Lead Opinion
Opinion by Judge N.R. SMITH; Concurrence by Judge OWENS; Concurrence by Judge WATFORD.
joined by THOMAS, Chief Judge, and GOULD, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, NGUYEN, and OWENS, Circuit Judges:
ORDER
The Opinion filed on December 28, 2015, is amended as follows:
For purposes of cancellation of removal, Almanza alleges that he arrived in the United States in 1989. Neither the immigration judge (“IJ”) nor the Board of Immigration Appeals (“BIA”) addressed whether Almanza accrued the ten years of physical presence needed to qualify for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(A), and therefore neither do we. Navas v. INS,217 F.3d 646 , 658 n. 16 (9th Cir.2000).
With this amendment, the Petitioner’s Unopposed Motion to Amend Opinion is GRANTED. No petition for rehearing or rehearing en banc was filed within the original time period, and that time period has now expired. No subsequent petitions for rehearing or rehearing en banc shall be filed.
OPINION
California Vehicle Code § 10851(a) is an indivisible statute, criminalizing both conduct that would and would not constitute a crime involving moral turpitude. Therefore, section 10851(a) cannot be a categorical match to a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). Thus, we grant the pеtitions and remand for further proceedings, because a conviction under' this statute does not render a petitioner ineligible for cancellation of removal.
I. FACTS AND PROCEDURAL HISTORY
Gabriel Almanza-Arenas (“Almanza”) is a native and citizen of Mexico. Almanza last entered the United States without being admitted or paroled in October 2000.
In his application for cancellation of removal, Almanza disclosed that he pleaded guilty to a misdemeanor violation of California Vehicle Code § 10851(a) (under People v. West,
Thus, the IJ held a hearing regarding Almanza’s eligibility for cancellation of removal and voluntary departure. At the hearing, the DHS argued that Almanza’s conviction disqualified him from cancellation of removal because a conviction for violation of California Vehicle Code § 10851(a) presents a crime involving moral turpitude. The DHS also placed into evidence three state court documents: (1) a felony complaint charging Almanza with a violation of California Vehicle Code § 10851(a);
After the hearing, the IJ denied Alman-za’s petition for cancellation of removal. The IJ found that Almanza had not met his burden of proof to show eligibility for cancellation of removal, because he had not shown that he was convicted of the lesser “temporary” offense in section 10851(a).
The BIA affirmed the IJ’s holding and dismissed Almanza’s appeal in a published decision. Matter of Almanza-Arenas, 24 I. & N. Dec. 771 (B.I.A.2009). The BIA concluded that, because Almanza’s application for relief was filed after May 11, 2005, the REAL ID Act applied to his case. Id. at 774. The BIA concluded that the conviction record before the IJ was ambiguous, and it was Almanza’s duty to produce evidence (including the requested plea colloquy) that he did not commit a crime involving moral turpitude because he had the burden of proof. Id. In particular, the BIA concluded Almanza did not meet his burden of proof of showing eligibility for cancellation of removal, because he did not produce more specific evidence (as the IJ requested) to show that he did not intend to permanently deprive the owner of his or her vehicle.
Petitioner timely petitioned for review.
II. ANALYSIS
To determine whether section 10851(a) is a crime involving moral turpitude, we apply the three-step process set forth in Descamps v. United States, —— U.S. -,
At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. If this “categorical approach” reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies as [a crime involving moral turpitude]. When a statute is “overbroad,” meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is “divisible” or “indivisible.” If the statute is indivisible, “our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Only when a statute is overbroad and divisible do we turn to step three — the “modified categorical approach.” At this step, we may examine certain documents from the defendant’s record of conviction to determine what elements of the divisible statute he was convicted of violating.
