United States v. Guillermo Arriaga-Pinon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50188
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-00219-DMS-1

GUILLERMO ARRIAGA-PINON,
AKA Guillermo Pinon- OPINION
Ariaga,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding

Argued and Submitted February 8, 2017
Pasadena, California

Filed April 7, 2017

Before: Sidney R. Thomas, Chief Judge, and Andrew J.
Kleinfeld and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Chief Judge Thomas;
Concurrence by Chief Judge Thomas
2 UNITED STATES V. ARRIAGA-PINON

SUMMARY*

Criminal Law

The panel vacated a sentence and remanded for
resentencing in a case in which the defendant challenged the
district court’s determination that his prior conviction under
California Vehicle Code section 10851(a) constituted an
aggravated felony.

The defendant contended that Duenas-Alvarez v. Holder,
733 F.3d 812 (9th Cir. 2013), which held that section
10851(a) is a divisible statute such that the modified
categorical approach applies, must be overruled because
United States v. Mathis, 136 S. Ct. 2243 (2016), compels the
conclusion that the statute is indivisible. The panel wrote that
it did not need to reach that question because even assuming
Duenas-Alvarez remains good law, the conviction fails to
satisfy the modified categorical test and therefore is not a
qualifying predicate offense. The panel explained that United
States v. Vidal, 504 F.3d 1072 (1997) (en banc), compels the
conclusion that the judicially noticeable documents in this
case are not sufficient to establish whether the defendant –
who, in the plea colloquy, pled no contest to what the court
described as “unlawful driving or taking of a vehicle in
violation of Vehicle Code Section 10851(a)” – was convicted
as a principal or as an accessory after the fact.

Concurring, Chief Judge Thomas wrote that although
there was no need in this case to reach the issue whether

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. ARRIAGA-PINON 3

Duenas-Alvarez remained good law, Mathis has altered the
legal landscape and requires this court, at the appropriate
time, to re-examine its jurisprudence as to the divisibility of
section 10851(a).

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal Division;
Laura E. Duffy, United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.

OPINION

THOMAS, Chief Judge:

Guillermo Arriaga-Pinon (“Arriaga”) appeals an eighteen-
month sentence imposed after he pleaded no contest to
unlawful reentry following removal in violation of 8 U.S.C.
§§ 1326(a) and (b). Arriaga contends that, in light of the
United States Supreme Court’s decision in Mathis v. United
States, 136 S. Ct. 2243 (2016), the district court erred when
it applied the modified categorical approach to determine that
his 2014 conviction under California Vehicle Code
section 10851(a) constituted an aggravated felony. In the
alternative, Arriaga argues that even if section 10851(a) is
divisible, and the modified categorical approach applied, the
record of conviction does not demonstrate that he was
4 UNITED STATES V. ARRIAGA-PINON

convicted of an aggravated felony theft offense. We agree
with Arriaga’s alternative argument. We therefore vacate
Arriaga’s sentence and remand for resentencing.

I

After waiving indictment, Arriaga was charged with
unlawful reentry into the United States in violation of
8 U.S.C. §§ 1326(a)1 and (b).2 According to the information,
he was found in California in January 2016 despite having
been “excluded, deported and removed from the United
States to Mexico” in December 2015. Arriaga pleaded guilty
and was sentenced to eighteen months in prison and two years
of supervised release.

Arriaga had previously been convicted of violating
California Vehicle Code section 10851(a) in January 2014.
Count One of the relevant complaint alleged:

On or about January 17, 2014, [Arriaga] . . .
did unlawfully drive and take a certain
vehicle, to wit, 1985 Nissan . . . then and there

1
8 U.S.C. § 1326(a) provides that “Subject to subsection (b) of this
section, any alien who–(1) has been . . . deported, or removed . . . and
thereafter (2) enters, attempts to enter, or is at any time found in, the
United States, unless [he hasn’t left or has permission to reenter], shall be
fined under Title 18, or imprisoned not more than 2 years, or both.”
8 U.S.C. § 1326(a).
2
8 U.S.C. § 1326(b) provides criminal penalties for reentry of certain
removed aliens. Specifically, where “removal was subsequent to a
conviction for commission of an aggravated felony, such alien shall be
fined under such title, imprisoned not more than 20 years, or both.”
8 U.S.C. § 1326(b)(2).
 UNITED STATES V. ARRIAGA-PINON 5

the personal property of DANIEL
BAUTISTA, ABRAHAM LOPEZ without the
consent of and with intent, either permanently
or temporarily, to deprive the said owner of
title to and possession of said vehicle.

