967 F.3d 1103
10th Cir.2020Background
- Petitioner Everett Johnson, a Bahamian and U.S. lawful permanent resident since 1977, pleaded guilty in Colorado (2016) to possession of hydrocodone under C.R.S. § 18-18-403.5(1), (2)(a).
- DHS charged Johnson removable under 8 U.S.C. § 1227(a)(2)(B)(i) because the state conviction allegedly "relat[ed] to a controlled substance (as defined in section 802 of Title 21)."
- The IJ and the BIA agreed the Colorado statute was broader than the federal Controlled Substances Act (CSA) but held it divisible; they applied the modified categorical approach to Johnson’s conviction record and ordered removal.
- Johnson challenged that the Colorado statute was indivisible as to the identity of the substance because Colorado criminalizes some substances (e.g., morpholine) not covered by the CSA.
- The Tenth Circuit reviewed de novo, concluded the statute is overbroad and that the identity of a specific schedule I/II substance is a means (not an element), so the statute is indivisible as to substance identity; the court vacated and remanded.
Issues
| Issue | Johnson's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether C.R.S. § 18-18-403.5(1), (2)(a) categorically matches the federal CSA | Colorado statute is overbroad because it criminalizes substances (e.g., morpholine) not in the CSA | Even if broader, the statute can be parsed to match federal offenses | Court: Statute is overbroad — no categorical match (state includes morpholine absent from CSA) |
| Whether the statute is divisible as to the identity of the specific controlled substance (allowing the modified categorical approach) | The specific identity of the substance is a "means," not an element; statute is indivisible as to identity, so modified categorical approach cannot be used | The identity must be treated as an element (jury must identify the substance/schedule), so statute is divisible and modified categorical approach applies | Court: Identity is a means; statute is divisible only by schedule, not by individual substance identity; modified categorical approach inapplicable as to substance identity; conviction cannot be the federal predicate for removal |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means and explains divisibility analysis for the categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (overbroad state statutes preclude a categorical match to federal offenses)
- Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (applies categorical approach to immigration removability for drug convictions)
- Jimenez v. Sessions, 893 F.3d 704 (10th Cir. 2018) (de novo review of BIA legal determinations including divisibility)
- United States v. McKibbon, 878 F.3d 967 (10th Cir. 2017) (analyzes substance-identity as element vs means under categorical approach)
- Arellano v. Barr, [citation="784 F. App'x 609"] (10th Cir. 2019) (concluding Colorado statute treats substance identity as non-element within a schedule)
- People v. Perea, 126 P.3d 241 (Colo. App. 2005) (Colorado court holding knowledge requirement concerns possession generally, not the precise substance possessed)