Gabriel Almanza-Arenas v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GABRIEL ALMANZA-ARENAS, No. 09-71415
Petitioner,
Agency No.
v. A078-755-092

LORETTA E. LYNCH, Attorney
General,
Respondent.

GABRIEL ALMANZA-ARENAS, No. 10-73715
Petitioner,
Agency No.
v. A078-755-092

LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted En Banc
September 10, 2015—San Francisco, California

Filed December 28, 2015
2 ALMANZA-ARENAS V. LYNCH

Before: Sidney R. Thomas, Chief Judge and Ronald M.
Gould, Richard C. Tallman, Johnnie B. Rawlinson, Jay S.
Bybee, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy
Smith, Jacqueline H. Nguyen, Paul J. Watford and John B.
Owens, Circuit Judges.

Opinion by Judge N.R. Smith;
Concurrence by Judge Owens;
Concurrence by Judge Watford

SUMMARY*

Immigration

The en banc court granted Gabriel Almanza-Arenas’s
petition for review of the Board of Immigration Appeals’
published precedential decision, Matter of Almanza-Arenas,
24 I. & N. Dec. 771 (BIA 2009), which held that a conviction
for vehicle theft under California Vehicle Code § 10851(a)
constitutes a crime involving moral turpitude.

Applying Descamps v. United States, 133 S. Ct. 2276
(2013), the en banc court first held that § 10851(a) is
overbroad and not a categorical match to the federal offense
because it punishes conduct that both is and is not a crime of
moral turpitude (CIMT). The en banc court next held that
§ 10851(a) is an indivisible statute because the intent element
requires intent to either permanently or temporarily deprive
an owner of their vehicle, thus criminalizing conduct that

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ALMANZA-ARENAS V. LYNCH 3

both would and would not constitute a CIMT. While
recognizing a circuit split as to whether, following Descamps,
courts may look to state law to determine a statute’s elements,
the en banc court found that § 10851(a) is indivisible because
under California law the two forms of intent are alternative
means of accomplishing the same crime rather than two
separate crimes.

Concurring, Judge Owens wrote that he joined the
majority opinion because it correctly followed this court’s
precedent, but that he would find that the precedent is
incorrect.

Concurring in the judgment, Judge Watford agreed that a
conviction under § 10851(a) is not a CIMT, but disagreed
with the majority’s conclusion that the statute is indivisible.
Judge Watford wrote that he would overrule Rendon v.
Holder, 764 F.3d 1077 (9th Cir. 2014), because its divisibility
analysis is inconsistent with Descamps’ approach.

COUNSEL

Mark C. Fleming (argued), Wilmer Cutler Pickering Hale and
Dorr LLP, Boston, Massachusetts; Daniel Winik, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington D.C.;
Michael J. Codner and Murray D. Hilts, Law Offices of
Murray D. Hilts, San Diego, California, for Petitioner.

Leon Fresco, Deputy Assistant Attorney General (argued);
Tony West, Assistant Attorney General; Leslie McKay,
Assistant Director; Carol Federighi, Senior Litigation
Counsel; Stefanie Notarino Hennes, Trial Attorney, United
4 ALMANZA-ARENAS V. LYNCH

States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent.

Jayashri Srikantiah, and Alison Kamhi, Immigrant’s Rights
Clinic, Mills Legal Clinic, Stanford Law School, Stanford,
California; Manuel Vargas and Isaac Wheeler, Immigrant
Defense Project, New York, New York, for Amicus Curiae
Immigrant Defense Project, National Immigration Project of
the National Lawyers Guild, Immigrant Legal Resource
Center, and Federal Defenders of San Diego.

Charles Roth, National Immigrant Justice Center, Chicago,
Illinois; Matt Adams, National Immigrant Rights Project,
Seattle, Washington; Benjamin R. Casper, University of
Minnesota Law School, Center for New Americans, Federal
Immigration Litigation Clinic, Minneapolis, Minnesota;
Northwest Immigrant Rights Project, Seattle, Washington, for
Amici Curiae the National Immigrant Justice Center and the
Northwest Immigrant Rights Project.

Vincent J. Brunkow, Reuben Camper Cahn, and Kara
Hartzler, Federal Defenders of San Diego, Inc., San Diego,
California, for Amici Curiae the Ninth Circuit Federal
Defenders and Community Defenders, the California Public
Defenders Association and individual California Public
Defender Offices, and National Association of Criminal
Defense Lawyers.

Devin T. Theriot-Orr and Ralph Hua, Gibbs Houston Pauw,
Seattle, Washington, for Amici Curiae American Immigration
 ALMANZA-ARENAS V. LYNCH 5

Lawyers Association, Immigrant Defense Project, Immigrant
Legal Resource Center, National Immigration Project of the
National Lawyers Guild, the University of California Davis
School of Law Immigration Law Clinic, Community Legal
Services in East Palo Alto, Detention Watch Network, the
Florence Immigrant and Refugee Rights Project, the National
Immigration Law Center, and Public Counsel.