Lopez-Valencia v. Lynch,
A. Step One: Compare Elements of the State Offense to the Elements of the Federal Generic Offense.
To determine whether a state criminal statute is categorically a crime involving moral turpitude, we use a two-step process, each step with a different standard of review. Castrijon-Garcia v. Holder,
To identify the elements of California Vehicle Code § 10851(a), we apply California rules of statutory construction. Lieberman v. Hawkins (In re Lieberman),
Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle ... is guilty of [unlawfully taking or driving a vehicle.8 ]
The language of the statute shows that there are three elements of this offense: (1) a person drove or took a vehicle not his or her own; (2) the owner did not provide consent to drive or take his or her vehicle; and (3) the person drove or took the vehicle with intent either to permanently or temporarily deprive the owner, whether with or without intent to steal the vehicle. The last element of section 10851(a) (relevant here) criminalizes the driving or taking of a vehicle without consent regardless of whether the individual had the “intent to either permanently or temporarily deprive the owner” of his or her vehicle.
Comparing section 10851(a) to the generic definition of a crime involving moral turpitude, we look to see if the crime is “vile, base, or depraved” and “violates accepted moral standards.” Ceron v. Holder,
B. Step Two: Is the Statute Divisible or Indivisible?
Step two requires us to determine whether section 10851(a) is a divisible or indivisible statute. In other words, we must determine whether section 10851(a) has “multiple, alternative elements, and so effectively creates ‘several different crimes.’ ” Descamps,
Our specific inquiry here is whether section 10851(a)’s “intent” element (to permanently or temporarily deprive) is divisible or indivisible. We therefore must determine whether the text of section 10851(a) sets forth elements or means. We do this by first looking to the plain language of the statute.
1. Elements versus Means.
Divisibility, like element identification, is reviewed de novo, because it “is a purely legal question which does not require any additional fact-finding.” Medino-Lara v. Holder,
As outlined in Descamps, we distinguish indivisible statutes from divisible statutes by determining whether the statutes provide multiple, alternative means of committing the crime. See
In Richardson v. United States,
If the statute creates a single element, a “series,” in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three. On the other hand, if the statute makes each “violation” a separate element, then the jury must agree unanimously about which three crimes the defendant committed.
Id. at 818,
Richardson makes clear that the first step in determining elements versus means (and thus divisibility) begins with the text of the statute of conviction.
We confirm this statutory interpretation by first examining the Shepard documents to see whether the statute displays alternative elements instead of alternative means of committing the same crime.
Even though the plain language of the statute is confirmed by the Shepard documents (section 10851(a) only has three elements), the BIA found (and the government аrgued) that the statute is divisible because the intent element was written in the disjunctive. Therefore, to further support our analysis, we verify that our interpretation of section 10851(a)’s intent element is the same as the interpretation of the California courts.
2. Application of State Law
Looking to state law to determine a state’s interpretation of its own statutes is
We similarly looked to the state interpretation of its own statute in two of our recent cases, Rendon v. Holder,
Several of our sister circuits have also looked to state law to verify whether a state statute has elements or means. For instance, in United States v. Pate, the Eighth Circuit concluded that the term “flee,” which was defined to mean “increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer” was indivisible, despite its disjunctive text.
We recognize that not all of our sister circuits agree that courts should look to state law to determine a statute’s elements following Descamps. See United States v. Trent,
This circuit split arises from a disagreement regarding the meaning of footnote 2 in Descamps. See Descamps,
And if the dissent’s real point is that distinguishing between “alternative elements” and “alternative means” is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved in Taylor and Shepard— i.e., indictment, jury instructions, plea colloquy, and plea agreement — would reflect the crime’s elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.
Id. We read this footnote as a guide to courts to look at Taylor and Shepard documents if there were difficulty in distinguishing between the elements and means and what a jury necessarily would have to unanimously conclude.
Determining the elements of section 10851(a), as defined by California law, we need not go beyond California’s pattern criminal jury instructions
1. A person took or drove a vehicle belonging to another person;
2. The other person had not consented to the taking or driving of [his] [her] vehicle; and
3. When the person took or drove the vehicle, [he] [she] had the specific intent to deрrive the owner either permanently or temporarily of [his] [her] title to or possession of the vehicle.
This jury instruction makes clear that California law treats the disjunctive phrases in the statute as means of committing the offense not separate elements creating new crimes. Therefore, the distinction between whether Almanza intended to permanently or temporarily deprive the owner of his or her vehicle need not be determined by an unanimous jury. Thus, section 10851(a) is an indivisible statute.
