Hassan Bah v. William Barr

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1877

HASSAN BAH,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 18-2106

HASSAN BAH,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

On Petitions for Review of an Order of the Board of Immigration Appeals.

Argued: September 18, 2019 Decided: February 13, 2020

Before THACKER, RICHARDSON, and RUSHING, Circuit Judges.
No. 18-1877, petition dismissed; No. 18-2106, petition denied by published opinion. Judge
Rushing wrote the majority opinion, in which Judge Richardson joined. Judge Thacker
wrote a dissenting opinion.

ARGUED: Bryan James Harrison, BRYAN CAVE LEIGHTON & PAISNER LLP,
Washington, D.C., for Petitioner. Christopher Alan Bates, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rodney
F. Page, Colin S. Harris, BRYAN CAVE LEIGHTON PAISNER LLP, Washington, D.C.;
Claudia R. Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION,
Washington, D.C., for Petitioner. Joseph H. Hunt, Assistant Attorney General, Linda S.
Wernery, Assistant Director, Walter Bocchini, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.

2
RUSHING, Circuit Judge:

Federal immigration law makes aliens who have been convicted under “any law . . .

of a State . . . relating to a controlled substance (as defined [by federal law])” removable—

that is, subject to deportation. 8 U.S.C. § 1227(a)(2)(B)(i). The question in this case is

whether Petitioner’s conviction for possession of ethylone, a substance illegal under both

Virginia and federal law, renders him removable even though Virginia’s controlled

substance statute is broader than its federal counterpart. We hold that it does and so deny

his petition for review.

I.

Petitioner Hassan Bah is a native and citizen of Sierra Leone. He entered the United

States as a child in 1999 on a temporary visitor visa. When the visa expired, Bah stayed in

the United States. Overstaying his visa rendered Bah removable, but because he is now

married to an American citizen, Bah could apply for an adjustment of status to prevent his

deportation. Such an adjustment is unavailable, however, if Bah is also removable because

he committed a qualifying controlled substance offense.

In December 2015, a Virginia grand jury indicted Bah for possession of “3,4-

methylenedioxymethamphetamine (MDMA),” as well as possession of marijuana.

Forensic testing later revealed that the substance believed to be MDMA was in fact “3,4-

methylenedioxyethcathinone (ethylone).” Ethylone is a chemically similar variant of

MDMA that is listed separately from MDMA on Schedule I of Virginia’s controlled

substance schedules. See Va. Code § 54.1-3446. It is undisputed that ethylone, a positional

isomer of butylone, qualifies as a Schedule I controlled substance under federal law, as

3
does MDMA. See 21 C.F.R. § 1308.11(d)(62) (butylone); 21 C.F.R. § 1308.11(d)(11)

(MDMA); see also Oral Arg. at 21:44–23:10, 33:10–33:43.

After the forensic testing, Bah’s indictment was amended by striking the reference

to MDMA and handwriting “3,4-methylenedioxyethcathinone (ethylone)” in its place.

A.R. 261. The word in parentheses in the handwritten amendment is unclear and could be

read as “ethylene.” A bench trial was conducted in the Circuit Court of the City of

Alexandria, Virginia. The court acquitted Bah of “Possession of Marijuna [sic]” but found

him guilty of “Possession of Ethylene as charged in Count One of the indictment as

amended.” A.R. 264. 1

The Department of Homeland Security (DHS) subsequently initiated removal

proceedings against Bah. DHS alleged that Bah was removable both because he had

overstayed his temporary visitor visa and because he had been convicted of felony

possession of a controlled substance in violation of Virginia Code § 18.2-250(A)(a).

Before the Immigration Judge, Bah conceded that he had overstayed his visa but contested

the charge of removability predicated on his conviction for a controlled substance offense.

The Immigration Judge deemed Bah removable but noted that she would reconsider her

decision if Bah could show that the substance he had been convicted of possessing was not

illegal under federal law.

1
Ethylene is “a hydrocarbon gas.” U.S. Indus. Chems., Inc. v. Carbide & Carbon
Chems. Corp., 315 U.S. 668, 670 (1942); see also “Ethylene,” Encyclopaedia Britannica,
https://www.britannica.com/science/ethylene (2020) (“Natural sources of ethylene include
both natural gas and petroleum; it is also a naturally occurring hormone in plants . . . and
in fruits . . . .”). It is not a controlled substance under either Virginia or federal law.
4
 Bah moved for reconsideration, arguing that Virginia law prohibits possession of

more substances than federal law and that Virginia law does not make the identity of the

particular controlled substance—as opposed to the class of controlled substances—an

element of the crime of unlawful possession. The Immigration Judge denied the motion.