OPINION

N.R. SMITH, Circuit Judge, joined by THOMAS, Chief
Judge, and GOULD, TALLMAN, RAWLINSON, BYBEE,
CALLAHAN, IKUTA, NGUYEN, and OWENS, Circuit
Judges:

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 petitions 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 2000.1 In

1
For purposes of cancellation of removal, Almanza alleges that he
arrived in the United States in 1989. Almanza had five voluntary returns
to Mexico in 1996 and one voluntary return in 2000. Although the taking
6 ALMANZA-ARENAS V. LYNCH

February 2005, the Department of Homeland Security
(“DHS”) issued a Notice to Appear, alleging that Almanza
was removable because he was not properly admitted or
paroled to the United States. On July 21, 2005, Almanza
admitted the truth of the factual allegations in the Notice to
Appear and conceded his removability. However, Almanza
orally requested 8 U.S.C. § 1229b cancellation of removal at
the hearing (and thereafter filed a written application in
January 2006) and alternatively requested voluntary
departure.2

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,
477 P.2d 409 (Cal. 1970)3) on September 12, 2000. The

of voluntary departure precludes Almanza’s eligibility for cancellation of
removal, neither the Board of Immigration Appeals (“BIA”) nor
immigration judge (“IJ”) found Almanza ineligible on this basis.
Therefore, we cannot affirm on that basis. Navas v. INS, 217 F.3d 646,
658 n.16 (9th Cir. 2000).
2
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).
Almanza 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,
590 F.3d 1034, 1039 (9th Cir. 2010).
3
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, 400 U.S. 25, 37–38 (1970), allows a defendant
to plead guilty in order to take advantage of a plea bargain while still
 ALMANZA-ARENAS V. LYNCH 7

parties agree that California Vehicle Code § 10851(a)
punishes both permanently depriving (which is a crime of
moral turpitude) and temporarily depriving (which is not a
crime of moral turpitude) an owner of his or her vehicle.
People v. Garza, 111 P.3d 310, 315 (Cal. 2005).

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);4 (2) a copy of
Almanza’s September 12, 2000 guilty plea (pursuant to
People v. West, 477 P.2d at 410) to a misdemeanor violation
of California Vehicle Code § 10851(a); and (3) a judgment
showing that Almanza received a sentence of twenty-four
days time served. Neither party placed the transcript of
Almanza’s plea colloquy for this conviction into evidence.5

asserting his or her innocence.” People v. Rauen, 133 Cal. Rptr. 3d 732,
734 (Cal. Ct. App. 2011) (internal quotation marks and footnote omitted).
4
The Complaint alleged in Count 1 that Almanza “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.
5
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
8 ALMANZA-ARENAS V. LYNCH

After the hearing, the IJ denied Almanza’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.6 Id. at
774–76.

argued that its admission was not necessary given his West plea (which is
made without any admission to the facts).
6
Because we conclude that section 10851(a) is indivisible, we do not
reach the issue of whether Almanza met his burden of proof.
 ALMANZA-ARENAS V. LYNCH 9

Petitioner timely petitioned for review.7 A three judge
panel granted the petition. Almanza-Arenas v. Holder,
771 F.3d 1184 (9th Cir. 2014). We then granted rehearing en
banc. Almanza-Arenas v. Lynch, 785 F.3d 366 (9th Cir.
2015).

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, 133 S. Ct. 2276 (2013):

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,”

7
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 denied
Almanza’s request for reconsideration, concluding that “[e]ven though the
conviction is not ‘described under’ section 212(a)(2) of the Act because
it falls under the petty offense exception, the respondent has been
convicted of an offense ‘described under’ section 237(a)(2) of the Act.”
Because we conclude that section 10851(a) is categorically not a crime
involving moral turpitude, we do not address whether the petty offense
exception is applicable in the context of cancellation of removal.
10 ALMANZA-ARENAS V. LYNCH

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, 798 F.3d 863, 867–68 (9th Cir.
2015) (internal citations omitted).

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, 704 F.3d 1205, 1208
(9th Cir. 2013). “The first step is to identify the elements of
the statute of conviction.” Id. We review this step de novo,
because “the BIA has no special expertise by virtue of its
statutory responsibilities in construing state or federal
criminal statutes.” Id. (alteration and citation omitted). “The
second step is to compare the elements of the statute of
conviction to the generic definition of a crime of moral
turpitude and decide whether the conviction meets that
definition.” Id. We review this step following the Chevron
 ALMANZA-ARENAS V. LYNCH 11

framework and defer to the BIA’s conclusion if warranted.
Id.; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984).