This conclusion ends our inquiry; we need not proceed to step three. We have “examine[d] what the state conviction necessarily involved, not the facts underlying the case, [and] we must presume that the conviction rested upon nothing more than the least of the acts criminalized.” Moncrieffe v. Holder, — U.S. -,
The petitions for review are GRANTED, and the matter is REMANDED to the BIA for further proceedings.
Notes
. For purposes of cancellation of removal, Almanza alleges that he arrived in the United States in 1989. Neither the immigration judge ("IJ") nor the Board of Immigration Appeals ("BIA”) addressed whether Almanza accrued the ten years of physical presence needed to qualify for cancellation of removal, 8 U.S.C. § 1229b(b)(1)(A), and therefore neither do we. Navas v. INS,
. Because Almanza filed his application for cancellation of removal after May 11, 2005, the REAL ID Act applies. See Real ID Act of 2005, Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (codified in scattered sections of 8 U.S.C.) (Provisions of the REAL ID Act apply to “applications for ... relief from removal made on or after” May 11, 2005). Al-manza argues that the REAL ID Act should not apply because he was in removal proceedings prior to this date. There is no authority to support this argument; application of the REAL ID Act is based on the filing date of the application for cancellation of removal. See Shrestha v. Holder,
.A West plea is "a plea of nolo contendere, not admitting a factual basis for the plea. Such a plea, also referred to as an Alford plea, based on North Carolina v. Alford,
. The Complaint alleged in Count 1 that Al-manza "did unlawfully drive and take a vehicle, ... without the consent of and with intent either permanently or temporarily to deprive the owner of title and possession of said vehicle, in violation of VEHICLE CODE SECTION 10851(a).” The submitted Complaint crossed out one name and leaves the name "Raul Almanza.” Despite the reference to the wrong name, Almanza does not dispute that the submitted Complaint was the basis of his guilty plea.
. The IJ asked Almanza whether he was in the process of obtaining the transcript of the plea colloquy. Almanza did not present the transcript and argued that its admission was not necessary given his West plea (which is made without any admission to the facts).
. Because we conclude that section 10851(a) is indivisible, we do not reach the issue of whether Almanza met his burden of proof.
. Almanza’s petition for review included his motion for reconsideration, requesting that the BIA consider whether his offense qualified under the petty offense exception in INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii), and whether the offense is described in INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). The BIA dеnied Almanza’s request for reconsideration, concluding that "[e]ven though the conviction is not 'described under' section
. We acknowledge that section 10851(a) is divisible to the extent that it also pertains to a person who is an accessory or an accomplice. Duenas-Alvarez v. Holder,
. At this point in the analysis, Judge Watford mistakenly parts from Descamps precedent, instead basing his concurrence on “multiple ways a particular element can be satisfied” without authority for such departure. See Concurring Op. 484 (Watford, J.).
. Judge Watford mistakenly suggests that the majority opinion is instead "predicated on the
. The mere use of the disjunctive term "or” does not automatically make a statute divisible. See Rendon,
. Prior to Descamps, Judge Watford may have been correct that we should not look at Shepard documents prior to a determination oí divisibility. However, a crime is only divisible if it includes alternative elements not alternative means. See Descamps,
.We are mindful that prosecutors’ charging documents do not always charge a defendant properly. In some instances, prosecutors may fail to "select the relevant elements] from its list of alternatives,” Descamps,
.The Supreme Court has cautioned us not to engage in judicial factfinding. See James v. United States,
. Descamps does not preclude us from looking to state law to determine whether the statute is indivisible after we have examined the Shepard documents. See Descamps,
. Looking to state court precedent or to a state's pattern jury instructions (which are based on that state’s general law) solely to verify how a state instructs a juty as to the elements of a state offense is consistent with the Supreme Court’s mandate "to treat every conviction of a crime in the same manner.” Descamps,
. The Fifth Circuit has not addressed the elements versus means distinction, but rather
. Judge Watford agrees with these sister circuits and would treat elements and means interchangeably. His approach does not seem to narrow the range of cases where we can look beyond the statutory elements. See Descamps,
. Although we are mindful of the Supreme Court’s warning that "a court need not parse state law” to determine elements versus means, Descamps,
. Jury instructions are Shepard "approved” documents only when they are submitted in the underlying action as part of the record. Shepard v. United States,
. The use of the pattern CALJIC jury instructions is "not mandated by statute, [but] their use is recommended by the Judicial Council of California (Cal. Standards Jud. Admin. § 5).” People v. Prettyman,
Concurrence Opinion
joined by TALLMAN, BYBEE, and CALLAHAN, Circuit Judges, concurring:
We should no longer tinker with the machinery of Descamps.
