Jorge Romero-Millan v. William Barr, 507 P.3d 999

Background

Three Mexican nationals (Romero‑Millan, Cabanillas, Garcia‑Paz) were convicted in Arizona of drug‑related offenses: Romero‑Millan under A.R.S. § 13‑3415 (possession/use of drug paraphernalia) and Cabanillas and Garcia‑Paz under A.R.S. § 13‑3408(A)(2) (possession of a narcotic drug for sale).
Their convictions triggered removal orders by immigration authorities; the Ninth Circuit consolidated appeals and asked whether Arizona statutes are "divisible" by drug type and whether jury unanimity is required as to the specific drug involved.
The Ninth Circuit certified three questions to the Arizona Supreme Court about (1) divisibility of § 13‑3415, (2) divisibility of § 13‑3408, and (3) whether jury unanimity is required as to drug identity for convictions under those statutes.
The Arizona Supreme Court declined to answer the first two certified questions (divisibility) because divisibility is a federal‑law construct (Descamps) and not a question of Arizona state law.
On the third question, the court declined to decide unanimity for § 13‑3415 (preferring a case that directly presents that issue) but held that for § 13‑3408 the identity of the narcotic drug is an element of the offense and therefore jury unanimity on drug identity is required.
The court’s holding for § 13‑3408 relied on statutory ambiguity resolved by context: drug‑specific sentencing thresholds, legislative wording changes, related statutes, and unit‑of‑prosecution precedent permitting separate convictions for different narcotics.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether A.R.S. § 13‑3415 is divisible as to drug type	Romero‑Millan: statute is indivisible; conviction need not identify a specific drug	Barr/State: statute is divisible; identifying the drug matters for collateral consequences	Court: declined to answer (divisibility is a federal question; left to Ninth Circuit under state law)
Whether A.R.S. § 13‑3408 is divisible as to drug type	Cabanillas/Garcia‑Paz: statute is indivisible so conviction may not require a specific drug	Barr/State: statute is divisible and drug identity is relevant	Court: declined to answer (same reason as above)
Whether jury unanimity is required as to the specific drug alleged	Petitioners: drug identity is not an element; unanimity not required	Respondent: drug identity is an element; unanimity required	Court: for § 13‑3415 — declined to decide; for § 13‑3408 — held yes, drug identity is an element and jury unanimity is required

Key Cases Cited

Descamps v. United States, 570 U.S. 254 (divisibility inquiry under federal law distinguishes elements from means)
Alleyne v. United States, 570 U.S. 99 (any fact increasing mandatory minimum is an element for jury to find beyond a reasonable doubt)
State v. Soza, 249 Ariz. 13 (Ariz. Ct. App. held paraphernalia statute focused on possession act, not a specific drug)
State v. Wright, 239 Ariz. 284 (affirmed multiple convictions for possession of different narcotic drugs from same seizure)
State v. Jurden, 239 Ariz. 526 (unit‑of‑prosecution and double jeopardy framework)
Kaiser v. Cascade Cap., LLC, 989 F.3d 1127 (federal courts must predict state law absent controlling state‑supreme‑court precedent)
BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17 (statutory interpretation begins with clear text)