Leonel Sandoval v. Sally Yates
2017 WL 382335
9th Cir.2017Background
- Leonel Sandoval, a lawful permanent resident since 1990, was convicted in Oregon (1998) of delivery of heroin under Or. Rev. Stat. § 475.992(1)(a).
- The government charged him in removal proceedings as removable partly because the conviction was an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii).
- Oregon precedent (State v. Sargent; State v. Pollock; State v. Self) treats solicitation or an offer to sell as a "substantial step" that constitutes an attempt and thus qualifies as "delivery" under the Oregon statute.
- Federal law (Controlled Substances Act and Ninth Circuit precedent) treats solicitation as insufficient to constitute an "attempted" distribution for federal drug-trafficking offenses.
- The IJ and BIA found Sandoval’s conviction an aggravated felony; the Ninth Circuit reviewed de novo and considered whether Oregon’s statute is a categorical match to federal aggravated-felony drug offenses and whether the modified categorical approach applies.
Issues
| Issue | Sandoval's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 475.992(1)(a) is a categorical match to a federal "drug trafficking crime" (delivery/attempt to deliver heroin) | Oregon statute punishes solicitation (mere offer) which federal law does not treat as "attempt," so conviction is overbroad and not a categorical match | § 475.992(1)(a) requires more than mere solicitation; convictions can be for actual attempted or completed delivery, so it can match | Held: Not a categorical match — Oregon law covers solicitation which federal law excludes, so conviction is not an aggravated felony |
| Whether § 475.992(1)(a) is a categorical match to an "illicit trafficking" offense (commercial dealing element) | No commercial-dealing element in Oregon statute; overbroad | Argues statute can be read to encompass commercial dealing in many cases | Held: Not a match — statute lacks a required commercial-dealing element |
| Whether the statute is divisible such that the modified categorical approach applies | § 475.992(1)(a) is indivisible: solicitation is a judicial gloss on "attempt," not an enumerated alternative | Government sought remand to BIA to analyze divisibility or argued prior cases permitted modified categorical approach | Held: Statute is indivisible regarding solicitation-as-attempt; modified categorical approach does not apply |
| Whether prior Ninth Circuit decision (Chavaria-Angel) controls | Sandoval argued Chavaria-Angel relied on disapproved methodology and Descamps/Mathis require divisibility analysis | Government relied on Chavaria-Angel to support using state records and modified categorical approach | Held: Chavaria-Angel is not controlling — it used a pre-Descamps method and failed to perform required divisibility analysis |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (establishes the categorical approach and restricts use of modified categorical approach to divisible statutes)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state offense counts as federal drug felony only if it proscribes conduct punishable as a felony under federal law)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (explains statutory cross-references in aggravated-felony analysis and meaning of illicit trafficking)
- Rivera-Sanchez v. INS, 247 F.3d 905 (9th Cir. 2001) (solicitation alone does not constitute federal attempted distribution)
- Mathis v. United States, 579 U.S. 500 (2016) (divisibility hinges on whether statutory alternatives are elements requiring jury unanimity)
- United States v. Chavaria-Angel, 323 F.3d 1172 (9th Cir. 2003) (pre-Descamps decision applied modified categorical approach without proper divisibility analysis; not controlling here)