A better mousetrap is long overdue. Rather than compete with Rube Goldberg, we instead should look to a more objective standard, such as the length of the underlying sentence, before deciding if someone should be removed from our country. While no regime is foolproof, this approach cannot be worse than what we have now.
To make this happen, we need Congress’s attention. And to get Congress’s attention, the Supreme Court may need to wipe the slate clean by junking the current state of law. See Johnson v. United States, — U.S. -,
We are way past that here.
. See also Descamps v. United States, — U.S. -,
Concurrence Opinion
concurring in the judgment:
I agree that Gabriel Almanza-Arenas’ conviction under California Vehicle Code § 10851(a) is not a conviction for a crime involving moral turpitude. But I disagree with the court’s conclusion, predicated on the same reasoning our court adopted in Rendon v. Holder,
I
The only question before us is whether Almanza-Arenas’ conviction under § 10851(a) counts as a conviction for a crime involving moral turpitude under the cancellation of removal statute. To answer that question, we use the so-called “categorical approach,” which requires us to compare the elements of the statute under which the petitioner was convicted to the elements of the relevant generic offense to see if the two sets of elements are a categorical match. Descamps,
The next step is to compare those elements to the elements of the relevant generic offense. In this instance, we don’t have a federal statute that specifies the relevant generic offense. The cancellation of removal statute simply refers to “a crime involving moral turpitude.” 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2). The Board of Immigration Appeals (BIA) has given substance to that vague phrase by specifying over time which generic offenses involve moral turpitude and which do not. With respect to the closest analogue for our purposes, the BIA has held that a theft offense constitutes a crime involving moral turpitude if the defendant intended to permanently deprive the owner of the property, but not if the defendant intended to effect only a temporary deprivation. See Castillo-Cruz v. Holder,
Comparing the elemеnts of § 10851(a) to the elements of the relevant generic offense, it’s clear that § 10851(a) is not a categorical match. The statute “criminalizes a broader swath of conduct than the relevant generic offense,” Descamps,
That conclusion, however, does not end our inquiry. Whenever a state statute covers a broader range of conduct than the relevant generic offense, we ask whether the statute is divisible' — -that is, whether the statute “comprises multiple, alternative versions of the crime.” Id. at 2284. If it does, and if at least one of those alternatives would be a categorical match for the generic offense, we then use the modified categorical approach to figure out which version of the offense the defendant was convicted of. Id. at 2285.
So when does a statute comprise “multiple, alternative versions of the crime”? Descamps seems to offer a simple answer: whenever the statute itself specifies, in the alternative, multiple ways а particular element can be satisfied. Také the two hypo
We have real-world examples of divisible statutes, too. In Moncrieffe v. Holder, — U.S. -,
Contrast those statutes with the statute Descamps held is not divisible (at least with respect to the element at issue in that case)! California Penal Code § 459 provides that every person who “enters any house, room, apartment, [or any of about two dozen other locations] with intent to commit grand or petit larceny or any felony is guilty of burglary.” That statute has several elements, two of which could potentially have been divisible: the location that must be entered (house, room, etc.) and the required mens rea (intent to commit grand larceny, petit larceny, or any felony). The Court did not need to explore whether those elements were divisible because the statute’s remaining element— the “entry” element — was indivisible and rendered the statute broader than the generic burglary offense. The generic offense requires “breaking and entering or similar conduct,” whereas the California statute covers any person who “enters” certain locations, whether the entry is lawful or unlawful. Descamps,
What seems to define a divisible statute, then, is the fact that the statute itself specifies alternative ways a particular element can be satisfied. Id. at 2285 n. 2. That allows the court to determine, at least potentially, “which statutory phrase was the basis for the conviction.” Id. at 2285. Indivisible statutes, by contrast, lack this defining tеxtual feature. They contain a single statutory phrase that is not broken down into statutorily specified alternatives,
Assuming I’m right about Descamps ’ approach to divisibility, this is an ‘ easy case. Section 10851(a) seems no different from the divisible statutes I mentioned earlier. It defines an element of the offense — the mens rea with which the defendant must act — by specifying alternative ways that element can be satisfied: either by intending to permanently deprive the owner of the vehicle, or by intending to temporarily deprive the owner of the vehicle. No less than in the other statutes, the alternative statutory phrases describe alternative versions of the crime, which would allow a prosecutor to narrow the offеnse by selecting one of the statutorily specified alternatives.