To identify the elements of California Vehicle Code
§ 10851(a), we apply California rules of statutory
construction. Lieberman v. Hawkins (In re Lieberman),
245 F.3d 1090, 1092 (9th Cir. 2001). “Under California law,
the cardinal rule of statutory construction is to determine the
intent of the legislature.” Id. We therefore determine intent
by first looking “to the language of the statute and giv[ing]
effect to its plain meaning.” Id. “If the intent of the
legislature is not clear from the language of the statute,
legislative history may be considered.” Id. California
Vehicle Code § 10851(a) (2000) provides:

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

8
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, 733 F.3d 812, 814 (9th Cir. 2013). However,
Almanza was not convicted of that portion of the statute.
12 ALMANZA-ARENAS V. LYNCH

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, 747 F.3d 773, 779 (9th Cir.
2014) (en banc) (quoting Latter-Singh v. Holder, 668 F.3d
1156, 1161 (9th Cir. 2012)). Although section 10851(a) is
generally considered to be a theft offense, see Duenas-
Alvarez, 733 F.3d at 814, not all “theft” offenses are crimes
involving moral turpitude. See Castillo-Cruz v. Holder,
581 F.3d 1154, 1159 (9th Cir. 2009). Instead, “[t]he BIA has
held in a number of cases that a theft offense is not
categorically a crime of moral turpitude if the statute of
conviction is broad enough to criminalize a taking with intent
to deprive the owner of his property only temporarily.” Id.;
see also Matter of M-, 2 I. & N. Dec. 686, 686 (B.I.A. 1946)
(holding joyriding is not a crime involving moral turpitude);
Matter of D-, 1 I. & N. Dec. 143, 143, 145 (B.I.A. 1941)
(holding that driving an automobile without the consent of the
owner is not a crime involving moral turpitude). As a result,
section 10851(a) punishes conduct that is categorically a
crime of moral turpitude (permanently depriving) and
conduct that is not categorically a crime of moral turpitude
(temporarily depriving). Because section 10851(a) is
“overbroad” and “criminalizes conduct that goes beyond the
elements of the federal offense,” it is not a categorical match.
 ALMANZA-ARENAS V. LYNCH 13

See Lopez-Valencia, 798 F.3d at 867–68. We must then turn
to step two.

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, 133 S. Ct. at 2285 (alteration
omitted) (quoting Nijhawan v. Holder, 557 U.S. 29, 41
(2009)). If it has alternative elements, it is divisible and we
continue to step three—the modified categorical approach.
Alternatively, if section 10851(a) has a “single, indivisible set
of elements” with different means of committing one crime,
then it is indivisible and we end our inquiry, concluding that
there is no categorical match to the generic federal offense.
Id. at 2286.9

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.

9
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. 30 (Watford, J.).
14 ALMANZA-ARENAS V. LYNCH

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.” Medina-Lara v. Holder,
771 F.3d 1106, 1117 (9th Cir. 2014); Ceron, 747 F.3d at 778
(noting that we review element identification de novo,
“[b]ecause the BIA lacks expertise in identifying the elements
of state statutes”). Therefore, we owe no deference to the
BIA’s conclusion (without analysis) that section 10851(a)
was divisible. See Matter of Almanza-Arenas, 24 I. & N.
Dec. at 774.

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 133 S. Ct. at 2285. In United States v. Cabrera-
Gutierrez, we determined that if the elements of the crime are
alternative to each other—not the mode or means of proving
an element of the crime—the statute is divisible. 756 F.3d
1125, 1135–37 & n.16 (9th Cir. 2013).

In Richardson v. United States, 526 U.S. 813 (1999)
(upon which Descamps relied), the Supreme Court made it
clear that elements are different than means. It held:

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
 ALMANZA-ARENAS V. LYNCH 15

separate element, then the jury must agree
unanimously about which three crimes the
defendant committed.

Id. at 818. Therefore, a single element must be part of a
charged offense with which a jury necessarily found the
defendant guilty. See Taylor v. United States, 495 U.S. 575,
602 (1990) (holding that when a statute includes entry of a
building or automobile, the modified approach can only be
used “if the indictment or information and jury instructions
show that the defendant was charged only with a burglary of
a building, and that the jury necessarily had to find an entry
of a building to convict”); see also Descamps, 133 S. Ct. at
2288 (“The Sixth Amendment contemplates that a jury—not
a sentencing court—will find such facts, unanimously and
beyond a reasonable doubt. And the only facts the court can
be sure the jury so found are those constituting elements of
the offense—as distinct from amplifying but legally
extraneous circumstances.”).

Richardson makes clear that the first step in determining
elements versus means (and thus divisibility) begins with the
text of the statute of conviction.10 526 U.S. at 818. The text
of section 10851(a), as noted above, presents three indivisible
elements. Although section 10851(a) uses disjunctive
phrasing in two of the three elements, the use of “or” does not

10
Judge Watford mistakenly suggests that the majority opinion is instead
“predicated on the same reasoning our court adopted in Rendon v. Holder,
764 F.3d 1077 (9th Cir. 2014).” See Concurring Op. 27 (Watford, J.). To
the contrary, our decision derives from Supreme Court precedent. To the
extent the Rendon decision agrees with our decision, it remains circuit
precedent.
16 ALMANZA-ARENAS V. LYNCH

create additional elements.11 Rather, the disjunctive phrasing
creates different means of committing the one offense. The
first element can be completed by either driving a vehicle or
taking a vehicle (which vehicle belongs to another person).
The second element can be completed by driving or taking
the vehicle without the consent of the owner. The third
element (the element at issue here) can be completed by
either permanently or temporarily depriving the owner of his
or her vehicle. The means or methods of committing the
element of the offense do not make the statute divisible,
because the trier of fact does not need to agree as to whether
the deprivation was temporary or permanent (the length of
time during which the deprivation occurred). Thus, section
10851(a) is an indivisible statute.