Bah pressed his argument before the Board of Immigration Appeals, which rejected it in a

written decision. The Board ruled that Virginia Code § 18.2-250 is divisible as to the

identity of the controlled substance and that the Immigration Judge’s decision to examine

the amended indictment to determine that Bah was convicted of possessing a controlled

substance as defined by federal law was appropriate. See A.R. 3–7. Bah timely petitioned

this Court for review. 2

II.

The Courts of Appeals “generally lack jurisdiction to review orders of removal

when an alien is removable for a controlled substance conviction,” Jaquez v. Sessions, 859

F.3d 258, 260 (4th Cir. 2017); see 8 U.S.C. § 1252(a)(2)(C), but we retain jurisdiction to

review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D). This case

raises a question of law: whether a conviction for possessing ethylone under Virginia Code

§ 18.2-250(A)(a) triggers removal under 8 U.S.C. § 1227(a)(2)(B). We review this

question of law de novo. Jaquez, 859 F.3d at 261.

2
Bah petitioned for review of the Board’s original decision, see No. 18-1877, and
filed a second petition for review of the Board’s amended decision, see No. 18-2106.
Because the Board’s amended decision vacated its original decision, we dismiss Bah’s
petition in No. 18-1877.
5
 A.

Section 1227(a)(2)(B)(i), a provision of the Immigration and Nationality Act,

authorizes the removal of “[a]ny alien who at any time after admission has been convicted

of a violation of . . . any law or regulation of a State . . . relating to a controlled substance

(as defined in section 802 of Title 21), other than a single offense involving possession for

one’s own use of 30 grams or less of marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i). Section

1227(a)(2)(B)(i) incorporates 21 U.S.C. § 802, which defines a “controlled substance” as

“a drug or other substance, or immediate precursor,” included on one of five federal

schedules. 21 U.S.C. § 802(6).

To trigger immigration consequences, an alien’s controlled substance conviction

must involve a substance that is included on one of the federal schedules. Mellouli v.

Lynch, 135 S. Ct. 1980, 1987, 1990–1991 (2015). When a State’s schedule of controlled

substances is coextensive with or narrower than the federal schedules, removability is clear.

See Martinez v. Sessions, 893 F.3d 1067, 1070 (8th Cir. 2018). But when a State punishes

possession of substances not proscribed by federal law, there is a possibility that the state

conviction involves a substance not listed on the federal schedules, in which case the

conviction would fall outside the purview of Section 1227(a)(2)(B)(i). See, e.g., Guillen

v. United States Attorney General, 910 F.3d 1174, 1180 (11th Cir. 2018).

“Because Congress predicated deportation on convictions, not conduct,” we employ

the categorical approach to assess whether a predicate controlled substance offense renders

an alien removable. Mellouli, 135 S. Ct. at 1986 (internal quotation marks omitted). Under

the categorical approach, we examine “the state statute defining the crime of conviction”

6
and compare it with the relevant federal law—here, the federal controlled substance

schedules. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (internal quotation marks

omitted); see also Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Taylor v. United

States, 495 U.S. 575, 599–600 (1990). If the state statute penalizes conduct not covered

by its federal comparator, then the state statute is “overbroad” and, generally speaking, a

conviction under that statute cannot be a predicate for immigration consequences. See

Descamps v. United States, 570 U.S. 254, 261 (2013).

But finding a state statute overbroad is not always the end of the inquiry. Some

overbroad statutes are “divisible”—they set forth multiple crimes, with varying elements—

and some of the crimes set forth therein would pass the categorical inquiry if examined on

their own. Mathis, 136 S. Ct. at 2249. Courts examining a divisible statute employ the

“modified categorical approach,” which entails an examination of a “limited class of

documents (for example, the indictment, jury instructions, or plea agreement and colloquy)

to determine what crime, with what elements, a defendant was convicted of.” Id.; see also

Shepard v. United States, 544 U.S. 13, 26 (2005). The modified categorical approach

“retains the categorical approach’s central feature: a focus on the elements, rather than the

facts, of a crime.” Descamps, 570 U.S. at 263. “All the modified approach adds is a

mechanism for making that comparison when a statute lists multiple, alternative elements,

and so effectively creates several different crimes.” Id. at 263–264 (internal alteration and

quotation marks omitted) (citing Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).

A statute is “indivisible,” and thus not amenable to application of the modified

categorical approach, if it “sets out a single . . . set of elements to define a single crime.”

7
Mathis, 136 S. Ct. at 2248. Of course, an indivisible statute may identify alternative means

by which a violation of the single enumerated crime can be accomplished. Id. at 2249.

