Elisio Atenia Lorenzo v. Jefferson Sessions, III

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISIO ATENIA LORENZO, No. 15-70814
Petitioner,
Agency No.
v. A038-467-916
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2018
Pasadena, California
Filed August 29, 2018
Before: Sidney R. Thomas, Chief Judge, and Raymond C.
Fisher and Carlos T. Bea, Circuit Judges. *
Opinion by Judge Fisher
*
This case was submitted to a panel that included Judge Stephen
Reinhardt. Following Judge Reinhardt’s death, Judge Bea was drawn by
lot to replace him. Ninth Circuit General Order 3.2h. Judge Bea has
reviewed all case materials.
2 ATENIA LORENZO V. SESSIONS
SUMMARY **
Immigration
The panel granted Elisio Atenia Lorenzo’s petition for
review of a decision of the Board of Immigration Appeals
that found Lorenzo removable for a controlled substance
offense, holding that: 1) where a state statute contains two
layers of disjunctive lists, the analysis outlined in Taylor v.
United States, 495 U.S. 575 (1990), for applying the
categorical approach, applies to both layers of the statute and
must be performed twice; and 2) a methamphetamine
conviction under California Health & Safety Code §§ 11378
or 11379(a) does not qualify as a controlled substance
offense under 8 U.S.C. § 1227(a)(2)(B)(i), and remanded.
The panel explained that § 11378 makes it unlawful to
possess for sale a controlled substance specified in certain
subdivisions of California Health & Safety Code § 11055,
and that § 11379(a) makes it unlawful to transport, import,
sell, furnish, administer, or give away a controlled substance
specified in certain subdivisions of § 11055. Section 11055,
in turn, identifies a list of substances, including
methamphetamine and its isomers. The Controlled
Substances Act likewise includes methamphetamine and its
isomers.
However, the panel concluded that the California
definition of methamphetamine is broader than the federal
definition because the California definition includes both
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ATENIA LORENZO V. SESSIONS 3
geometric and optical isomers of methamphetamine, while
the CSA includes optical isomers, but not geometric isomers.
Accordingly, the panel held that the California definition is
overbroad under the first step of the categorical approach.
The panel recognized that, in applying the first step of
the categorical approach in this case, it had to examine a
disjunctive list within another disjunctive list. The panel
explained that it was therefore not enough to conclude, as
this court had in United States v. Martinez-Lopez, 864 F.3d
1034 (9th Cir. 2017) (en banc), that California’s disjunctive
list of controlled substances is overbroad but divisible.
Rather, in this instance, another Taylor analysis – addressing
whether California’s disjunctive list of types of
methamphetamine is overbroad and, if so, divisible – was
also required.
Next, the panel held that the overbroad
methamphetamine element of §§ 11378 and 11379(a) is not
divisible, observing that, under California law, geometric
and optical isomers of methamphetamine are alternative
means of committing a single offense, not alternative
elements of committing several offenses.
Having concluded that the California statute is overbroad
and not divisible with respect to the overbroad element, the
panel explained it could not apply the modified categorical
approach to determine whether Lorenzo’s convictions
involved a type of methamphetamine covered by the CSA.
As a result, the panel concluded that Lorenzo’s convictions
under §§ 11378 and 11379(a) do not qualify as controlled
substance offenses that render him removable under
8 U.S.C. § 1227(a)(2)(B)(i).
4 ATENIA LORENZO V. SESSIONS
Because the immigration judge and BIA did not address
whether Lorenzo was removable on the ground that his
§ 11379(a) conviction constitutes an illicit trafficking
aggravated felony, the panel did not address that question.
However, the panel noted that, if the BIA addresses the
government’s aggravated felony theory on remand, it should
consider whether that theory suffers from the same flaw as
the government’s theory of removability under 8 U.S.C.
§ 1227(a)(2)(B)(i).
COUNSEL
Benjamin F. Aiken (argued), Orrick Herrington & Sutcliffe
LLP, Washington, D.C.; Cathy C. Shyong, Orrick
Herrington & Sutcliffe LLP, Menlo Park, California; Karen
Johnson-McKewan, Orrick Herrington & Sutcliffe LLP, San
Francisco, California; for Petitioner.
