Sandoval v. Sessions
866 F.3d 986
9th Cir.2017Background
- Leonel Sandoval, a lawful permanent resident since 1990, was convicted in Oregon in 1998 of delivery of a controlled substance (heroin) under ORS § 475.992(1)(a); he performed community service and probation.
- In 2010 the government initiated removal proceedings, asserting Sandoval’s conviction was (1) an aggravated felony (drug trafficking) under 8 U.S.C. § 1101(a)(43) and (2) a controlled-substance-related offense, which together would bar cancellation of removal.
- Sandoval argued Oregon’s delivery statute criminalizes mere solicitation (offers to deliver), which federal drug law does not treat as attempted delivery, so the state statute is overbroad for categorical-match purposes.
- The IJ and BIA found Sandoval’s conviction an aggravated felony and ordered removal; Sandoval petitioned for review in the Ninth Circuit.
- Oregon case law (State v. Sargent, State v. Pollock, State v. Self) treats an offer/solicitation to transfer as a substantial step and thus as attempt/delivery under ORS § 475.992(1)(a).
- Ninth Circuit precedent holds solicitation alone is not an ‘‘attempted’’ delivery under the federal Controlled Substances Act (e.g., United States v. Rivera‑Sanchez). The court therefore examined whether the Oregon statute is a categorical match or divisible for the modified categorical approach.
Issues
| Issue | Sandoval's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether ORS § 475.992(1)(a) is a categorical match to a federal "drug trafficking crime" (aggravated felony) | Oregon law criminalizes mere solicitation/offer to deliver, which federal law does not treat as attempt; thus the statute is overbroad | The statute requires more than a mere offer; convictions can reflect actual or attempted delivery and thus may match the federal offense | Not a categorical match: Oregon "delivery" includes solicitation, which federal law does not criminalize as attempt/delivery, so conviction is not an aggravated felony under the categorical approach |
| Whether the modified categorical approach may be used to look beyond the statute to determine if Sandoval’s specific conviction involved conduct matching the federal offense | If statute is indivisible, modified categorical approach cannot be used; Oregon’s inclusion of solicitation derives from judicial interpretation and is not an enumerated alternative | Urged remand to BIA to determine divisibility; argued prior Ninth Circuit decisions applied modified categorical approach to ORS § 475.992 | Statute is indivisible as to solicitation/attempt because solicitation is judicially incorporated into the meaning of "attempt/delivery," not an enumerated statutory alternative; modified categorical approach inapplicable |
| Whether prior Ninth Circuit precedent (Chavaria‑Angel) controls and permits modified categorical inquiry | Sandoval distinguished Chavaria‑Angel as relying on an approach later rejected in Descamps and Mathis | Government relied on Chavaria‑Angel to justify use of modified categorical approach | Chavaria‑Angel is not controlling because it applied an evidence-based method condemned by Descamps; divisibility analysis controls |
| Remedy | Sandoval sought reversal of aggravated-felony determination and relief eligibility | Government sought affirmance or remand for BIA divisibility finding | Petition granted; conviction is not an aggravated felony and case remanded for further proceedings |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (establishes categorical approach and condemns evidence‑based method)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility analysis: distinguishes elements from means)
- United States v. Rivera‑Sanchez, 247 F.3d 905 (9th Cir. 2001) (mere solicitation not an "attempt" under federal Controlled Substances Act)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state offense is a federal "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under federal law)
- United States v. Chavaria‑Angel, 323 F.3d 1172 (9th Cir. 2003) (prior decision applying modified categorical approach to ORS § 475.992, later distinguished as inconsistent with Descamps)