In the plea colloquy, Arriaga pled no contest to what the court
described as “unlawful driving or taking of a vehicle in
violation of Vehicle Code Section 10851(a).”

The presentencing report acknowledges a discrepancy as
to the count of conviction in the court documents in that the
judgment notes Arriaga was convicted of receiving stolen
property under Count 3 as well as of stealing a vehicle under
Count 1. Nevertheless, the presentencing report concludes—
and the parties appear to agree—that Arriaga only pleaded
nolo contendere to Count 1 of the felony complaint, which
states that Arriaga did “unlawfully drive and take a certain
vehicle, to wit, 1985 Nissan [personal property of owner] . . .
without the consent of and with intent, either permanently or
temporarily, to deprive the said owner of title to and
possession of said vehicle.” A minute order dated January
22, 2014, also recorded that Arriaga pleaded nolo contendere
to Count 1, a violation of section 10851(a). The plea
transcript reflects the same, indicating that Arriaga pled nolo
contendere on Count 1 alongside a co-defendant who pled
nolo contendere on Count 3.

At sentencing, the United States argued that, pursuant to
United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) § 2L1.2(b)(1)(C), Arriaga should be subject to an
eight-level sentencing enhancement on the basis of this
conviction. Specifically, the government explained that
although section 10851 is not a categorical match for an
6 UNITED STATES V. ARRIAGA-PINON

aggravated felony theft offense under 8 U.S.C.
§ 1101(a)(43)(G), the state statute is divisible and the
modified categorical approach would reveal a match. The
district court agreed and applied the enhancement, ultimately
sentencing Arriaga to eighteen months in prison—the lowest
in the range—after having taken into account some mitigating
factors.

Arriaga timely appealed his sentence, arguing that Mathis
v. United States, 136 S. Ct. 2243 (2016), made the modified
categorical approach inapplicable to section 10851(a) because
the statute is indivisible under Mathis and therefore it cannot
qualify as a generic theft offense. In the alternative, Arriaga
argued that even if section 10851(a) remains divisible under
the new Mathis framework, his own conviction documents do
not unambiguously show that he was convicted of an
aggravated felony theft offense.

Whether a specific “conviction constitutes an aggravated
felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C) is a
question of law that [this Court] review[s] de novo.” United
States v. Vidal, 504 F.3d 1072, 1075 (9th Cir. 2007) (en
banc).

II

Our examination to determine whether a conviction
constitutes an aggravated felony under the Guidelines is
governed by the analysis articulated by the Supreme Court in
Taylor v. United States, 495 U.S. 575 (1990), as recently
modified by Descamps v. United States, 133 S. Ct. 2276
(2013) and Mathis v. United States, 136 S. Ct. 2243 (2016).
Under that analysis, we inquire first “whether the elements of
the crime of conviction sufficiently match the elements of
 UNITED STATES V. ARRIAGA-PINON 7

[the generic federal crime].” Mathis, 136 S. Ct. at 2248. If
the statute is overbroad and thus not a categorical match, we
next ask whether the statute’s elements are also an indivisible
set. See id. at 2248–49. Finally, if the statute is divisible,
then the modified categorical approach applies and “a
sentencing court looks to a limited class of documents . . . to
determine what crime, with what elements, a defendant was
convicted of.” Id. at 2249; see also Almanza-Arenas v.
Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015) (en banc).

