902 F.3d 930
9th Cir.2018Background
- Lorenzo, a lawful permanent resident since 1983, pled nolo contendere in 2013 to possession (Cal. Health & Safety Code § 11378) and transportation (§ 11379(a)) of "methamphetamine." The conviction record did not specify the isomer/type.
- California Schedule definitions (§ 11055, § 11033) define methamphetamine to include "methamphetamine, its salts, isomers, and salts of its isomers," and the default statutory definition of "isomer" includes both optical and geometric isomers.
- The federal Controlled Substances Act (CSA) treats "isomer" differently for methamphetamine: the CSA covers optical isomers of methamphetamine but not geometric isomers for the schedules that include methamphetamine.
- DHS initiated removal proceedings charging Lorenzo under 8 U.S.C. § 1227(a)(2)(B)(i) (state controlled-substance violation) and alternatively § 1227(a)(2)(A)(iii) (aggravated felony). The IJ and BIA concluded the convictions were removable; Lorenzo petitioned for review.
- The Ninth Circuit applied the categorical/modified categorical framework (Taylor/Mathis line) and asked whether (1) California law is broader than the federal CSA and (2) if so, whether the methamphetamine element is divisible (permitting the modified categorical approach).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California methamphetamine offense is categorically broader than federal CSA | Lorenzo: CA definition includes geometric isomers; CSA covers only optical isomers, so CA is broader | Government: Vega-Ortiz and related precedent show no realistic probability of prosecution of excluded conduct; waiver argued | Held: CA is facially broader — includes geometric isomers that CSA does not; overbreadth established at step one |
| Whether Taylor/elemental analysis must be applied to nested disjunctive lists (drugs list and then isomers list) | Lorenzo: Second Taylor analysis required for the methamphetamine sub-list | Government: Relied on prior cases treating broader CA list as divisible at higher level; argued Vega-Ortiz distinguishes | Held: Court requires Taylor analysis at both levels — must test the methamphetamine disjunctive sub-list against federal definition |
| Whether the methamphetamine element (optical vs geometric isomers, salts, etc.) is divisible | Lorenzo: Different isomers are alternative means, not separate elements; record not specifying type precludes modified categorical approach | Government: Argued statute divisible or that realistic probability/practical evidence supports divisibility | Held: Not divisible — California law and case law treat different types/variants as alternative means of a single offense |
| Whether modified categorical approach may be used to identify federal-qualifying conduct | Lorenzo: Modified categorical approach inapplicable because element is not divisible; conviction cannot be matched to CSA | Government: Sought to apply modified categorical approach or rely on realistic-probability arguments | Held: Modified categorical approach not available; convictions do not qualify as controlled-substance offenses under 8 U.S.C. § 1227(a)(2)(B)(i) |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach to compare offenses)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes alternative elements from alternative means; governs divisibility analysis)
- United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. en banc 2017) (three-step categorical/modified categorical framework applied in Ninth Circuit)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (realistic-probability test for whether state statute reaches nongeneric conduct)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 (2007) (describes realistic-probability requirement and proof needed)
- United States v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016) (addressed overbreadth arguments re: CA law and federal scheduling exclusions)
- United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (when statutory text shows broader reach, no realistic-probability showing required)
- United States v. Burgos-Ortega, 777 F.3d 1047 (9th Cir. 2015) (applies realistic-probability analysis to overbreadth claims)
Outcome: Petition granted; case remanded. The Ninth Circuit held Lorenzo's California methamphetamine convictions are not removable under 8 U.S.C. § 1227(a)(2)(B)(i) because California's methamphetamine definition is broader than the CSA and that overbroad methamphetamine element is not divisible, precluding the modified categorical approach.