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.12 See Descamps, 133 S. Ct. at

11
The mere use of the disjunctive term “or” does not automatically make
a statute divisible. See Rendon, 764 F.3d at 1085–86 (concluding that
when a state statute “is written in the disjunctive . . . that fact alone cannot
end the divisibility inquiry”); see also United States v. Howard, 742 F.3d
1334, 1348 (11th Cir. 2014); United States v. Pate, 754 F.3d 550, 554–55
(8th Cir.), cert. denied, 135 S. Ct. 386 (2014); Omargharib v. Holder,
775 F.3d 192, 198 (4th Cir. 2014); United States v. Royal, 731 F.3d 333,
341–42 (4th Cir. 2013).
12
Prior to Descamps, Judge Watford may have been correct that we
should not look at Shepard documents prior to a determination of
divisibility. However, a crime is only divisible if it includes alternative
elements not alternative means. See Descamps, 133 S. Ct. at 2288. Thus,
after Descamps, the Supreme Court allows us to look at Shepard
documents to confirm the determination of the statute’s elements (and
thereby its divisibility). Descamps, 133 S. Ct. at 2285 n.2. Here, we look
 ALMANZA-ARENAS V. LYNCH 17

2285 n.2 (“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.”).
Here, an examination of the Shepard documents confirms our
conclusion that section 10851(a) is indivisible. The
indictment charges that Almanza violated section 10851(a) by
taking the car “with intent either permanently or temporarily
to deprive the owner” of the car. Prosecutors may not charge
a defendant in the disjunctive, as the indictment did here, if
they are charging two separate offenses.13 See The
Confiscation Cases, 87 U.S. (20 Wall.) 92, 104 (1874) (“[A]n
indictment or a criminal information which charges the
person accused, in the disjunctive, with being guilty of one or
of another of several offences, would be destitute of the
necessary certainty, and would be wholly insufficient.”). As
noted in Descamps, “[a] prosecutor charging a violation of a
divisible statute must generally select the relevant element
from its list of alternatives.” 133 S. Ct. at 2290. Thus, when
reviewing the Shepard documents, a court can discover what
the prosecutor included as elements of the crime and to what
elements the petitioner pleaded guilty. Therefore, because the
indictment charged Almanza with having intent either to
permanently deprive or temporarily deprive the owner, the

to Shepard documents merely “as a tool for implementing the categorical
approach.” Cf. id. at 2284.
13
We are mindful that prosecutors’ charging documents do not always
charge a defendant properly. In some instances, prosecutors may fail to
“select the relevant element[s] from its list of alternatives,” Descamps,
133 S. Ct. at 2290, or may include the specific means of committing the
offense out of convenience. We are also mindful that defendants may
plead to these imprecisely charged indictments or informations without
alteration. Therefore, the divisibility analysis may not end after looking
to Shepard documents.
18 ALMANZA-ARENAS V. LYNCH

indictment reveals that (under state law) the two forms of
intent are alternative means of accomplishing the same crime
instead of two separate crimes. Section 10851 is therefore an
indivisible statute.14

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 argued) 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.15 As the Supreme Court has counseled, if the state
courts have addressed the issue, “we simply are not at liberty
to ignore that determination and conclude that the alternatives

14
The Supreme Court has cautioned us not to engage in judicial
factfinding. See James v. United States, 550 U.S. 192, 214 (2007),
overruled on separate grounds by Johnson, 559 U.S. 133. “[B]y applying
Taylor’s categorical approach, we [have avoided] any inquiry into the
underlying facts of [Almanza’s] particular offense, and have looked solely
to the elements of [section 10851(a)] as defined by [California] law.” Id.
Under Judge Watford’s approach, it seems anything written in the
disjunctive (whether elements or means) is divisible regardless of whether
a jury necessarily had to find a defendant committed the element of the
offense beyond a reasonable doubt. Rather than treating everyone (who
has committed an offense under § 10851(a)) equally, he mistakenly would
look to the facts of each case to see if he can discover the means of how
the person committed the offense. See Concurring Op. 35 (Watford, J.).
15
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, 133 S. Ct. at 2285 n.2.
 ALMANZA-ARENAS V. LYNCH 19

are, in fact, independent elements under state law.”16 Schad
v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion); see
also Albertson v. Millard, 345 U.S. 242, 244 (1953) (per
curiam) (“The construction given to a state statute by the state
courts is binding upon federal courts.”). We look to a state’s
laws to determine whether that state’s courts “have
determined that certain statutory alternatives are mere means
of committing a single offense, rather than independent
elements of the crime.” Schad, 501 U.S. at 636. Therefore,
we must verify that our interpretation of elements versus
means is consistent with how California would instruct a jury
as to this offense.