Our first task, then, is to examine the statute of conviction
to determine whether it categorically qualifies as a predicate
offense for federal sentencing purposes. In doing so, we
focus solely on whether the elements of the statute of
conviction match the elements of the identified qualifying
federal offense. Taylor, 495 at 600–01. If they do, the
conviction may be used to enhance the sentence without
looking further. However, if the state statute criminalizes
conduct that would not qualify as a federal predicate offense,
then the offense does not categorically qualify as a proper
predicate offense. United States v. Corona-Sanchez, 291 F.3d
1201, 1203 (9th Cir. 2002) (en banc), superseded on other
grounds by U.S.S.G. § 2L1.2 cmt. n. 2 (2002). In this case,
our task is easy, because we have already held that a
conviction under section 10851(a) does not satisfy the
elements of the generic theft offense, as required in order to
apply the categorical approach. Vidal, 504 F.3d at 1074.
Section 10851(a) does not match the elements of the generic
theft offense because it applies not only to the principals and
accomplices, but also to accessories after the fact. See id. at
1074–75.

Thus, we turn to the second analytical step, namely,
whether section 10851(a) contains a single, indivisible set of
8 UNITED STATES V. ARRIAGA-PINON

elements. At first blush, that examination would appear easy,
because we have previously held that “California Vehicle
Code section 10851(a) is divisible in that it imposes criminal
liability in the alternative on principals as well as on
accessories after the fact.” Duenas-Alvarez v. Holder,
733 F.3d 812, 814 (9th Cir. 2013). That would seem to end
the matter. However, Arriaga argues that Mathis compels the
conclusion that the statute is actually indivisible. Thus, he
contends that Duenas-Alvarez must be overruled.

Three-judge panels are not free to overrule prior circuit
precedent unless intervening Supreme Court or en banc
authority “undercut[s] the theory or reasoning underlying the
prior circuit precedent in a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc). As discussed in the concurrence, there
are serious questions as to whether Duenas-Alvarez is clearly
irreconcilable with Mathis. However, we need not reach that
question in this case because, even assuming Duenas-Alvarez
remains good law, the conviction fails to satisfy the modified
categorical test at stage three, and therefore is not a qualifying
predicate offense.

At stage three of the examination, we employ the
modified categorical analysis. “The modified categorical
approach allows courts to look beyond the statutory text to a
limited set of documents to determine the elements of the
state offense of which the defendant was convicted when
some alternative elements of the state crime would match the
federal, generic crime, and other alternative elements would
not.” Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014).
The modified categorical approach “merely helps implement
the categorical approach when a defendant was convicted of
violating a divisible statute.” Descamps v. United States,
 UNITED STATES V. ARRIAGA-PINON 9

133 S. Ct. 2276, 2285 (2013). Thus, the modified approach
“retains the categorical approach’s central feature: a focus on
the elements, rather than the facts, of a crime.” Id.

Under the modified categorical analysis, “[a] prior
conviction based on an overly inclusive criminal statute that
resulted from a guilty plea rather than a jury verdict will
support a sentence enhancement only if the record confirms
that the plea ‘necessarily’ rested on the fact identifying the
[offense] as generic.” United States v. Vidal, 504 F.3d 1072,
1086 (1997) (en banc) (quoting Shepard v. United States,
544 U.S. 13, 21 (2005)). In making this determination, our
review is “limited to examining the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard, 544 U.S. at 16. We
may not “look beyond the record of conviction itself to the
particular facts underlying the conviction.” Fernandez-Ruiz
v. Gonzales, 468 F.3d 1159, 1164 (9th Cir. 2006) (internal
quotation marks omitted) (quoting Tokatly v. Ashcroft,
371 F.3d 613, 620 (9th Cir.2004)).