Scott G. Stewart (argued), Washington, D.C., for
Respondent.
OPINION
FISHER, Circuit Judge:
This case raises a novel yet straightforward question in
our application of Taylor v. United States, 495 U.S. 575
(1990): whether the Taylor analysis must be performed twice
if a state statute contains two layers of disjunctive lists. We
hold Taylor applies to both layers of the statute. Following
this approach, we conclude the definition of
“methamphetamine” applicable to convictions under
California Health & Safety Code §§ 11378 and 11379(a) is
ATENIA LORENZO V. SESSIONS 5
broader than the definition of methamphetamine under the
federal Controlled Substances Act, 21 U.S.C. § 812. Under
the first step in the categorical approach, therefore, a
conviction for a methamphetamine offense under §§ 11378
or 11379(a) does not qualify as a “controlled substance”
violation under 8 U.S.C. § 1227(a)(2)(B)(i). We further
conclude the methamphetamine element applicable to a
conviction under §§ 11378 or 11379(a) is not divisible,
because the different varieties of methamphetamine covered
by California law are alternative means of committing a
single crime rather than alternative elements of separate
crimes. We therefore do not apply the modified categorical
approach. Because the methamphetamine element of
§§ 11378 and 11379(a) is overbroad and the modified
categorical approach does not apply, we hold a
methamphetamine conviction under §§ 11378 or 11379(a)
does not qualify as a controlled substance offense under 8
U.S.C. § 1227(a)(2)(B)(i). Accordingly, we hold Lorenzo is
not removable for the reasons stated by the BIA. 1
I.
Lorenzo, a native and citizen of the Philippines, entered
the United States in 1983 and has lived in this country as a
lawful permanent resident since that time. In 2013, he pled
nolo contendere to possession of methamphetamine, in
violation of § 11378, and transportation of
methamphetamine, in violation of § 11379(a). The record of
conviction does not identify the type of methamphetamine
involved, and, under California law, “methamphetamine” is
broadly defined to include “[m]ethamphetamine, its salts,
1
Unless otherwise noted, all further statutory citations are to the
California Health and Safety Code.
6 ATENIA LORENZO V. SESSIONS
isomers, and salts of its isomers.” § 11055(d)(2). Lorenzo
was sentenced to a year in jail and probation.
The Department of Homeland Security initiated removal
proceedings against Lorenzo because of his 2013 state
convictions. The notice to appear charged Lorenzo with
removability under § 237(a)(2)(A)(iii) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), on
the ground that his § 11379(a) conviction constituted an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B), which
defines the term “aggravated felony” to include, among
other things, “illicit trafficking in a controlled substance,
including a drug trafficking crime.” Alternatively, and as
relevant here, the notice to appear charged Lorenzo with
removability under § 237(a)(2)(B)(i) of the INA, 8 U.S.C.
§ 1227(a)(2)(B)(i), on the ground that his §§ 11378 and
11379(a) convictions constituted violations of state law
“relating to a controlled substance.”
Lorenzo moved to terminate removal proceedings,
contending his methamphetamine convictions did not
necessarily involve a controlled substance as defined by
federal law. Specifically, he argued the definition of
methamphetamine under California law is broader than the
definition of methamphetamine under the federal Controlled
Substances Act (CSA), because the CSA’s definition
includes only optical isomers of methamphetamine, whereas
California law includes both optical and geometric isomers
of methamphetamine.
An immigration judge (IJ) denied Lorenzo’s motion and
ordered him removed, concluding that Lorenzo’s
convictions qualified as controlled substance offenses under
8 U.S.C. § 1227(a)(2)(B)(i). The BIA adopted and affirmed
the IJ’s decision under Matter of Burbano, 20 I. & N. Dec.
ATENIA LORENZO V. SESSIONS 7
872 (BIA 1994), while also providing its own analysis.
Lorenzo timely petitioned for review.
II.
We review the BIA’s determination of purely legal
questions de novo, see Vasquez-Zavala v. Ashcroft, 324 F.3d
1105, 1107 (9th Cir. 2003), including whether a particular
conviction under state law is a removable offense, see
Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir.
2016), and whether a statute is divisible, see United States v.
