Dexter Hillocks v. Attorney General United States
934 F.3d 332
3rd Cir.2019Background
- Petitioner Dexter Hillocks, a lawful permanent resident, pleaded nolo contendere in Pennsylvania to criminal use of a communication facility (18 Pa. C.S. § 7512(a)) for using a phone to facilitate a felony and was placed in removal proceedings.
- § 7512(a) criminalizes using a communications facility to commit, cause, or facilitate any felony under Pennsylvania’s Title 18 or under the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act.
- The Immigration Judge and Board found Hillocks removable as (1) having committed an aggravated felony and (2) having a conviction related to a controlled substance, after the Board applied the modified categorical approach and examined Hillocks’s plea colloquy.
- The Board concluded Hillocks facilitated the sale of heroin and treated his conviction as a categorical match to the federal statute 21 U.S.C. § 843(b), making it an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and as relating to a controlled substance.
- Hillocks appealed, arguing the Board misapplied the modified categorical approach because the statute’s listed underlying felonies are means (alternative ways) rather than alternative elements.
- The Third Circuit vacated the removal order, holding the Board erred: § 7512(a) is indivisible (under the categorical approach its least conduct is broader than any federal aggravated felony), and Mellouli requires applying the categorical approach to the controlled-substance question; thus the conviction is neither an aggravated felony nor categorically related to a federally controlled substance.
Issues
| Issue | Hillocks' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 7512(a) is divisible into alternative elements | Underlying felonies are means, not elements; statute indivisible | Each underlying felony is a separate alternative element justifying modified categorical approach | Statute is indivisible; underlying felonies are means, not elements |
| Whether Hillocks’ § 7512(a) conviction is an aggravated felony | Not a categorical match with federal aggravated felony definitions | It matches § 843(b) (federal communications-facility drug felony) and is an aggravated felony | Not an aggravated felony under categorical analysis |
| Whether Hillocks’ conviction "relates to a controlled substance" for removal | Apply categorical approach (Mellouli): statute is broader than federal schedules, so not related | Rojas-style documents-based inquiry suffices; conviction related to controlled substance here | Mellouli controls; categorical approach applies and § 7512(a) is not categorically related to a federally controlled substance |
| Whether the Board properly used the modified categorical approach | Board misapplied it because statute lacks alternative elements | Modified approach appropriate to identify which underlying felony was facilitated | Modified categorical approach was improperly applied; vacate and remand |
Key Cases Cited
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (describing categorical approach and presuming least of the acts)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (applies categorical approach to determine whether a state conviction relates to a federally controlled substance)
- Descamps v. United States, 570 U.S. 254 (2013) (explaining modified categorical approach and divisibility analysis)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (statutory language must be alternatively phrased to show divisibility)
- Borrome v. Attorney General, 687 F.3d 150 (3d Cir. 2012) (state statute broader than federal controlled-substance definition does not categorically match)
- Rojas v. Attorney General, 728 F.3d 203 (3d Cir. 2013) (previous Rojas documents-based test for controlled-substance relation; abrogated here by Mellouli)
- United States v. Johnstone, 856 F.2d 539 (3d Cir. 1988) (elements of federal § 843(b) require proof beyond reasonable doubt)
- Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017) (model jury instructions listing did not make multiple underlying substances or crimes separate elements)
- United States v. Abbott, 748 F.3d 154 (3d Cir. 2014) (divisibility where different controlled substances alter penalty range)