In this case, we confront a record of conviction almost
identical to the one we considered in Vidal. In that case, we
concluded that the judicially noticable documents did not
satisfy the requirements of the modified categorical approach
because the record of conviction did not establish that he was
actually convicted of a qualifying aggravated felony theft
offense. The felony complaint in Arriaga’s case describes
him as “unlawfully driv[ing] and tak[ing] a certain vehicle,”
which is precisely the same as the complaint in Vidal, see
504 F.3d at 1075. In Vidal’s case, as in Arriaga’s, “the
written plea and waiver of rights form shows that [the
defendant] pled guilty only to driving a stolen vehicle” and
10 UNITED STATES V. ARRIAGA-PINON

that “[n]o recitation of the factual basis for [his] plea appears
on this form.” Id. In both cases, the defendants entered a
nolo contendere plea. Both pleas were given as to the statute,
not the charging document. Thus, neither defendant admitted
“the specific details about his conduct on the counts to which
he pled guilty.” Id. at 1089 (quoting Carty v. Nelson,
426 F.3d 1064, 1068 (9th Cir. 2005)). Further, in Arriaga’s
plea colloquy, the court asked how Arriaga would plead to
“Count 1 with unlawful driving or taking of a vehicle in
violation of Vehicle Code Section 10851(a).” The record is
ambiguous whether Arriaga was pleading nolo contendere to
the “or” stated in the plea colloquy or to the “and” in the
felony complaint. Thus, from the judicially noticable
documents we may examine under the modified categorical
approach, the record does not establish as to whether he was
convicted as a principal or as an accessory after the fact.
Therefore, the conviction does not qualify under the modified
categorical approach.

The government contends that Duenas-Alvarez suggests
a different conclusion. However, Duenas-Alvarez involved
markedly different facts. The defendant was charged with the
crime of taking a vehicle without the owner’s consent and
that he “did willfully and unlawfully drive or take” the
vehicle. 733 F.3d at 815. The abstract of judgment showed
that the defendant pleaded guilty to “auto theft.” Id. In short,
the conviction documents in Duenas-Alvarez differ
significantly from the documents at issue here and in Vidal.
Vidal compels our conclusion that the judicially noticable
documents are not sufficient to show that Arriaga was
convicted of an aggravated felony within the meaning of the
Guidelines.
 UNITED STATES V. ARRIAGA-PINON 11

Accordingly, the district court erred in applying a
sentencing enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C). We therefore reverse and remand for
resentencing.

REVERSED AND REMANDED.

THOMAS, Chief Judge, concurring:

I take the somewhat unusual step of writing a separate
concurrence to address the issue the panel did not need to
resolve, namely whether the Supreme Court’s recent analysis
in Mathis v. United States, 136 S. Ct. 2243 (2016) requires us
to overrule Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir.
2013). I conclude that it does. However, three judge panels
should take care in overruling prior circuit precedent as
posing an “irreconcilable conflict” with intervening precedent
pursuant to Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). In this case, because the defendant was
entitled to relief regardless of whether Duenas-Alvarez
remained good law, there was no need to reach that issue.
However, because Mathis has altered the legal landscape, I
believe that the question should be addressed at an
appropriate time.

In Mathis, the Court emphasized “Taylor’s demand for
certainty” in determining whether the statute of conviction
qualified as a predicate offense under applicable federal law.
136 S. Ct. at 2257 (quoting Shepard v. United States,
544 U.S. 13, 21 (2005)). The focus of Mathis was the
determination of that “certainty” in deciding whether the
statute of conviction was divisible at stage two of the analysis
12 UNITED STATES V. ARRIAGA-PINON

we described in Almanza-Arenas v. Lynch, 798 F.3d 863,
867–68 (9th Cir. 2015) (en banc).

In Mathis, the Court analyzed a law that did not
categorically qualify as a predicate crime. It thus proceeded
to examine whether the statute was divisible because it listed
multiple elements disjunctively, or indivisible because it
enumerated various factual means of committing a single
element of the crime. 136 S. Ct. at 2249. Thus, the “first task
for a sentencing court faced with an alternatively phrased
statute is thus to determine whether its listed items are
elements or means.” Id. at 2256. To make that
determination, the Court instructed that three different
sources should be consulted: (1) state case law, (2) the text of
the statute, and (3) certain conviction records. Id. at 2256–57.