Thus, “[t]he first task for a . . . court faced with an alternatively phrased statute is . . . to

determine whether its listed items are elements or means.” Id. at 2256. “If they are

elements,” the court applies the modified categorical approach, “review[ing] the record

materials to discover which of the enumerated alternatives” was the basis for the

defendant’s conviction, and then “compar[ing] that element (along with all others [relevant

in the particular context]) to those of the generic crime.” Id. But if the listed alternatives

are means, then the court “has no call to decide which of the statutory alternatives was at

issue in the earlier prosecution.” Id.

When making this critical determination—elements or means—the Supreme Court

has directed courts to look first to “authoritative sources of state law.” Id.; see also United

States v. Jackson, 713 Fed. App. 172, 175 (4th Cir. 2017) (per curiam). When a State’s

judiciary has addressed the question, we “need only follow what it says.” Mathis, 136 S.

Ct. at 2256. If “state law fails to provide clear answers,” then we may look to “the record

of [the] prior conviction itself” to discern if statutory alternatives are elements or means.

Id. at 2256–2257; see also Descamps, 570 U.S. at 264 n.2.

B.

The statute under which Bah was convicted, Virginia Code § 18.2-250(A), makes it

“unlawful for any person knowingly or intentionally to possess a controlled substance”

without a valid prescription from a medical professional or as otherwise authorized by law.

Four subsections identify the punishments applicable to various categories of controlled

8
substances. The subsection under which Bah was convicted provides that “[a]ny person

who violates this section with respect to any controlled substance classified in Schedule I

or II of the Drug Control Act shall be guilty of a Class 5 felony.” Va. Code § 18.2-

250(A)(a). 3 It is undisputed that Virginia’s Schedules I and II penalize the possession of

some substances not illegal under federal law. Thus, the Virginia statute under which Bah

was convicted is overbroad and can render him removable only if the statute is divisible.

Bah’s primary argument is that Section 18.2-250(A)(a) is indivisible. He contends

that the crime set forth in the statute has two elements: (1) possession of a Schedule I or II

controlled substance, and (2) knowledge that the substance is a controlled substance. The

“actual identity of the drug,” Bah asserts, is not an element, only a means by which the first

element is established. Alternatively, Bah argues that even if Section 18.2-250(A)(a) is

divisible, it is divisible by schedule, not substance. The Government advances the contrary

view, arguing that the identity of the particular controlled substance is a required element.

We believe the Government has the better reading of Virginia law. Both parties rely

primarily on a decision of the Virginia Court of Appeals, Sierra v. Commonwealth, 722

S.E.2d 656 (Va. Ct. App. 2012). In Sierra, the issue was whether Section 18.2-250 required

a defendant “to know the exact substance he is possessing”; Sierra argued that the evidence

did not prove he “knew he possessed methylphenidate.” 722 S.E.2d at 658; see id. at 657

n.1. Importantly for our purposes, in addressing this question the Sierra court contrasted

3
Both “controlled substance” and the various schedule classifications are defined
terms. See Va. Code § 18.2-247(A), § 54.1-3400 et seq. Virginia’s Schedule I, the
schedule containing MDMA and its variants, is codified at Virginia Code § 54.1-3446.

9
the statute’s mens rea and actus reus requirements, stating: “The specific type of substance

found in a defendant’s possession is an actus reus element the Commonwealth must prove

pursuant to subparts (a)–(c) of Code § 18.2-250(A), but it is not an element to which the

mens rea requirement found earlier in Code § 18.2-250(A) applies.” Id. at 660 (emphasis

added). This pronouncement—that the specific identity of the substance is an element of

the crime—establishes that Section 18.2-250(A)(a) is divisible by the particular controlled

substance possessed.

Reading the court’s recitation of Virginia law in context, we cannot accept Bah’s

argument that the “specific type of substance” in Sierra refers to the relevant schedule

rather than the particular substance possessed. Although Sierra primarily addressed the

statute’s mens rea requirement, the court repeatedly defined its inquiry in terms of the

precise identity of the controlled substance at issue. See, e.g., 722 S.E.2d at 657 (framing

argument as concerning knowledge of “the particular substance found in his possession”);

id. at 657 n.1 (quoting Sierra’s argument about his awareness of “the particular substance,

i.e., Concerta”); id. at 658 (noting argument that the evidence was insufficient to prove

Sierra “knew he possessed methylphenidate, or Concerta”); id. (identifying the question as

“whether Code § 18.2-250 requires a defendant to know the exact substance he is

possessing” or “precisely what controlled substance it is”); id. at 662 (referring to “the

precise identity of that substance” and “exactly what substance he has”). This context

confirms that when the court concluded “[t]he specific type of substance” is not an element

of Section 18.2-250(A)(a)’s mens rea requirement, but is “an actus reus element the

Commonwealth must prove,” the court was referring to the specific identity of the

10
controlled substance possessed, not merely its classification on Virginia’s controlled

substance schedules. Id. at 660.