2. Application of State Law

Looking to state law to determine a state’s interpretation
of its own statutes is nothing new. In Descamps, the Supreme
Court looked to state law to confirm the statute’s plain text
that California did not require a “breaking and entering.”
Descamps, 133 S. Ct. at 2282 (citing People v. Barry, 29 P.
1026, 1026–27 (Cal. 1892)). The Supreme Court also applied
this framework in Johnson v. United States, 559 U.S. 133
(2010). In that case, the defendant had a previous conviction
of simple battery under Florida law, Fla. Stat. § 784.03(1)(a).
559 U.S. at 136. Johnson objected to the conviction being

16
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 jury 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, 133 S. Ct. at 2287. The Supreme Court made it
clear, we are not “to explore whether a person convicted of one crime
could also have been convicted of another, more serious offense.” Id. at
2292. “[T]hat circumstance-specific review is just what the categorical
approach precludes.” Id.
20 ALMANZA-ARENAS V. LYNCH

classified as a violent felony. Id. In determining the
elements of the crime, the Supreme Court concluded that
there were three ways the prosecution could prove a battery,
citing to state law. Id. (“Because the elements of the offense
are disjunctive, the prosecution can prove a battery in one of
three ways.” (citing State v. Hearns, 961 So. 2d 211, 218
(Fla. 2007))).

We similarly looked to the state interpretation of its own
statute in two of our recent cases, Rendon v. Holder, 764 F.3d
1077, and Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir.
2015). In Rendon, after concluding that the statute was not a
categorical match, we turned to the second step to determine
divisibility. 764 F.3d at 1084. The statute’s text did not
provide a clear answer to which parts of the statute were
means versus elements; therefore, we looked to state law to
determine whether the statute contained alternative elements
rather than alternative means. Id. at 1088–89. In Chavez-
Solis, we interpreted a disjunctively worded statute. 803 F.3d
at 1013. We looked to the pattern jury instructions/state law
to assess the divisibility of the statute (i.e., what elements a
jury must unanimously agree on). Id. After review of the
state law, we concluded that California’s statute was
indivisible because “California juries are not required to
unanimously agree on what sexual conduct appears in a
particular image in order to convict a defendant of possession
of child pornography.” Id.

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
 ALMANZA-ARENAS V. LYNCH 21

intent to attempt to elude a peace officer” was indivisible,
despite its disjunctive text. 754 F.3d at 554–55. Relying on
Minnesota state law and practice jury instruction guides, the
Eight Circuit concluded that “the statute does not require the
factfinder (whether jury or judge) to determine how the
defendant fled (i.e., the means of flight) because the method
used to flee the peace officers is not an element of the crime.”
Id. at 554 (internal quotation marks and citations omitted).
The Fourth Circuit similarly concluded that it must look to
how courts “generally instruct juries” with respect to the
statute at issue. See Omargharib, 775 F.3d at 199.

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,
767 F.3d 1046, 1061 (10th Cir. 2014), cert. denied, 135 S. Ct.
1447 (2015); Franco-Casasola v. Holder, 773 F.3d 33, 37–38
(5th Cir. 2014) (“[A] divisible statute is one defined
‘alternatively, with one statutory phrase corresponding to the
generic crime and another not.’” (quoting Descamps, 133 S.
Ct. at 2286)).17 In Trent, the Tenth Circuit questioned
whether the Supreme Court meant to use the term “elements”
in the “traditional sense.” 767 F.3d at 1061. The Trent court
effectively suggested that the difference between elements
and means under Descamps is a distinction without a
difference, because the Supreme Court limited a court’s
ability to determine whether a statute is divisible by solely
looking at the Taylor and Shepard documents (indictment,
jury instructions, plea colloquy, and plea agreement). Id.

17
The Fifth Circuit has not addressed the elements versus means
distinction, but rather seems to apply the modified approach to all
disjunctive subsections.
22 ALMANZA-ARENAS V. LYNCH

(citing Descamps, 133 S. Ct. at 2285 n.2).18 The Trent court
recognized that its analysis could be flawed and continued its
analysis using the traditional elements and means definitions
supplied by Richardson and Schad. See id.

This circuit split arises from a disagreement regarding the
meaning of footnote 2 in Descamps. See Descamps, 133 S.
Ct. at 2285 n.2. In responding to Justice Alito’s dissent,
criticizing the majority’s nuances concerning elements versus
means, the Descamps majority provided:

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.

