Ochoa-Salgado v. Garland, 5 F.4th 615

Background

Arturo Ochoa-Salgado, a lawful permanent resident, was convicted in Texas in 2008 under Tex. Health & Safety Code § 481.112 for manufacture/delivery of cocaine; the statute defines "deliver" to include "offering to sell."
DHS commenced removal proceedings; the government initially alleged removal as an aggravated felony (drug-trafficking) but shifted grounds to removability under § 1227(a)(2)(B)(i).
The IJ and BIA found Ochoa-Salgado ineligible for cancellation of removal because of a predicate drug offense; Fifth Circuit earlier remanded after Mathis.
After Mathis, Fifth Circuit precedent recharacterized § 481.112 as indivisible, meaning record evidence cannot disaggregate theories (e.g., offer-to-sell) unless the statute is divisible.
On remand the BIA concluded the offer-to-sell theory qualifies as an attempted delivery under the Controlled Substances Act (CSA); Ochoa-Salgado petitioned for review contesting that conclusion.
The Fifth Circuit must decide whether an offer to sell under Texas law falls within the CSA’s definition of distribution (including attempted transfer), thereby making the conviction an aggravated felony and disqualifying cancellation relief.

Issues

Issue	Ochoa-Salgado's Argument	Government's Argument	Held
Whether prior Fifth Circuit panel decisions relying on government concessions bind this panel	Prior panels concluded an offer-to-sell is outside the CSA; that precedent should control	Those prior rulings rested on government concessions and lacked reasoned consideration, so they are not binding	Panel held concession-based rulings without reasoned analysis are not binding precedent here
Whether § 481.112 is divisible (so record evidence can identify the theory of conviction)	§ 481.112 is indivisible after Mathis; record evidence cannot be used to pick a non-CSA theory	Agrees indivisible but contends offer-to-sell still falls within CSA as attempt	Court accepted indivisibility but proceeded to analyze whether offer-to-sell fits the CSA
Whether an offer to sell under § 481.112 contains the mens rea and conduct to constitute attempted distribution under the CSA	Offer-to-sell can be mere words or fraud and therefore may lack intent to distribute	Texas law requires intent to sell for § 481.112; an offer to sell is strongly corroborative of intent and is a substantial step	Court held Texas law requires intent to sell and that an offer to sell is a substantial step, so it qualifies as attempted delivery under the CSA
Whether characterizing an offer to sell as solicitation (not attempt) excludes it from the CSA	Offer-to-sell is solicitation distinct from attempt and thus outside CSA	Solicitation and attempt overlap; offer-to-sell is not solicitation of another to deliver but an act by the defendant toward delivery	Court rejected the solicitation distinction and held offer-to-sell can constitute attempt under the CSA

Key Cases Cited

Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (divisibility rule for the categorical approach to prior convictions)
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. 2009) (aggravated felony includes state drug-trafficking crimes punishable under the CSA)
Alejos-Perez v. Garland, 991 F.3d 642 (5th Cir. 2021) (describes categorical approach steps)
United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017) (interpreting § 481.112 post-Mathis)
United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) (panel relied on government concession re: offer-to-sell)
United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) (limits rule-of-orderliness application to issues given reasoned consideration)
United States v. Evans, 699 F.3d 858 (6th Cir. 2012) (holding offer to sell is a substantial step toward distribution)
United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) (construed offer-to-sell as solicitation, a view the Fifth Circuit declined to follow)
Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013) (offer to sell constitutes substantial step and attempt)
United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974) (payment/transaction steps can be substantial steps toward distribution)

Outcome: Petition for review denied.