Martinez-Lopez, 864 F.3d 1034, 1039–40 (9th Cir. 2017) (en
banc) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 477
(9th Cir. 2016) (en banc)).
III.
We hold Lorenzo’s methamphetamine convictions under
§§ 11378 and 11379(a) do not qualify as grounds for
removal under 8 U.S.C. § 1227(a)(2)(B)(i).
A.
We use “a three-step analysis” to determine whether a
state conviction qualifies as a controlled substance offense
under federal law. See Martinez-Lopez, 864 F.3d at 1038.
First, we determine whether state law bars “the same amount
of or less conduct than” federal law. Id. (quoting United
States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014)).
If so, then the state conviction is a categorical match, and the
state conviction is a ground for removability. See id. If the
state law encompasses more conduct than the federal law,
however, the state conviction does not qualify as a controlled
substance offense under the first step in the categorical
approach. In that case, we determine whether the state law
is divisible – i.e., whether the overly broad element sets out
8 ATENIA LORENZO V. SESSIONS
alternative means of committing a single crime or alternative
elements of committing two or more distinct crimes. See id.
at 1038–39. At step three, if the statute is divisible, we
employ the modified categorical approach, where we may
look to documents in the record of conviction, but not the
particular facts underlying the conviction, to determine
whether the conviction qualifies. See Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016). If the statute is
overbroad and not divisible, then the conviction cannot be a
ground for removal. See id. at 2248–49.
B.
We begin by applying the first step in the categorical
approach, determining whether the statutes of conviction are
broader than federal law.
Section 11378 makes it a crime to “possess[] for sale a
controlled substance that . . . is specified in subdivision (d),
(e), or (f) . . . of Section 11055.” Section 11379(a) makes it
unlawful to “transport[], import[] into this state, sell[],
furnish[], administer[], or give[] away . . . any controlled
substance which is . . . specified in subdivision (d) or (e) . . .
of Section 11055.” Section 11055, in turn, identifies a list
of Schedule II substances, including, as relevant here,
“[m]ethamphetamine, its salts, isomers, and salts of its
isomers.” § 11055(d)(2). Section 11033 further provides
that the term “isomer,” unless otherwise defined, “includes
optical and geometrical (diastereomeric) isomers.” Thus,
under California law, a methamphetamine conviction under
§§ 11378 or 11379(a) may involve methamphetamine or it
may involve methamphetamine’s “salts, isomers, [or] salts
of its isomers,” including both “optical and geometrical . . .
isomers.”
ATENIA LORENZO V. SESSIONS 9
The CSA likewise applies to “[a]ny substance” that
“contains any quantity of methamphetamine, including its
salts, isomers, and salts of isomers.” 21 U.S.C. § 812
Schedule II(c), Schedule III(a)(3). With respect to
methamphetamine, however, the CSA applies only to optical
isomers, not geometric isomers.
Under 21 U.S.C. § 802(14):
The term “isomer” means the optical isomer,
except as used in schedule I(c) and schedule
II(a)(4). As used in schedule I(c), the term
“isomer” means any optical, positional, or
geometric isomer. As used in schedule
II(a)(4), the term “isomer” means any optical
or geometric isomer.
Methamphetamine falls under Schedules II(c) (“any
injectable liquid which contains any quantity of
methamphetamine, including its salts, isomers, and salts of
isomers”) and III(a)(3) (“Any substance (except an
injectable liquid) which contains any quantity of
methamphetamine, including its salts, isomers, and salts of
isomers.”). Thus, for purposes of methamphetamine, the
CSA covers only optical isomers. Federal law extends to
geometric isomers with respect to substances listed on
Schedules I(c) and II(a)(4), but methamphetamine is not
included on those schedules.
We have no reason to believe that these distinctions
between California and federal law are immaterial. Both
California law and federal law go to great lengths to specify
the types of isomers covered for specific controlled
substances. California law, for example, carefully specifies
the controlled substances for which isomers are covered at
all. These substances are opiates; opium derivatives;
10 ATENIA LORENZO V. SESSIONS
hallucinogenic substances, such as cannabis, peyote and
psilocybin; depressants; cocaine base; opium; ecgonine;
stimulants, such as amphetamine and methamphetamine;
dimethylamphetamine; N-ethylmethamphetamine; gamma
hydroxybutyric acid; and fenfluramine. See §§ 11054(b),
(c), (d), (e), (f), 11055(b)(1)–(2), (b)(7), (c), (d)(1), (d)(2),
(d)(3), (d)(4), (e), 11056(b), (c)(11), 11057(d), (e), (f).
