. Id. Sch. III(a)(3).
Rincon renews his argument that Kansas’s definition of methamphetamine is
broader than the federal meaning. The Board deemed that argument waived,
however, because Rincon failed to raise it before the immigration judge. We decline
to consider the contention for the first time on judicial review. When the Board
properly applies its own waiver rule, “we will not permit an end run around those
discretionary agency procedures by addressing the argument for the first time in a
petition for judicial review.” Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440 (8th Cir.
2008).
For these reasons, the Board correctly concluded Rincon was removable for
committing a controlled substance offense. The petition for review is denied.
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