Leonel SANDOVAL, AKA Lione Sandoval, Petitioner, v. Sally Q. YATES, Acting Attorney General, Respondent.
No. 13-71784
United States Court of Appeals, Ninth Circuit
January 27, 2017
Argued and Submitted November 8, 2016, Portland, Oregon
According to Roseburg, it fired Reynaga on January 18, 2010 because Reynaga walked off the job on January 9 and refused to work his scheduled shift on January 13. It is undisputed that Reynaga walked off the job on January 9 and refused to work the January 13 shift. These are legitimate, non-discriminatory reasons to terminate Reynaga. The panel majority asserts that Roseburg requiring Reynaga to work on January 13 at the same time as Branaugh and Roseburg‘s decision not to discipline Branaugh immediately offered potential evidence of disparate treatment. However, as mentioned above, Reynaga did not have a right to insist that Roseburg fire Branaugh or never schedule Branaugh at the same time that Reynaga was working. Branaugh‘s hostile, racist statements ceased after Vigilant began investigating Branaugh in December 2009. That Roseburg did not discipline Branaugh before Vigilant completed its investigation and Reynaga walked off the job similarly cannot be construed as evidence of disparate treatment. For these reasons, Reynaga did not provide direct or circumstantial evidence to suggest a discriminatory motivation for termination. He also failed to offer evidence that other workers had not been terminated when they walked off the job so as to satisfy the burden shifting framework. Accordingly, no reasonable jury could find that Roseburg subjected Reynaga to racially disparate treatment when it fired him for refusing to work on January 13. The district court should thus be affirmed on this point.2
I respectfully dissent.
Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.
Song E. Park (argued), Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Before: M. MARGARET McKEOWN, WILLIAM A. FLETCHER and RAYMOND C. FISHER, Circuit Judges.
OPINION
FISHER, Circuit Judge:
Sandoval was convicted of delivery of a controlled substance under
Sally Q. Yates is substituted for her predecessor, Loretta E. Lynch, as Acting Attorney General of the United States, pursuant to
Leonel Sandoval moved to the United States from Mexico when he was nine years old. He adjusted to lawful permanent resident status in 1990. His wife of over 26 years and two children are United States citizens.
In 1998, Sandoval was convicted of delivery of a controlled substance under Oregon law. The indictment identified the controlled substance as heroin. He performed community service at a forest project and was placed on probation for two years. Since then, he has not been convicted of any other criminal activity. Twelve years later, the government instituted removal proceedings against him. It alleged two grounds for removal based on Sandoval‘s 1998 conviction: (1) that the conviction was an aggravated felony and (2) that the conviction was related to a controlled substance. See
Sandoval timely petitioned for review. We have jurisdiction and review Sandoval‘s petition de novo. See
II
To determine whether a state criminal conviction is an aggravated felony, we must follow the “categorical approach.” See Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under this approach, we “compare the elements of the statute forming the basis of the [petitioner‘s] conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Id. Only if the elements in the petitioner‘s statute of conviction “are the same as, or narrower than, those of the generic offense” is the petitioner‘s conviction a categorical match. Id.
Under the categorical approach, we first determine the definition of the generic offense—here, an aggravated felony. This requires us to navigate a “maze of statutory cross-references.” Carachuri-Rosendo v. Holder, 560 U.S. 563, 567, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). We start with the definition of “aggravated felony” as used in
The term “aggravated felony” includes two federal controlled substance offenses relevant to this appeal: (1) “illicit trafficking in a controlled substance,” which includes (2) any “drug trafficking crime.”
The elements of an “illicit trafficking” offense are not statutorily defined. See
The elements of a “drug trafficking crime” are more readily determined. Drug trafficking crimes include felonies punishable under the Controlled Substances Act. See
The term “distribute” means “deliver.” See
Because Sandoval argues the Oregon statute under which he was convicted criminalizes solicitation, we must next determine whether generic attempted delivery also includes solicitation. The Controlled Substances Act does not define the term “attempt.” See
Sandoval was convicted of delivering a controlled substance. His indictment identifies the controlled substance as heroin and cites Oregon Revised Statutes
[I]t is unlawful for any person to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to: (a) A controlled substance in Schedule I, is guilty of a felony.
Under Oregon law, solicitation—even without possession—is a “substantial step toward committing the crime of attempted delivery under
Sargent relied on State v. Self, 75 Or. App. 230, 706 P.2d 975 (1985), in concluding that mere solicitation supported a conviction for delivery of controlled substances under
At the time of the commission of the instant offense, defendant was serving a sentence in the Lane County Jail. While at that facility, he telephoned one Webb, whose foster daughter he knew, in an attempt to obtain Webb‘s help in securing $2000 for the release from jail of a third party, Brown. Defendant made about six phone calls, the first two to the foster daughter. During the fourth call, when asked by Webb about collateral, defendant for the first time said that, after his release, Brown would go to two places in Eugene and get the money to repay Webb. Then, as a further reward, Webb and Brown would go to San Francisco, where Brown would obtain and give Webb five kilos of cocaine.
Id.: The defendant was convicted of “solicitation of attempted delivery of an illegal substance.” Id. The appellate court affirmed, “holding that the facts were sufficient to support his conviction.” Sargent, 822 P.2d at 728.
