Srecko Pesikan v. Attorney General United States, 83 F.4th 222

Srecko Pesikan, a Bosnian lawful permanent resident, caused a 2017 highway crash; police found alcohol, marijuana, and blood tests showed cocaine, marijuana, alprazolam, and alcohol.
In 2018 he was convicted in Pennsylvania on multiple DUI counts under 75 Pa. Cons. Stat. § 3802, with the convictions merged into Count 2 for driving under the influence of a Schedule I controlled substance (marijuana) under § 3802(d)(1)(i).
DHS charged Pesikan as removable under INA § 1227(a)(2)(B)(i) as an alien convicted of an offense relating to a federally controlled substance (the CSA).
The IJ and the BIA held § 3802(d)(1)(i) divisible by the identity of the controlled substance and applied the modified categorical approach to sustain removability.
The Third Circuit held that § 3802(d)(1)(i) is indivisible (it lists alternative means, not alternative elements), model jury instructions are not dispositive, and the conviction therefore cannot categorically match a federal CSA offense.
Court granted Pesikan’s petition for review, reversed the removal order based on the DUI conviction, and dismissed the separate waived appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 75 Pa. Cons. Stat. § 3802(d)(1)(i) is divisible by identity of the controlled substance	§ 3802(d)(1)(i) is indivisible because it prescribes a single harm and lists diverse means (multiple substances)	The statute is divisible; identity of the drug is an element permitting the modified categorical approach	Indivisible: identity of substance is not an element; statute lists alternative means, not separate crimes
Whether model jury instructions / bill of information can render substance identity an element	Jury instructions are nonbinding guides; charging papers cannot change statutory elements	Model instructions and Pesikan’s charging instrument (naming marijuana) show the state treated substance identity as an element	Court: model instructions are not authoritative; the charging instrument cannot alter statutory elements
Whether prior precedents (Singh, Swavely) require treating schedule-incorporating statutes as divisible	Singh does not support treating all schedule‑incorporating statutes as divisible; Swavely relied on penalty distinctions absent here	Singh and Swavely support divisibility where state courts or penalty schemes differentiate by substance	Court: Singh is inapposite (different statute and state‑court basis); Swavely relied on penalty provisions not present here; precedents do not compel divisibility

Mellouli v. Lynch, 575 U.S. 798 (2015) (categorical approach required for immigration removability analyses based on state convictions)
Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach applies only to divisible statutes)
Mathis v. United States, 579 U.S. 500 (2016) (distinguishing elements from means; divisibility analysis principles)
Moncrieffe v. Holder, 569 U.S. 184 (2013) (limits on considering underlying facts when using the categorical approach)
Singh v. Att’y Gen., 839 F.3d 273 (3d Cir. 2016) (divisibility holding for a different Pennsylvania controlled‑substance statute; not dispositive here)
Hillocks v. Att’y Gen., 934 F.3d 332 (3d Cir. 2019) (Third Circuit immigration review standards and discussion of Pennsylvania schedules)
Larios v. Att’y Gen., 978 F.3d 62 (3d Cir. 2020) (on use of model jury instructions to illuminate statutory elements in some contexts)
Commonwealth v. Given, 244 A.3d 508 (Pa. Super. Ct. 2020) (Pennsylvania Superior Court treating § 3802(d)(1) convictions as arising from a single harm; merger rationale)
Commonwealth v. Westlake, 295 A.3d 1281 (Pa. Super. Ct. 2023) (applying merger principle to multiple DUI convictions involving different drugs)