As to state case law, the Court noted that federal courts
are bound by state courts’ interpretation of state law,
including any determination of a state offense’s elements.
Johnson v. United States, 559 U.S. 133, 138–39 (2010)). So,
when a state supreme court has held that a statute lists
“‘alternative method[s]’ of committing one offense . . . a
sentencing judge need only follow” that guidance. Mathis,
136 S. Ct. at 2256 (citing Schad v. Arizona, 501 U.S. 624, 636
(1991)).

The Court also noted that “the statute on its face may
resolve the issue” by assigning different punishments to
different statutory alternatives. Id. Under Apprendi v. New
Jersey, 530 U.S. 466 (2000), those alternatives must
necessarily be elements. Id. By contrast, “if a statutory list
is drafted to offer ‘illustrative examples,’ then it includes only
a crime’s means of commission.” Id. (citing United States v.
 UNITED STATES V. ARRIAGA-PINON 13

Howard, 742 F.3d 1334, 1348 (11th Cir. 2014); United States
v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)).

Finally, if “state law fails to provide clear answers,
federal judges have another place to look: the record of a
prior conviction itself.” Mathis, 136 S. Ct. at 2256. Indeed,
the Court cited Judge Kozinski’s explanation of this tool
approvingly, writing that “such a ‘peek at the [record]
documents’ is for ‘the sole and limited purpose of
determining whether [the listed items are] element[s] of the
offense.” Id. at 2257 (alterations in original) (citing Rendon
v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015) (Kozinski,
J., dissenting from denial of reh’g en banc). Helpful
documents may include “an indictment and correlative jury
instructions.” Id. And the use of “a single umbrella term” in
charging documents might show that each listed alternative
is only a possible means of commission whereas “referencing
one alternative term to the exclusion of all others” could
indicate that the statute contains a list of elements. Id. But
the Court also noted that “such record materials will not in
every case speak plainly, and if they do not, a sentencing
judge will not be able to satisfy ‘Taylor’s demand for
certainty’ when determining whether a defendant was
convicted of a generic offense.” Id. (citing Shepard, 544 U.S.
at 21).

Applying the Mathis analysis to the statute in question
leads to the conclusion that it is an individual statute for
federal sentencing purposes.

First, California case law does not establish that the
statute is divisible under the Mathis analysis. There is no
example of a California case that defines a separate set of
elements under section 10851 for those convicted as a
14 UNITED STATES V. ARRIAGA-PINON

principal under the statute and those convicted as an
accessory after the fact. See People v. Barrick, 654 P.2d
1243, 1255 (Cal. 1982) (in bank) (defining the elements of
section 10851); People v. Moon, 117 P.3d 591, 607 (Cal.
2005) (“[Section 10851] requires a driving or taking with the
specific intent to deprive the owner permanently or
temporarily of title or possession of the automobile.”)
(quoting Barrick, 654 P.2d at 1255); People v. James,
203 Cal. Rptr. 716, 719 (Cal. Ct. App. 1984); People v.
Green, 40 Cal. Rptr. 2d 239, 247 (Cal Ct. App. 1995). A
conviction for being an accessory after the fact does not
trigger the eight-level sentencing enhancement under
U.S.S.G. § 2L1.2(b)(1)(C). Vidal, 504 F.3d at 1090. The fact
that this Court noted in Vidal that a defendant only “could
have been convicted as an accessory after the fact instead of
as, not in addition to, a principal,” 504 F.3d at 1087 n.26
(emphases in original), does not change the fact that a jury
need not agree that a defendant was either the accessory or
the principal. It is only true that any single juror must
conclude beyond a reasonable doubt that the defendant was
either an accessory after the fact or a principal and not both
or either. Vidal relied on one case, People v. Slayden,
166 P.2d 304 (Cal. Ct. App. 1946), to conclude that
prosecution as an accessory was proper “with an
appropriately modified jury instruction.” 504 F.3d at 1084
n.20. But this case from 1946 appears to be an anomaly—the
parties cited no other.1 More recent cases suggest no separate

