NOT FOR PUBLICATION FILED
AUG 2 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANDIDO GONZALEZ-DOMINGUEZ, No. 15-72814
AKA X. Chico, AKA Jose Luis Cuevas,
AKA Juan Carlos Enrique, AKA Carlos Agency No. A074-208-146
Juan Enriquez, AKA Carlos Gonzalez,
AKA Juan Carlos Horigua, AKA Chico
Moniker,
MEMORANDUM*
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent-Appellee.
On Petition for Review of a Final Order of the
Board of Immigration Appeals
Argued and Submitted April 3, 2017
Pasadena, California
Resubmitted August 2, 2018
Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Virginia M. Kendall, United States District Judge for the
Northern District of Illinois, sitting by designation.
Candido Gonzalez-Dominguez, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’s (“BIA”) order affirming its decision
that Gonzalez was ineligible for cancellation of removal because his conviction fell
within the definition of an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and
(U). We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s decision,
which involved a purely legal question, de novo. See Medina–Lara v. Holder, 771
F.3d 1106, 1117 (9th Cir. 2014).
1. Pursuant to 8 U.S.C. § 1229b(a)(3), the Attorney General may cancel the
removal of a lawful permanent resident who has not been convicted of an
aggravated felony, which the Immigration and Nationality Act (“INA”) defines as
including “illicit trafficking in a controlled substance (as defined in section 802 of
Title 21), including a drug trafficking crime (as defined in section 924(c) of Title
18),” 8 U.S.C. § 1101(a)(43)(B), as well as a “conspiracy to commit” that offense,
id. § 1101(a)(43)(U).
Gonzalez pleaded guilty under Arizona Revised Statute § 13-1003 to
conspiracy to transport dangerous drugs for sale, a class 2 felony, in violation of
Arizona Revised Statute § 13-3407(A)(7). Section 13-3407(A)(7) makes it illegal
for an individual to knowingly “[t]ransport for sale, import into this state or offer to
transport for sale or import into this state, sell, transfer or offer to sell or transfer a
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dangerous drug.” Ariz. Rev. Stat. § 13-3407(A)(7). Arizona Revised Statute
§ 13-3401(6) provides a schedule of dangerous drugs.
To determine whether Gonzalez’s state law conviction is an aggravated
felony for purposes of the INA, the Court first asks whether the Arizona statutes at
issue—Arizona Revised Statute § 13-1003 (conspiracy), § 13-3407(A)(7)
(transportation of dangerous drugs), and § 13-3401(6) (list of dangerous drugs)—
are categorical matches to the generic federal offenses. United States v. Martinez-
Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 523
(2017). If the Arizona statutes are broader than the corresponding generic federal
offenses, we look to whether the state statutes are divisible—that is, whether they
“set[] out one or more elements of the offense in the alternative,” Descamps v.
United States, 570 U.S. 254, 257 (2013), instead of merely “enumerat[ing] various
factual means of committing a single element.” Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016). To determine whether a statute is divisible, we look first
to controlling state law. Martinez-Lopez, 864 F.3d at 1039. When a state court
decision that “definitively answers the question” has not been issued, we look to
the plain language of the statute to see if the disjunctive list: (1) identifies what
must be charged (elements); (2) identifies what alternatives carry different
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punishments (elements), or (3) includes an illustrative list (means). Mathis, 136 S.
Ct. at 2256.
If any of the statutes at issue are overbroad and indivisible, the inquiry ends
and the conviction cannot be considered an aggravated felony. Martinez-Lopez,
864 F.3d at 1039. If a statute is overbroad but divisible, however, we apply the
modified categorical approach and look to “judicially noticeable documents of
conviction to determine which statutory phrase was the basis for the conviction” to
determine if Gonzalez’s conviction is for an aggravated felony. Id. (internal
quotation omitted).
The Arizona conspiracy statute at issue, Arizona Revised Statute § 13-1003,
is a categorical match to the generic federal definition of conspiracy under the
INA, 8 U.S.C. § 1101(a)(43)(U). Section 13-1003 and the generic federal
definition have the same three elements: (1) intent to promote or aid the
commission of an offense; (2) an agreement to engage in the offense; and (3) an
overt act. Ariz. Rev. Stat. § 13-1003; United States v. Garcia-Santana, 774 F.3d
528, 534–35 & n.4 (9th Cir. 2014).1
1
Instead of applying the generic federal definition of conspiracy which is
applicable here, Petitioner, relying on our decision in United States v. Rivera-
Constantino, 798 F.3d 900 (9th Cir. 2015), urges the Court to apply the definition
of conspiracy “applicable in the context of a conspiracy to . . . violat[e] 21 U.S.C.
841(a)(1)” under 21 U.S.C. § 846, which does not include an overt act
4
2. We next turn to Arizona Revised Statute § 13-3407(A)(7), which makes
it illegal for an individual to knowingly “[t]ransport for sale, import into this state
or offer to transport for sale or import into this state, sell, transfer or offer to sell or
transfer a dangerous drug.” Ariz. Rev. Stat. Ann. § 13-3407(A)(7). Petitioner
challenges the divisibility of both the statute’s actus reus and dangerous drug
requirements.