Next, like federal law, California law carefully specifies
the types of isomers covered for each controlled substance.
Under California’s default rule, both optical and geometric
isomers are covered. See § 11033. But, like federal law, the
California statutes specify exceptions to the default rule.
Section 11054(d), relating to hallucinogenic substances, for
instance, expands the default definition, stating that, “for
purposes of this subdivision only, the term ‘isomer’ includes
the optical, position, and geometric isomers.” See also
§§ 11056(b) (stimulants) (including “isomers (whether
optical, position, or geometric)”), 11057(e) (fenfluramine)
(same), (f) (stimulants) (same). Other provisions narrow the
default definition, specifying that only optical isomers are
included. E.g., §§ 11054(d)(20) (including “delta 1 cis or
trans tetrahydrocannabinol, and their optical isomers; delta 6
cis or trans tetrahydrocannabinol, and their optical isomers;
delta 3,4 cis or trans tetrahydrocannabinol, and its optical
isomers”), 11055(d)(1) (“Amphetamine, its salts, optical
isomers, and salts of its optical isomers.”). 2 In short, both
2
A comparison of California’s statutory treatment of amphetamine
and methamphetamine is illustrative. These substances are listed
immediately next to one another in § 11055(d), but with respect to
amphetamine, only optical isomers are specified. Compare
§ 11055(d)(1) (“Amphetamine, its salts, optical isomers, and salts of its
optical isomers.” (emphasis added)), with § 11055(d)(2)
(“Methamphetamine, its salts, isomers, and salts of its isomers.”).
ATENIA LORENZO V. SESSIONS 11
California law and federal law carefully identify the types of
isomers included for various controlled substances.
California law includes geometric isomers of
methamphetamine, but federal law does not. 3
On its face, therefore, the California definition of
methamphetamine is broader than the federal definition.
Whereas the former includes geometric isomers of
methamphetamine, the CSA does not. Accordingly,
California law is facially overbroad under the first step in the
categorical approach. See Martinez-Lopez, 864 F.3d at
1038.
The government challenges this conclusion on two
grounds, neither of which is persuasive. First, the
government contends Lorenzo waived this issue by failing
to raise it in his opening brief before this court. Lorenzo’s
opening brief, however, plainly argued that California law is
overbroad because it “prohibits both optical and geometric
isomers of all listed controlled substances,” whereas the
CSA “punishes the possession of optical isomers alone.”
The government’s waiver argument, therefore, is without
merit.
Second, the government argues Lorenzo’s convictions
qualify as controlled substance offenses in light of United
States v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016). There,
the defendant argued that California law was broader than
federal law because federal law contains a provision
requiring the Attorney General to exclude from the CSA’s
3
The record does not tell us why California has elected to include
geometric isomers with respect to a broader range of controlled
substances than the CSA, but it has done so. In the absence of any
evidence – either in the record or subject to judicial notice – to suggest
that this distinction is not material, we must assume that it is.
12 ATENIA LORENZO V. SESSIONS
controlled substance schedules certain non-narcotic
substances that are lawfully sold over the counter, without a
prescription, under the federal Food, Drug, and Cosmetic
Act. See 21 U.S.C. § 811(g)(1). In accordance with this
statutory requirement, the Attorney General has
promulgated 21 C.F.R. § 1308.22, which excludes 17 over-
the-counter pharmaceutical products from the CSA
schedules, including Levmetamfetamine (l-
Desoxyephedrine), or “L-meth,” a substance used in a nasal
decongestant produced by Aphena Pharma and in Vicks
VapoInhaler, sold by Procter & Gamble Co. Noting that no
similar exceptions apply under California law, the defendant
in Vega-Ortiz argued California law was “fatally overbroad
because it criminalizes methamphetamine in all its forms,
including its salts, isomers, and salts of its isomers without
containing an exception for pharmaceutical products that
contain ‘L-meth,’ although federal law excludes a particular
product containing L-meth.” Vega-Ortiz, 822 F.3d at 1034.