That the appellate court in Sargent concluded the facts of Self were “illustrative” is telling. See id. The defendant in Self did not possess or even offer to deliver the cocaine. See Self, 706 P.2d at 977, Instead, he tried to arrange the release of a third party, promising that same third party would obtain cocaine in exchange for assis-
For example, in State v. Pollock, 189 Or.App. 38, 73 P.3d 297 (2003), the court reversed a pretrial order suppressing evidence against a defendant charged under
We conclude that offering to sell a controlled substance constitutes a substantial step toward a completed transfer of that substance. As the court explained in State v. Walters, 311 Or. 80, 85, 804 P.2d 1164, cert. den., 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991), “‘to be a substantial step the act must be “strongly corroborative of the actor‘s criminal purpose,“’ ... i.e., [the] defendant‘s conduct must (1) advance the criminal purpose charged and (2) provide some verification of the existence of that purpose.” (Citations omitted.) An offer to sell a controlled substance meets the two-part test the court identified in Walters. It “substantially advances” the goal of completing the transaction. See id. An offer to sell goes beyond mere preparation and shows a commitment to completing the transfer if the offer is accepted. Additionally, the offer “provide[s] some verification of the existence of [defendant‘s criminal] purpose.” See id. Taking defendant at his word, he would have immediately transferred the ecstasy to Andersen and Carver if they had accepted his offer. At a minimum, the officer reasonably could conclude from defendant‘s offer to sell a controlled substance that it was more likely than not that he had intentionally taken a substantial step toward the completed transfer of that substance.
Id. at 300 (alterations in original) (emphases added). Thus, under Oregon law, the offer to sell a controlled substance is enough to complete a substantial step toward an intended transfer, i.e., offering to sell a controlled substance is an attempt under Oregon law. See id. The same is not true under federal law. See Rivera-Sanchez, 247 F.3d at 908–09. Accordingly, a statute that punishes the mere offer of a controlled substance is not an aggravated felony under the categorical approach. See id. at 909.
The government concedes that simply offering to deliver a controlled substance is not an aggravated felony. Nevertheless, it contends
In Johnson, the defendant was convicted of both attempted murder and solicitation to commit murder. See id. at 306. During phone conversations and in online chats, the defendant asked a friend to kill both his wife and daughter, suggesting methods for the murders and offering to make sure the friend would “never want for anything” if she did as asked. See id. Because the state had no evidence of a “concrete” plan outlined for the murder of his wife and
First, Johnson did not involve a controlled substance offense under Oregon law. See id. at 305. Instead, it dealt with attempted murder and solicitation to commit murder. See id. at 306.3 Thus, it is not clear whether Johnson is applicable here.
Second, even if Johnson is applicable, the standards the court outlined match those in Sargent:
In State v. Sargent ..., we held that, “if a person solicits another to engage in conduct constituting an element of the crime of delivery, e.g., to provide to the person a controlled substance for the purpose of distribution to third parties, the person has attempted delivery....” We see no reason to depart from that reasoning here, and we decline to hold that solicitation of a knowing agent is categorically disqualified as a “substantial step” under
ORS 161.405 . Rather, as the statute plainly states, solicitation requires a “substantial step.” Solicitation of a guilty person qualifies as a “substantial step” if, under the facts, the defendant‘s actions exceed mere preparation, advance the criminal purpose charged, and provide some verification of the existence of that purpose.
Id. at 309–10 (footnotes omitted). The appellate court‘s reasoning in Johnson was that solicitation is both strong evidence of criminal purpose and a substantial step toward accomplishing that purpose under Sargent. See id. Nothing in Johnson requires a defendant to take some affirmative act to further the goal of the requested criminal behavior or specify how the crime would take place. See id. at 308 (“[The] details of how the crime is to be committed need not be specified.“).4 Johnson does not limit Sargent in any way.
In sum, the government‘s argument fails to acknowledge Sargent‘s and Pollock‘s explicit statements that a conviction under
Because Oregon‘s definition of “delivery” includes solicitation,
III
Our inquiry does not end here, however. We must next address whether the modified categorical approach may be used to determine whether Sandoval‘s conviction qualifies as an aggravated felony.
Only divisible statutes are subject to the modified categorical approach. See Lopez-Valencia v. Lynch, 798 F.3d 863, 867-69 (9th Cir. 2015) (holding Descamps divisibility analysis is applicable in the immigration context). “[D]ivisibility hinges on whether the jury must unanimously agree on the fact critical to the federal statute.” Id. at 868-69. Such critical facts are “elements,” which are the “things the ‘prosecution must prove to sustain a conviction.‘” Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (quoting Black‘s Law Dictionary 634 (10th ed. 2014)).
To resolve the question of whether statutory alternatives are either elements or means, a court looks first to the statute itself and then to the case law interpreting it. See id. at 2256–57; see also Almanza-Arenas v. Lynch, 815 F.3d 469, 479–82 (9th Cir. 2016) (en banc). If state law fails to answer the question, a court may look to Shepard documents, which may be helpful in determining divisibility. See Mathis, 136 S.Ct. at 2256–57; see also Descamps, 133 S.Ct. at 2284 (citing Shepard v. United States, 544 U.S. 13, 25-26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). But if the statute, case law and Shepard documents fail to speak plainly as to whether statutory alternatives are elements instead of means, the statute is indivisible and the modified categorical approach has no application. See Mathis, 136 S.Ct. at 2257; see also In re Chairez-Castrejon, 26 I. & N. Dec. 819, 819-20 (BIA 2016) (holding Descamps and Mathis divisibility analysis “applies in immigration proceedings nationwide to the same extent that it applies in criminal sentencing proceedings“).
The government does not argue
Section
The government argues we have previously held
To summarize,
GRANTED AND REMANDED.
Charles MANLEY, Plaintiff-Appellant v. Michael ROWLEY, Officer; Alan Zimmer; Glenn Hammock; Scott Manning; State of Nevada, Nevada Department of Corrections; E.K. McDaniel; Renee Baker, Warden, Defendants-Appellees.
No. 15-15320
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 14, 2016, San Francisco, California
Filed January 30, 2017