Some judges on our court, including the panel members in Rendon and the majority of the en banc panel in this case, have rejected this straightforward approach to divisibility. They have concluded that it is not enough, as Descamps seems to hold, that a statute is “drafted in the alternative.” They believe we must ask, in addition, whether the statute’s disjunctively listed phrases describe alternative “means” or alternative “elements.” To answer that question, they say, we must consult state case law and model jury instructions. Doing so will tell us, in a case in which the prosecutor charges multiple alternative statutory phrases, whether the jury must unanimously agree on one of them in order to convict. If jury unanimity is required, the statutory phrases are alternative elements; if jury unanimity is not required, the statutory phrases are alternative nieans. A statute may be deemed divisible if it contains alternative elements, but not if it contains alternative means. Or so the thinking goes. See Maj. op. at 477-82.
This focus on distinguishing between “elements” arid “means” seems inconsistent with Descamps ’ approach to divisibility. For one thing, the Court in Descamps never suggested that state case law or model jury instructions would need to be consulted in order to determine whether a statute is divisible. As noted above, the Court seemed to hold that the analysis involves a purely textual inquiry. The Court looked to state case law and model jury instructions only when determining what conduct was encompassed by a particular element, a matter that state law unquestionably controls. See Descamps,
For another thing, in response to the dissent’s emphasis on the distinction between elements and means, the Court seemed to indicate that such a distinction is irrelevant, at least for purposes of determining whether a statute is divisible. “Whatever a statute lists (whether elements or means),” the Court wrote, “the documents we approved in Taylor and Shepard — i.e., indictment, jury instructions, plea colloquy, and plea agreement— would reflect the crime’s elements. So a court need not parse state law in the way
Lower courts have offered conflicting readings of this passage. (See, for exаmple, the eases cited in note 1, • swpra.) What I understand the passage to say is that it doesn’t matter whether alternative statutory phrases would be labeled “elements” or “means” under state law. Whether a statute is divisible under the categorical approach is a question of federal law, and we can assess divisibility básed on an examination of the text of the statute alone. If the statute is drafted in the alternative, it’s at least possible that the offense of conviction was narrowed by selecting one of the statutorily specified alternatives. Examination of the documents approved in Shepard v. United States,
For example, let’s assume a statute contains three alternative statutory phrases that would be deemed “means” rather than “elements” under state law, because in a case charging all three the jury would not need to agree unanimously on which one was satisfied. Even in that scenario, the offense of conviction could still be narrowed if, for example, in the specific case at hand the prosecutor actually charged only one of the statutory phrases. Or even if thе prosecutor charged all three in the disjunctive, the defendant may have admitted just one- of them in his plea agreement and plea colloquy. Or, if the case proceeded to trial, the jury may have been instructed on just one of the statutory phrases, such that the jury had to find that particular phrase satisfied in order to convict. In those cases, too, by examining the Shepard documents a court could determine “which statutory phrase was the basis for the conviction.” Descamps,
II
If § 10851(a) is indeed divisible, we can apply the modified categorical approach, which allows us to review the Shepard documents to see if Almanza-Arenas was convicted of a narrower version of the offense. The Shepard dоcuments include the indictment or information and, in cases resolved by guilty plea, the plea agreement and plea colloquy. Descamps,
I concur in the court’s judgment because the Shepard documents in this case do not establish that Almanza-Arenas was convicted of a narrower version of the § 10851(a) offense. Count 1 of the complaint charged that, on a specified date, Almanza-Arenas “did unlawfully drive and take a vehicle, the personal property of Guadalupe Jimenez, without the consent of and with intent either permanently or temporarily to deprive the owner of title to and possession of said vehicle.” (Emphasis added.) Almanza-Arenas entered a guilty plea to Count 1 under People v. West,