We rejected the defendant’s argument:
Vega-Ortiz . . . maintains that the federal
regulation excluding a particular product
containing L-meth from the schedule of
federal controlled substances renders
California’s definition of methamphetamine
broader than the definition of controlled
substances in the Controlled Substances Act.
However, in addressing a similar argument
regarding an exemption for “administering”
controlled substances that existed under
federal law but not Washington state law, we
focused on whether the defendant showed a
“realistic probability” that a person would be
prosecuted for the offense that assertedly
ATENIA LORENZO V. SESSIONS 13
rendered the state statute overbroad. United
States v. Burgos-Ortega, 777 F.3d 1047,
1054–55 (9th Cir. 2015); see also Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
(“[T]o find that a state statute creates a crime
outside the generic definition of a listed crime
in a federal statute requires . . . a realistic
probability . . . that the state would apply its
statute to conduct that falls outside the
generic definition of a crime. . . .”).
Applying this analysis to the facts here, to
succeed on his claim Vega-Ortiz would need
to show a “realistic probability” that he
would be prosecuted under § 11378 for
possession of the excluded product
containing L-meth. Burgos-Ortega, 777 F.3d
at 1054. He has failed to do so. As in
Burgos-Ortega, § 11378 is not “overbroad on
its face” and “does not expressly include
conduct not covered by the generic offense,
but rather is silent as to the existence of a
parallel [L-meth] exception.” 777 F.3d at
1055. Thus, Vega-Ortiz’s overbreadth
arguments are unavailing, and we conclude
that the district court properly applied the
modified categorical approach to § 11378.
Id. at 1035–36 (first alteration added).
The government’s reliance on Vega-Ortiz is misplaced.
Vega-Ortiz expressly distinguished a case, such as this one,
in which the California statute is overbroad on its face.
“Where, as here, a state statute explicitly defines a crime
more broadly than the generic definition, no ‘legal
imagination,’ is required to hold that a realistic probability
14 ATENIA LORENZO V. SESSIONS
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime. The state
statute’s greater breadth is evident from its text.” United
States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc)
(citation omitted). “[W]hen ‘[t]he state statute’s greater
breadth is evident from its text,’ a defendant may rely on the
statutory language to establish the statute as overly
inclusive.” United States v. Vidal, 504 F.3d 1072, 1082 (9th
Cir. 2007) (en banc) (citation omitted). Here, because the
mismatch between the federal and state statutes is apparent
on the face of the statutes, such that no rational interpretation
of either statute would reconcile the two, Lorenzo is not
required to “point to his own case or other cases in which the
state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” Duenas-Alvarez,
549 U.S. at 193.
We similarly reject the reasoning of the IJ and the BIA.
The IJ concluded California and federal law were a match
under the first step in the categorical approach because
geometric isomers of methamphetamine do not exist. The
IJ, however, did not substantiate that conclusion, the BIA did
not adopt that rationale and the government does not
advance a similar argument here. Nor is there evidence in
the record to show that geometric isomers of
methamphetamine do not in fact exist.
The BIA, in turn, reasoned that, under Matter of
Ferreira, 26 I. & N. Dec. 415 (BIA 2014),
to defeat a charge of removability for a
controlled substance violation based on a
state law that criminalizes substances that
may not be within the purview of the CSA,
the respondent must present a realistic
probability that the state would prosecute
ATENIA LORENZO V. SESSIONS 15
such conduct. Here, although queried by the
Immigration Judge, the respondent has
presented no evidence of any cases in which
a particular isomer was isolated for
prosecution, rather than the court using the
generic term methamphetamine.
But we are not bound by Ferreira in this case. Although
Ferreira, 26 I. & N. Dec. at 420–21, concluded an individual
must point to cases in which the state courts applied the
statute of conviction in a nongeneric manner even in the case
of a facially overbroad statute, we do not accord deference
to that conclusion under either Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), or National Cable & Telecommunications Ass’n v.