18
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, 133 S. Ct. at 2283–84. Instead, it sets our
analysis back to almost where we were pre-Descamps, inventing ways to
make a statute divisible.
 ALMANZA-ARENAS V. LYNCH 23

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.19 The
Supreme Court is clear: “Whatever a statute lists (whether
elements or means), the documents we approved in Taylor
and Shepard . . . would reflect the crime’s elements. . . .
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.
(emphasis added). This statement is consistent with the
Supreme Court’s instruction that the modified approach “acts
not as an exception, but instead as a tool. It retains the
categorical approach’s central feature: a focus on the
elements, rather than the facts, of a crime.” Id. at 2285. This
explanation cannot be read to suggest that elements and
means are one and the same. If the Supreme Court wanted to
say that there was no material difference between the two

19
Although we are mindful of the Supreme Court’s warning that “a
court need not parse state law” to determine elements versus means,
Descamps, 133 S. Ct. at 2285 n.2, we do not interpret Descamps to
suggest that we can never look to state law. In Descamps, the Supreme
Court rejected the government’s argument that the element of “enters,”
Cal. Penal Code § 459, was divisible by finding contradictory case law.
Id. at 2291. The Supreme Court reserved the question of whether a “court
should take account not only of the relevant statute’s text, but of judicial
rulings interpreting it.” Id. In this context, however, the reservation
seems limited to unmentioned elements. See id. at 2296–97 (Alito, J.,
dissenting) (noting that “courts sometimes find that unmentioned elements
are implicit”). The Descamps decision (which was not based on a
disjunctively worded statute) does not purport to overrule prior precedent
that allows a court to look to state law to determine whether the statute of
conviction contains elements or means when it is phrased in the
disjunctive. Rather, it only precludes courts from “parsing state law” in
order to reach a desired result. See id. at 2285 n.2.
24 ALMANZA-ARENAS V. LYNCH

terms, it knew how to do so. Thus, means or methods of
committing an offense, in this context, is nothing more than
focusing on the facts, which we are forbidden to do in a
categorical analysis.

Determining the elements of section 10851(a), as defined
by California law, we need not go beyond California’s pattern
criminal jury instructions20 (“CALJIC”) (in effect at the time
Almanza pleaded guilty).21 CALJIC 14.36 provides the
appropriate instruction for persons who are charged with
violating California Vehicle Code § 10851(a). It provides
that a jury must find the following elements of the crime:

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 deprive

20
Jury instructions are Shepard “approved” documents only when they
are submitted in the underlying action as part of the record. Shepard v.
United States, 544 U.S. 13, 20–21 (2005). Jury instructions do not exist
in this case where Almanza pleaded guilty.
21
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,
926 P.2d 1013, 1021 (Cal. 1996). “[T]he Judicial Council has
recommended their use, when applicable, ‘unless the trial judge finds that
a different instruction would more adequately, accurately or clearly state
the law.’” Mitchell v. Gonzales, 819 P.2d 872, 884 n.2 (Cal. 1991)
(Kennard, J., dissenting) (alteration omitted) (citing Cal. Standards Jud.
Admin., § 5)).
 ALMANZA-ARENAS V. LYNCH 25

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, 133 S. Ct. 1678, 1684 (2013) (internal quotation
marks and alterations omitted) (emphasis added). Because
the least of the acts criminalized under section 10851(a) is a
temporary taking, the statute is not categorically a crime
involving moral turpitude.

The petitions for review are GRANTED, and the matter
is REMANDED to the BIA for further proceedings.
26 ALMANZA-ARENAS V. LYNCH

OWENS, Circuit Judge, joined by TALLMAN, BYBEE, and
CALLAHAN, Circuit Judges, concurring:

We should no longer tinker with the machinery of
Descamps.

While I join the majority opinion because it correctly
applies our precedent, I do not agree that our precedent is
correct. Under the current framework, hardened criminals
avoid removal due to the vagaries of one state’s law, while
much softer individuals get shipped overseas because of the
indictment template used in a different office. The only
consistency in these cases is their arbitrariness. The
bedeviling “modified categorical approach” will continue to
spit out intra- and inter-circuit splits and confusion, which are
inevitable when we have hundreds of federal judges
reviewing thousands of criminal state laws and certain
documents to determine if an offense is “categorically a crime
involving moral turpitude.” Almost every Term, the Supreme
Court issues a “new” decision with slightly different language
that forces federal judges, litigants, lawyers and probation
officers to hit the reset button once again.

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, 135 S. Ct. 2551, 2560 (2015)
 ALMANZA-ARENAS V. LYNCH 27

(“Nine years’ experience trying to derive meaning from the
residual clause [of the Armed Career Criminal Act] convinces
us that we have embarked upon a failed enterprise.”).1

We are way past that here.

WATFORD, Circuit Judge, 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, 764 F.3d 1077 (9th Cir.
2014), that § 10851(a) is an “indivisible” statute. I would
overrule Rendon, as I think its approach to divisibility
analysis is inconsistent with the approach required by
Descamps v. United States, 133 S. Ct. 2276 (2013). I will be
the first to admit, though, that the correct reading of
Descamps (and in particular its footnote 2) is open to debate,
as reflected by the clash between the panel’s opinion in
Rendon and the opinions dissenting from our refusal to rehear