In this instance, then, use of the modified categorical approach does not show that Almanza-Arenas was convicted of a narrower version of the offense. It establishes only that he was convicted of the broader version, encompassing an intent to permanently or temporarily deprive the owner of the vehicle. When a defendant pleads guilty to an offense encompassing multiple, alternative ways of satisfying a particular element, the conviction is deemed to rest on only the least of the acts criminalized. Mellouli v. Lynch, — U.S. -,
The government argues that Almanza-Arenas’ conviction nonetheless qualifies as a conviction for a crime involving moral turpitude because, under the cancellation of removal statute, he bore the burden of proving eligibility for such relief and one of the requirements for doing so is proving that he has not been convicted of a crime involving moral turpitude. When a petitioner seeking cancellation of removal has been convicted under an overbroad statute like § 10851(a), the government contends that the record will always be inconclusive as to which version of the offense he committed: While it’s possible the petitioner committed the version of the offense that is not a categorical match, it’s also possible that he committed the version that is a categorical match. Relying on our decision in Young v. Holder,
It’s true, as the government notes, that uncertainty remains as to what Almanza-Arenas actually did to violate § 10851(a). He may have acted with the intent to permanently deprive the victim of her vehicle, or he may have intended only a temporary deprivation — we don’t know. But uncertainty on that score doesn’t matter. What matters here is whether Al-manza-Arenas’ conviction necessarily established that he acted with the intent to permanently deprive the owner of her vehicle, the fact required to render the offense a crime involving moral turpitude. That is a legal question with a yes or no answer, see Mellouli,
Ill
The BIA relied on an alternative ground for declaring Almanza-Arenas ineligible for cancellation of removal, but that ground is also legally unsound.
During the proceedings before the immigration judge, the government produced some of the Shepard documents relating to Almanza-Arenas’ § 10851(a) conviction. The government did not, however, produce a transcript of the plea colloquy, no doubt recognizing that it wouldn’t reveal any useful information, since Almanza-Arenas entered a West plea. Nonetheless, the immigration judge ordered Almanza-Arenas to produce the plea colloquy. When Alman-za-Arenas failed to do so, the immigration judge relied on that failure to conclude that he had not carried his burden of proving eligibility for relief. The BIA affirmed the immigration judge’s ruling.
The BIA’s decision might have been supportable had the immigration judge ordered Almanza-Arenas to produce a Shepard document potentially relevant to the analysis required under the modified categorical approach. Congress has assigned petitioners seeking cancellation of removal the burden of proving eligibility for such relief. 8 U.S.C. § 1229a(c)(4). It would be an odd regime in which a petitioner could establish eligibility by refusing to produce a document that might show he is statutorily ineligible, at least where the immigration judge specifically orders production of such a document and the petitioner is capable of complying with the order. But that is not the situation here. Because Almanza-Arenas entered a West plea, he made no factual admissions in the course of pleading guilty. See People v. Rauen,
. See Rendon v. Holder,
. Contrary to the majority's suggestion, nothing about this approach to divisibility requires looking at "the facts of each case” to "discover the means of how the person committed the offense.” Maj. op. at 479 n. 14. It just requires looking at the text of the statute.
. One aspect of the majority's approach that seems especially at odds with Descamps is the majority’s reliance on the Shepard documents in Almanza-Arenas' own case to "confirm" its view that § 10851(a) is indivisible. Maj. op. at 478. A statute's divisibility isn't determined on a case-by-case basis, so it’s hard to see why one would consult the Shepard documents in any given case when trying to make that threshold determination. As I understand Descamps’ instructions, we may look to the Shepard documents only after we've first determined that the statute is divisible, not when trying to decide whether the statute is divisible or indivisible.
. Several other circuits have adopted the rule in Young. See Peralta Sauceda v. Lynch,