JORGE ROMERO-MILLAN, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent; ERNESTO HERNANDEZ CABANILLAS, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent; MARCO ANTONIO GARCIA-PAZ, AKA Garcia Marco A, AKA Garcia Marco Antonio, AKA Marco Antonia Garcia, AKA Marco Antonio Garcia, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 16-73915, No. 17-72893, No. 18-71555
United States Court of Appeals for the Ninth Circuit
May 4, 2020
Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges.
Agency Nos. A077-138-666, A095-285-170, A034-063-749
FOR PUBLICATION
Filed May 4, 2020
Before: Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges.
Order
SUMMARY*
Certified Questions to State Court / Immigration
The panel certified the following questions of state law to the Arizona Supreme Court:
- Is Arizona‘s possession of drug paraphernalia statute,
A.R.S. § 13-3415 , divisible as to drug type? - Is Arizona‘s drug possession statute,
A.R.S. § 13-3408 , divisible as to drug type? - Put another way, is jury unanimity (or concurrence) required as to which drug or drugs listed in
A.R.S. § 13-3401(6), (19), (20), or (23) was involved in an offense under either statute?
ORDER
The issues for decision in these cases are whether Arizona‘s possession of drug paraphernalia statute (
I. Factual and Procedural Background
A. Romero-Millan
Jorge Romero-Millan, pursuant to a plea agreement, was convicted of possessing or using drug paraphernalia in violation of
B. Hernandez Cabanillas and Garcia-Paz
Ernesto Hernandez Cabanillas, a native and citizen of Mexico who has lawfully resided in the United States since 2004, was convicted pursuant to a plea agreement of possessing a narcotic drug for sale in violation of
II. Governing Federal Law
At issue in these cases is whether the two Arizona statutes are divisible as to drug type. We thus provide a brief background as to the relevant federal inquiry.
For an alien to be removed under
“At the first step, we employ ‘the categorical approach, [in which] we examine only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal, without looking to the actual conduct underlying the petitioner‘s offense.‘” Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (alteration in original) (quoting Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014)). “[I]f the categorical approach reveals that the elements of the state ... crime are broader than the elements of the federal offense, then the state crime is not a categorical match.” Id.
If the statute is not a “categorical” match the court must move on to determine whether the statute is “divisible,” namely whether it “sets out one or more elements of the offense in the alternative” as opposed to listing alternative methods of committing the crime. Descamps, 570 U.S. at 257; see also Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A state statute contains alternative “elements” and not merely alternative “means” if a jury has to “unanimously agree that [the defendant] committed a particular substantive offense contained within the disjunctively worded statute.” Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014) (emphasis added). In order to determine whether a statute lays out alternative elements, “a court looks first to the statute itself and then to the case law interpreting it.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th Cir. 2017).
If the statute is not divisible, the analysis stops, as the alien‘s state law conviction cannot be found to be related to a controlled substance under federal law. However, if the statute is divisible, the court proceeds to the third step and applies the “modified categorical approach.” Under this approach, courts may “consult a limited class of documents ... to determine which alternative formed the basis of the defendant‘s prior conviction.” Descamps, 570 U.S. at 257. “These documents include ‘the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.‘” United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th Cir. 2015) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)). If, using the modified categorical approach, the court determines that the state law is related to a controlled substance under federal law, the alien is removable.
These cases turn on the second step of the analysis, namely whether
narcotic drug, and the jury will not be asked to decide which drug it was. Examples are rare in which the prosecutor claims a defendant possessed heroin, and the defendant counters by arguing that he instead possessed cocaine.
The question, therefore, is not a factual one—whether, in most cases, a jury will tend to agree on the underlying drug a defendant possessed—but a legal one—whether a jury must agree, as a matter of law, on what drug the defendant possessed. We find it difficult to determine the answers from existing Arizona case law.
III. Parties’ Arguments
A. A.R.S. § 13-3415
Petitioner, Romero-Millan, argues that the specific drug underlying a violation of
The government argues that the specific drug underlying a violation of
B. A.R.S. § 13-3408
Petitioners, Cabanillas and Garcia-Paz, argue, among other things, that the text of the statute, as well as Arizona cases interpreting it and the pattern jury instructions, indicate that the jury need not agree which narcotic drug was present. See, e.g., Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *1 (“[U]nder the language of [
The government contends, among other things, that Arizona appeals courts have permitted multiple convictions under
IV. Certified Questions and Further Proceedings
To analyze the divisibility of a state statute, we look to authoritative sources of state law such as state court decisions and the wording of the statute in question. See Mathis, 136 S. Ct. at 2256. Taking this guidance, we certify the following questions to the Arizona Supreme Court:
- Is Arizona‘s possession of drug paraphernalia statute,
A.R.S. § 13-3415 , divisible as to drug type? - Is Arizona‘s drug possession statute,
A.R.S. § 13-3408 , divisible as to drug type? - Put another way, is jury unanimity (or concurrence) required as to which drug or drugs listed in
A.R.S. § 13-3401(6), (19), (20), or (23) was involved in an offense under either statute?
We respectfully ask the Arizona Supreme Court to exercise its discretionary authority to accept certification under
We acknowledge that this inquiry in the context of immigration cases like these is mostly a federal concern, as it is a product of federal law and impacts cases in federal court. Nonetheless, we recognize that Arizona has an interest in this question because of the potential impact on state cases. For example, if
We agree to abide by the decision of the Arizona Supreme Court. See Doyle v. City of Medford, 565 F.3d 536, 544 (9th Cir. 2009). If the court decides not to accept certification, we will resolve these questions following our best understanding of Arizona law.
The Clerk will file a certified copy of this order with the Arizona Supreme Court pursuant to Arizona Supreme Court Rule 27. This appeal is withdrawn from submission and will be resubmitted following the conclusion of proceedings in the Arizona Supreme Court. The Clerk is directed to administratively close this docket, pending further order. We retain jurisdiction over any further proceedings in this court. The parties will notify the Clerk within one week after the Arizona Supreme Court accepts or rejects certification and again within one week after that court renders an Opinion.
V. COUNSEL
Counsel for Petitioner Jorge Romero-Millan in Case No. 16-73915:
Gabriel Gomez Leyba
Crossroads Law Group, LLC
3200 N. Central Avenue, Suite 2475
Phoenix, AZ 85012
Phone: 602-377-9292
Counsel for Respondent William P. Barr, Attorney General, in Case No. 16-73915:
Emily Anne Radford
Nehal H. Kamani
Imran Raza Zaidi
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Petitioner Ernesto Hernandez Cabanillas in Case No. 17-72893:
Roberta Ann Wilson
Law Offices of Monica Sud-Devaraj, PLLC
141 E. Palm Lane, Suite 100
Phoenix, AZ 85004
Phone: 602-234-0782
Counsel for Respondent William P. Barr, Attorney General, in Case No. 17-72893:
Emily Anne Radford
David J. Schor
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: 202-305-7190
Counsel for Petitioner Marco Antonio Garcia-Paz in Case No. 18-71555:
Matthew Harrison Green
Green Evans-Schroeder
130 W. Cushing Street
Tucson, AZ 85701
Phone: 520-882-8852
Counsel for Respondent William P. Barr, Attorney General, in Case No. 18-71555:
Joseph H. Hunt
Jeffrey R. Leist
Raya Jarawan
Imran Raza Zaidi
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: 202-305-4241
IT IS SO ORDERED.
/s/Richard R. Clifton
Richard R. Clifton, Circuit Judge