1
See also Descamps v. United States, 133 S. Ct. 2276, 2294 (2013)
(Kennedy, J., concurring) (“If Congress wishes to pursue its policy in a
proper and efficient way without mandating uniformity among the States
with respect to their criminal statutes for scores of serious offenses, and
without requiring the amendment of any number of federal criminal
statutes as well, Congress should act at once.”); United States v. Fish,
758 F.3d 1, 18 (1st Cir. 2014) (noting that “the great variation between the
different states’ criminal statutes has flummoxed the federal courts” and
that the duty to determine whether a prior conviction qualifies as a
predicate offense “seems a better fit for Congress or an administrative
agency” than a court).
28 ALMANZA-ARENAS V. LYNCH

that case en banc.1 Given how frequently questions of
divisibility arise, in both the criminal and immigration
contexts, we need a clear and easy-to-apply rule for
distinguishing between statutes that are divisible and those
that are not. If not in this case then hopefully in another case
soon, the Supreme Court will step in to provide further
guidance.

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, 133 S. Ct. at 2281. The first step is to identify the
elements of the statute of conviction, and in our case that’s
easy to do. California Vehicle Code § 10851(a), as relevant
here, provides as follows: “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 . . . is guilty of a public offense . . . .” For our
purposes, the statute has three elements: (1) the actus reus,

1
See Rendon v. Holder, 782 F.3d 466, 467–73 (9th Cir. 2015) (Graber,
J., dissenting from denial of rehearing en banc); id. at 473–74 (Kozinski,
J., dissenting from denial of rehearing en banc); see also United States v.
Mathis, 786 F.3d 1068, 1074–75 & n.6 (8th Cir. 2015); Omargharib v.
Holder, 775 F.3d 192, 198–200 (4th Cir. 2014); id. at 200–02 (Niemeyer,
J., concurring); United States v. Trent, 767 F.3d 1046, 1058–63 (10th Cir.
2014); United States v. Howard, 742 F.3d 1334, 1343–49 (11th Cir. 2014).
 ALMANZA-ARENAS V. LYNCH 29

which can be satisfied by either driving or taking a vehicle
belonging to someone else; (2) the attendant circumstance
that the taking or driving be without the owner’s consent; and
(3) the mens rea, which can be satisfied by intending either to
permanently or temporarily deprive the owner of the vehicle.

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, 581 F.3d
1154, 1159–60 (9th Cir. 2009).

Comparing the elements of § 10851(a) to 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, 133 S. Ct. at
2281, by sweeping in car thieves who intended only a
temporary deprivation as well as those who intended a
permanent deprivation.

That conclusion, however, does end not 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,
30 ALMANZA-ARENAS V. LYNCH

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 a particular element can be
satisfied. Take the two hypothetical divisible statutes the
Court mentioned in Descamps: a burglary statute prohibiting
unlawful entry into either a building or an automobile; and an
assault statute requiring use of a gun, axe, sword, baton,
slingshot, knife, machete, or bat. Id. at 2281, 2289–90.
Those statutes are divisible because they specify the
alternative ways one element of the offense can be satisfied.
The statutes would therefore allow a prosecutor to narrow the
offense by selecting one of the specified alternatives as the
basis for the charge. For example, if a prosecutor charged the
defendant under the first statute with entering a building, and
the jury was accordingly instructed that it had to find that the
defendant entered a building in order to convict, we would
know the defendant was convicted of the entry-into-a-
building version of the offense rather than the entry-into-an-
automobile version.

We have real-world examples of divisible statutes, too.
In Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Court
treated as divisible “a Georgia statute that makes it a crime to
‘possess, have under [one’s] control, manufacture, deliver,
distribute, dispense, administer, purchase, sell, or possess
with intent to distribute marijuana.’” Id. at 1685 (quoting Ga.
Code Ann. § 16-13-30(j)(1)). Each of those disjunctively
 ALMANZA-ARENAS V. LYNCH 31

listed phrases was deemed to describe an alternative version
of the offense, and by consulting the petitioner’s plea
agreement the Court determined that he had been convicted
of the possession-with-intent-to-distribute version. Id. The
Court then analyzed whether that version of the offense was
a categorical match for the relevant generic offense.

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, 133 S. Ct. at 2282.
(The Court noted, for example, that the statute covers “a
shoplifter who enters a store, like any customer, during
normal business hours.” Id.) The Court held that the “entry”
element of § 459 is indivisible because it does not contain
alternative statutory phrases, “with one statutory phrase
corresponding to the generic crime and another not.” Id. at
2286. Instead, the statute contains just a single
term—“enters”—which is itself overbroad. Thus, a
prosecutor could not narrow the offense by selecting from a
32 ALMANZA-ARENAS V. LYNCH

list of statutorily specified alternatives describing the
different ways the entry element could be satisfied.

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 textual
feature. They contain a single statutory phrase that is not
broken down into statutorily specified alternatives, each of
which would be sufficient to satisfy the element. Under the
approach to divisibility that Descamps seems to require, we
don’t need to look beyond the text of the statute to decide
whether it’s divisible: If the statute is “drafted in the
alternative,” id. at 2285 n.2—meaning it contains alternative
statutory phrases describing the different ways a particular
element can be met—the statute is divisible with respect to
that element. If not, the statute is indivisible.2

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

2
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 18 n.14. It
just requires looking at the text of the statute.
 ALMANZA-ARENAS V. LYNCH 33

alternative versions of the crime, which would allow a
prosecutor to narrow the offense 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 means. 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 15–25.