Brand X Internet Services, 545 U.S. 967 (2005). Deference
applies under Chevron and Brand X only “[w]hen a court
reviews an agency’s construction of the statute which it
administers.” Chevron, 467 U.S. at 842. Here, because
Ferreira’s holding was an interpretation of Moncrieffe v.
Holder, 569 U.S. 184, 206 (2013), and Duenas-Alvarez,
549 U.S. at 193, not an interpretation of the INA, no
deference is owed. 4
We recognize that, in applying the first step in the
categorical approach in this case, we have had to examine a
disjunctive list within another disjunctive list. At the more
general level, we must examine the disjunctive list of drug
4
The government, moreover, does not ask us to accord deference to
Ferreira on this question, and other courts have not done so. See, e.g.,
Hylton v. Sessions, 897 F.3d 57, 64–65 (2d Cir. 2018) (rejecting Ferreira
without according deference); Swaby v. Yates, 847 F.3d 62, 66 (1st Cir.
2017) (same); Vazquez v. Sessions, 885 F.3d 862, 873–74 (5th Cir. 2018)
(agreeing with Ferreira without according deference).
16 ATENIA LORENZO V. SESSIONS
types – e.g., cocaine, heroin, methamphetamine – covered
by California law. See Martinez-Lopez, 864 F.3d at 1040–
41 (examining that disjunctive list and concluding that the
drug types constitute alternative elements under California
law). At the more specific level, however, California law
also includes disjunctive lists within a drug type, listing, for
example, several types of methamphetamine –
methamphetamine, its salts, its optical and geometric
isomers, and salts of its isomers. See §§ 11033, 11055(d)(2).
Although we may not have expressly addressed this
situation before, it is apparent that, when this situation arises,
we must conduct a Taylor analysis with respect to both
disjunctive lists. It is not enough to determine that §§ 11378
and 11379(a) are overbroad and divisible with respect to the
types of controlled substances they cover, because the
methamphetamine element itself contains a disjunctive list.
As a result, the question addressed through the Taylor
analysis – whether Lorenzo was convicted of possessing or
transporting a controlled substance covered under the federal
CSA – requires that the Taylor analysis be conducted a
second time. If California’s definition of methamphetamine
is broader than the definition under federal law, Lorenzo’s
convictions related to methamphetamine may not be
convictions for a controlled substance under federal
immigration law. Concluding, as in Martinez-Lopez, that
California’s disjunctive list of controlled substances is
overbroad but divisible is not enough. Another Taylor
analysis – addressing whether California’s disjunctive list of
types of methamphetamine is overbroad and, if so, divisible
– is required before we can ascertain whether Lorenzo has
been convicted of a controlled substance offense covered by
the CSA.
ATENIA LORENZO V. SESSIONS 17
C.
Having concluded that methamphetamine convictions
under §§ 11378 and 11379(a) are overbroad under the first
step in the categorical approach, we must consider whether
the methamphetamine element of each of these statutes is
divisible. That is, we must determine whether the different
types of methamphetamine covered by the statutes –
including optical and geometric isomers – constitute
alternative elements of separate crimes or alternative means
of committing a single crime. See Martinez-Lopez, 864 F.3d
at 1038–39.
We first look to “authoritative sources” in state law for a
clear answer as to whether geometric and optical isomers of
methamphetamine are alternative elements or alternative
means. See Mathis, 136 S. Ct. at 2256; Martinez-Lopez,
864 F.3d at 1046. If a state court decision “definitively
answers the question,” we rely on that source. Mathis,
136 S. Ct. at 2256.
Here, we have a definitive state law answer: geometric
and optical isomers of methamphetamine are alternative
means of committing a single offense, not alternative
elements of committing several state controlled substance
offenses. The methamphetamine element, therefore, is not
divisible.
In People v. Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App.
1968), the California Court of Appeal explained that
possession of different types of the same drug – e.g.,
different types of methamphetamine – “would constitute a
single offense” under California law, because the drugs fell
within the same classification in the drug schedule, which at
that time was codified in Health & Safety Code § 11001.
Possession of “[o]pium and its derivatives and compounds,”
18 ATENIA LORENZO V. SESSIONS
for example, constituted a single offense. Id. (quoting
former § 11001(a)(1)). So did possession of any type of drug
within “[p]henathrene opium alkaloids, their salts,
derivatives and compounds . . . morphine alkaloid, morphine
salts, morphine compounds, and preparations.” Id. (quoting
former § 11001(b)(1)). Accordingly, charges for two counts
of opium possession and seven counts of phenathrene opium
alkaloid possession required consolidation into two counts.