1
The State cites People v. Umanzor, 2009 WL 604921 (Cal. Ct. App.
2009) (unpublished), asserting that the charges in this case demonstrate
that section 10851(a) must be divisible as to principal and accessory after
the fact liability. But a single, unpublished case from the California Court
of Appeals—which provides an account of the statute in question that
conflicts with other unpublished cases—“fails to provide clear answers.”
 UNITED STATES V. ARRIAGA-PINON 15

accomplice jury instruction is required. See, e.g., People v.
Queen, 2002 WL 1360673, at *4 (Cal. Ct. App. June 24,
2002) (“[T]he trial court properly instructed the jury that a
finding that Queen was a passenger and not in the garage at
the time of the taking would not foreclose a conviction,
provided the jury found all of the elements of the crime were
met, that is, that Queen participated in taking or driving with
the specific intent at the time the car was taken to deprive the
owner of his vehicle either temporarily or permanently. This
response was a proper statement of law.”) (emphases in
original); People v. Venegas, 2012 WL 734094, at *11 (Cal.
Ct. App. Mar. 6, 2012). Therefore, state law does not compel
the conclusion that the statute is divisible.

Second, the statute itself is not a clearly elemental statute,
as described in Mathis. It criminalizes:

[a]ny 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, or any person who is a party
or an accessory to or an accomplice in the
driving or unauthorized taking or stealing[.]

The statute does not attach particular punishments to
potentially distinct crimes, nor does it list elements and
explicitly suggest that they attach to one alternative over
another. Thus, under Mathis, we cannot conclude that the

See Mathis, 136 S. Ct. at 2256. In short, state case law does not
definitively answer whether section 10851(a) is divisible at this time.
16 UNITED STATES V. ARRIAGA-PINON

statute is divisible from the plain language of the statute
alone.

The final analytic step is the Kozinski “peek” at the
records of conviction. As the Opinion suggests, Arriaga’s
records of conviction do not plainly speak to the elements of
his crime of conviction. Nor do the records of conviction of
other similarly-situated defendants.

Thus, when we apply the analytical framework set forth
in Mathis, we cannot conclude, with the certainty that Taylor
demands that California Vehicle Code section 10851(a) is
divisible. Therefore, for the purposes of federal law, we must
treat it as an indivisible statute under Mathis.

Of course, I recognize that our Circuit has reached a
contrary conclusion in cases decided prior to Mathis, as noted
by the majority opinion. We analyzed the statute at issue in
this case in both United States v. Vidal, 504 F.3d 1072 (9th
Cir. 2007) (en banc) and in Duenas-Alvarez v. Holder,
733 F.3d 812 (9th Cir. 2013). The Vidal Court never
explicitly addressed divisibility, holding instead that under
the modified categorical approach, the records of conviction
did not show with certainty whether the defendant was
convicted as a principal or an accessory after the fact under
section 10851(a), thus precluding the extension of liability for
the generic federal offense. 504 F.3d at 1090.

Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013)
did discuss section 10851(a)’s divisibility, but only insofar as
it concluded that the statute “is divisible in that it imposes
criminal liability in the alternative on principals as well as on
accessories after the fact.” Id. at 814. This determination
rested almost entirely on the fact that section 10851(a) is
 UNITED STATES V. ARRIAGA-PINON 17

phrased in the disjunctive—which can mean that a statute
refers to separate crimes with separate elements. However,
as Mathis made clear, the inquiry does not end at noticing that
a statute is phrased in the disjunctive. See Mathis, 136 S. Ct.
at 2253 (“[A] statute’s listing of disjunctive means does
nothing to mitigate the possible unfairness of basing an
increased penalty on something not legally necessary to a
prior conviction.”).

I do not suggest these conclusions were incorrect based
on the law applicable at the time. But Mathis has altered the
legal landscape. In applying Mathis to this statute, I conclude
that we must consider it indivisible for federal sentencing
purposes. Therefore, although I concur fully in the majority
analysis, I believe Mathis requires us, at the appropriate time,
to re-examine our jurisprudence as to the divisibility of
section 10851(a).