This focus on distinguishing between “elements” and
“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
34 ALMANZA-ARENAS V. LYNCH

controls. See Descamps, 133 S. Ct. at 2282 (citing People v.
Barry, 29 P. 1026 (Cal. 1892)); id. at 2291–92 n.5.

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 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. at 2285 n.2.

Lower courts have offered conflicting readings of this
passage. (See, for example, the cases cited in note 1, supra.)
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 based 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, 544 U.S. 13 (2005),
and Taylor v. United States, 495 U.S. 575 (1990)—which I
will refer to in short as the Shepard documents—will tell us
if that is true.
 ALMANZA-ARENAS V. LYNCH 35

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 the 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, 133 S. Ct. at 2285. That, it seems to me, is what
the Court meant when it said that, regardless of whether
alternative statutory phrases are called elements or means as
a general matter, the Shepard documents will tell us what the
elements of the offense of conviction were in the specific case
at hand. The approach to divisibility my colleagues have
adopted here cannot be squared with this reading of
Descamps.3

3
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 16–17. 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.
36 ALMANZA-ARENAS V. LYNCH

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 documents
include the indictment or information and, in cases resolved
by guilty plea, the plea agreement and plea colloquy.
Descamps, 133 S. Ct. at 2284. If Almanza-Arenas was in fact
convicted of a narrower version of the offense, we would then
compare the elements of that version of the offense to the
elements of the generic offense to see if they categorically
match, just as we would under the regular, unmodified
categorical approach. See id. at 2285.

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, 477 P.2d 409
(Cal. 1970), which means he entered the plea without
admitting a factual basis for it. Because the complaint
charged that Almanza-Arenas acted with the intent to
permanently or temporarily deprive the owner of the vehicle,
the prosecutor did not narrow the offense by selecting one of
the alternative statutory phrases. Nor was the offense
narrowed when Almanza-Arenas pleaded guilty. Neither in
his plea agreement nor, we can safely assume, during the plea
colloquy did Almanza-Arenas select one of the alternative
 ALMANZA-ARENAS V. LYNCH 37

statutory phrases and admit to a factual basis satisfying that
statutory phrase alone. Almanza-Arenas entered a West plea,
so he did not admit to a factual basis for anything. He simply
pleaded guilty to the offense as described in Count 1.

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, 135 S.
Ct. 1980, 1986 (2015). Thus, under the modified categorical
approach, Almanza-Arenas’ conviction necessarily
establishes only that he took the victim’s vehicle with the
intent to temporarily deprive her of possession. That version
of the offense, as noted earlier, is not a categorical match for
the generic theft offense that counts as a crime involving
moral turpitude.

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
38 ALMANZA-ARENAS V. LYNCH

possible that he committed the version that is a categorical
match. Relying on our decision in Young v. Holder, 697 F.3d
976, 988–90 (9th Cir. 2012) (en banc), the government argues
that because the petitioner in these circumstances can’t rule
out the possibility that he committed a crime involving moral
turpitude, he has not carried his burden of proving eligibility
for relief.4

Both the government’s argument and our decision in
Young are fundamentally incompatible with the categorical
approach, especially after Descamps and Moncrieffe clarified
the elements-focused nature of the inquiry. Under the
categorical approach, a court must determine “what facts are
necessarily established by a conviction for the state offense.”
Moncrieffe, 133 S. Ct. at 1693 n.11. What the defendant
actually did to commit the crime is entirely irrelevant.
Descamps, 133 S. Ct. at 2287–89.

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 Almanza-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, 135 S. Ct. at

4
Several other circuits have adopted the rule in Young. See Peralta
Sauceda v. Lynch, 804 F.3d 101, 103 (1st Cir. 2015) (collecting cases).
The Second Circuit has rejected the rule. Martinez v. Mukasey, 551 F.3d
113, 121–22 (2d Cir. 2008).
 ALMANZA-ARENAS V. LYNCH 39

1986–87, and here the answer is no: Almanza-Arenas’
conviction necessarily established only that he acted with the
intent to temporarily deprive the owner of her vehicle. The
record is not inconclusive in that regard, and because this
issue involves a purely legal determination (rather than a
factual determination, as Young wrongly held), its resolution
is unaffected by which party bears the burden of proof. As a
legal matter, Almanza-Arenas’ § 10851(a) conviction does
not qualify as a conviction for a crime involving moral
turpitude.

III

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 Almanza-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
40 ALMANZA-ARENAS V. LYNCH

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, 133 Cal. Rptr. 3d 732, 734 (Ct. App. 2011).
Production of the plea colloquy would therefore have had no
bearing on the analysis required under the modified
categorical approach. The BIA erred by declaring Almanza-
Arenas ineligible for cancellation of removal solely because
he failed to produce an irrelevant document.