See id. The California Supreme Court cited this aspect of
Schroeder with approval in In re Adams, 536 P.2d 473, 477
(Cal. 1975). Thus, under Schroeder and Adams, possession
of multiple variations of the same drug constitutes a single
crime under California law. Different types of
methamphetamine, therefore, are alternative means of
committing a single controlled substance offense, not
alternative elements of distinct offenses.
This conclusion finds additional support in the way
methamphetamine convictions are characterized by the
California courts. The courts, for example, characterize a
conviction as involving methamphetamine generally even
when it may actually involve crystal methamphetamine – a
salt of methamphetamine. See, e.g., People v. Buchanan,
204 Cal. Rptr. 3d 167, 170, 172 (Ct. App. 2016); People v.
Logan, 2014 WL 971444, at *1–2 (Cal. Ct. App. Mar. 13,
2014); People v. Serb, 2012 WL 968082, at *2 (Cal. Ct. App.
Mar. 22, 2012); People v. Laufasa, 115 Cal. Rptr. 3d 318,
319 (Ct. App. 2010); People v. Vizcarrondo, 2005 WL
2038215, at *1 (Cal. Ct. App. Aug. 25, 2005).
Indeed, charges may not allege the type of
methamphetamine at issue unless a sentencing enhancement
for crystal methamphetamine applies. California sentencing
law provides that, “for an offense involving
methamphetamine, the fact that the controlled substance is
ATENIA LORENZO V. SESSIONS 19
the crystalline form of methamphetamine” constitutes an
aggravating circumstance. Cal. Penal Code § 1170.74.
Charges therefore may include a charge for a crime
involving methamphetamine with a “special allegation,” for
sentencing purposes, that the substance is crystal
methamphetamine. See, e.g., People v. Smith, 2009 WL
808316, at *1 (Cal. Ct. App. Mar. 30, 2009); People v.
Lawhorn, 2008 WL 4412284, at *1 (Cal. Ct. App. Sept. 30,
2008). The enhancement need not be proven for conviction,
and it is not necessarily alleged in all cases involving crystal
methamphetamine. See, e.g., People v. Shellock, 2007 WL
1874329, at *1 (Cal. Ct. App. June 29, 2007) (describing a
methamphetamine conviction where the substance was
crystal methamphetamine, but not mentioning the crystal
methamphetamine enhancement); People v. Belasquez,
2006 WL 171520, at *1 (Cal. Ct. App. Jan. 25, 2005) (same).
State courts’ practice in applying the sentencing
enhancement shows that a conviction for
“methamphetamine” may in fact be a conviction for a variant
– in these instances, crystal methamphetamine.
In sum, California law demonstrates that optical and
geometric isomers of methamphetamine are alternative
means of committing a single controlled substance offense
under California law. The government does not argue
otherwise. The overly broad methamphetamine element,
therefore, is not divisible. Because the California statute is
overbroad and not divisible with respect to the overbroad
element, we do not apply the modified categorical approach
to determine whether Lorenzo’s convictions involved a type
of methamphetamine covered by the CSA. As a result,
Lorenzo’s convictions under §§ 11378 and 11379(a) do not
qualify as controlled substance offenses under 8 U.S.C.
§ 1227(a)(2)(B)(i).
20 ATENIA LORENZO V. SESSIONS
Because the IJ and the BIA did not consider whether
Lorenzo was removable on the ground that his § 11379(a)
conviction constitutes an “illicit trafficking in a controlled
substance” aggravated felony under 8 U.S.C.
§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), we do not address
that question. See Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency. If we
conclude that the BIA’s decision cannot be sustained upon
its reasoning, we must remand to allow the agency to decide
any issues remaining in the case.”). If the BIA addresses the
government’s aggravated felony theory on remand, it should
consider whether that theory suffers from the same flaw as
the government’s theory of removability under 8 U.S.C.
§ 1227(a)(2)(B)(i).
PETITION GRANTED; REMANDED.