The government concedes that the actus reus component of Arizona Revised
Statute § 13-3407(A)(7) is overbroad because “importing a dangerous drug into
Arizona” is not an aggravated felony under § 1101(a)(43)(B) because
“importation” lacks a trafficking element. Nevertheless, the government
maintains that the statute is divisible. Based upon controlling state law and the
plain language of the statute, we agree.
In State v. Cheramie, 189 P.3d 374 (Ariz. 2008), the Arizona Supreme Court
determined that simple possession under § 13-3407(A)(1) is a lesser-included
offense of transportation for sale pursuant to § 13-3407(A)(7). Id. at 376. In
requirement. Following Petitioner’s approach would undermine Garcia-Santana
by creating at least two different generic definitions of conspiracy applicable under
different circumstances, depending on the object of the conspiracy. Furthermore,
in Rivera-Constantino, we recognized that the definition of conspiracy in § 846
was “materially different” from the generic definition of conspiracy applicable to
the INA and that the “context is entirely different.” 798 F.3d at 906.
5
doing so, the Court found that to prove transportation for sale, the state must prove
that the defendant (1) knowingly (2) transported (3) a dangerous drug (4) for sale.
Id. The Court, which referred to the “transportation for sale” element as a distinct
crime, noted that the ordinary definition of transport is “to carry, move, or convey
from one place to another” but did not define “transport” as including any of the
other distinct actus rei components of § 13-3407(A)(7). Id. Although some of
the actus rei of § 13-3407(A)(7) (e.g., import, transfer) could potentially be read to
fall within the Court’s definition of “transport,” other components of § 13-
3407(A)(7), including “offering to transport,” “sell” and “offer to sell” do not
include a transportation element, which indicates that the actus reus requirement of
the statute is composed of distinct, and therefore divisible, elements. At least one
of the unpublished Arizona Appellate Court decisions cited by Petitioner supports
this conclusion. See State v. Bradley, No. 2 CA-CR 2015-0296, 2016 WL
4547161, at *3 (Ariz. Ct. App. Aug. 31, 2016) (noting that offering to transfer
drugs under Section 13-3407(A)(7) “could be committed without necessarily
possessing methamphetamine,” while other actus rei components of § 13-3407,
like transporting for sale, necessarily require possession).
3. We next move to the divisibility of the dangerous drug requirement of
§ 13-3407(A)(7). The parties agree that Arizona’s “dangerous drugs” schedule, as
6
detailed in Arizona Revised Statute § 13-3401(6), is overbroad, as it classifies at
least one substance as a dangerous drug that was not listed in the relevant
Controlled Substances Act schedules at the time of Gonzalez’s conviction.
The government, however, urges us not to reach the merits of this argument,
because Gonzalez failed to adequately present the argument before the BIA. We
disagree. In a footnote in one of his briefs before the BIA, Gonzalez outlined his
argument that Arizona’s list of dangerous drugs was overbroad and indivisible.
Although the BIA did not address the issue, Gonzalez’s argument was sufficiently
detailed to satisfy his obligation to exhaust his administrative remedies. See
Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873–74 (9th Cir. 2008) (finding that
petitioner provided BIA with sufficient notice of his challenge even though his
brief focused on a different part of the aggravated felon definition).
4. Unlike the California statute we examined in Martinez-Lopez, there is no
controlling state law definitively answering whether the dangerous drug
requirement of § 13-3407(A)(7) is divisible, and the plain language of the statute
does not clarify the matter. The authority cited by both parties is mixed and some
is non-precedential. Although the relevant pattern jury instruction supports the
conclusion that the dangerous drug requirement is indivisible, as the government
points out, the Arizona Supreme Court does not draft or approve the Arizona
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pattern instructions. See State v. Logan, 30 P.3d 631, 633 (Ariz. 2001). When
state law fails to provide clear answers as to the divisibility of a statute, courts can
‘peek’ at the petitioner’s conviction record for “‘the sole and limited purpose of
determining whether [the listed items are] element[s] of the offense.’” Mathis,
136 S. Ct. at 2256-57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir.
2015) (Kozinski, J., dissenting from denial of reh’g en banc)). Such a peek at the
record supports the conclusion that the dangerous drug component is divisible.2
5. Because the actus reus and dangerous drug components of § 13-
3407(A)(7) are divisible, we apply the modified categorical approach to determine
if Gonzalez’s conviction is an aggravated felony. An examination of Gonzalez’s
conviction records, which extends to the charging documents, plea agreement and
plea colloquy, makes clear that Gonzalez was convicted of conspiracy to transport
for sale methamphetamine, which qualifies as an aggravated felony under the INA.
See 21 U.S.C. §§ 802(6), 812.
PETITION DENIED.
2
The Petitioner also urges the Court to find Arizona’s definition of
methamphetamine to be overbroad because Arizona does not exempt
Levmetamfetamine (“L-Meth”), an isomer of methamphetamine, from its
definition whereas L-Meth is exempt from criminalization under the CSA when it
is found in an inhaler. We already rejected this argument in United States v.
Vega-Ortiz, 822 F.3d 1031, 1035–36 (9th Cir. 2016).
8