The parties also direct our attention to a recent memorandum decision of the

Virginia Court of Appeals, Howard v. Commonwealth, No. 0780-17-1, 2018 WL 2604993

(Va. Ct. App. June 5, 2018), which Bah cited in his immigration proceedings below, and

which supports this interpretation of Section 18.2-250(A)(a). In Howard, the defendant

possessed a single capsule that contained two controlled substances, heroin and fentanyl.

Id. at *1. He was convicted of two violations of Section 18.2-250. Id. On appeal, the

defendant argued that the Commonwealth had failed to prove that he had “knowingly and

intentionally possessed two different controlled substances” because the substances were

inside a single capsule and “appeared visually uniform.” Id. The Howard court, quoting

its opinion in Sierra, reiterated that “the actual substance in a defendant’s possession ‘is

an actus reus element the Commonwealth must prove pursuant to [the statute], but it is not

an element to which the mens rea requirement . . . applies.’” Id. at *4 (emphasis added)

(quoting Sierra, 722 S.E.2d at 660). The court affirmed both convictions, explaining that

the relevant “unit of prosecution” under the statute is each specific, individually-identified

substance, reflecting the Virginia Legislature’s intent “to convict and punish separately . . .

the possession of each controlled substance” possessed by a defendant. Id. at *3.

11
 Other decisions from the Virginia Court of Appeals reflect a similar focus on the

specific identity of the controlled substance. 4 As the court has explained, “a successful

drug prosecution must establish both the existence of a proscribed substance and an

accused’s unlawful activity with respect to it.” Hinton v. Commonwealth, 421 S.E.2d 35,

37 (Va. Ct. App. 1992). The “nature of the illegal substance” can be proven directly (by

forensic testing) or circumstantially (by testimony about the nature of the substance). Id.

For example, “[p]roof that [a] substance was cocaine” could be provided by testimony

about “‘the physical appearance of the substance,’” testimony that “‘the substance

produced the expected effects when sampled by someone familiar with the illicit drug,’”

or “‘evidence that the substance was called by the name of the illegal narcotic by the

defendant or others in his presence.’” Hill v. Commonwealth, 379 S.E.2d 134, 136 (Va.

Ct. App. 1989) (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976)); see

id. (“Users and addicts, if they have gained a familiarity or experience with a drug, may

4
The dissent discusses two cases from the Virginia Supreme Court but rightly
acknowledges that they do not “explicitly address whether a specific scheduled controlled
substance constitutes an element of the offense.” Infra at 25. Young v. Commonwealth,
659 S.E.2d 308 (Va. 2008), concerned the mens rea element and, consistent with other
Virginia precedent, explained that the defendant’s knowledge of the “nature and character”
of the drug could be established by circumstantial evidence “such as the drug’s distinctive
odor or appearance, or statements or conduct of others in his presence that would tend to
identify it.” Id. at 310. Herrington v. Commonwealth, 781 S.E.2d 561 (Va. 2016), did not
discuss the elements of the offense at all. The question in that case was whether “the district
court’s finding of probable cause for the charge of simple possession []or its finding of no
probable cause for the charge of possession with intent to sell or distribute precluded the
Commonwealth from obtaining an indictment on a charge of possession with intent to sell
or distribute.” Id. at 564. The identity of the controlled substance was not pertinent to this
legal question.

12
identify it.”). The type of circumstantial evidence accepted by Virginia courts reinforces

the notion that it is the particular identity of the substance that is relevant under Virginia

law. Indeed, the emphasis on how the Commonwealth can prove the specific identity of

the controlled substance would be unwarranted if Virginia law were satisfied merely with

proof that the substance, whatever it was, was prohibited. 5

Virginia’s Model Jury Instructions reinforce our understanding that the identity of

the controlled substance is an element of the crime in Section 18.2-250(A)(a). The relevant

instruction first informs the jury that the “defendant is charged with [the] crime of

possessing (name of drug), which is a Schedule [I; II; III] controlled substance.” Va. Model

Jury Inst. Crim. No. 22.500(a) (Sept. 2018) (first brackets added). It then explains that the

“Commonwealth must prove beyond a reasonable doubt that the defendant knowingly and

intentionally possessed (name of drug).” Id. And it ends with the admonition that “[i]f

5
Both Bah and the Government also cite cases analyzing the divisibility of other
States’ drug laws. Because we find the Virginia courts’ construction of Section 18.2-250
to be controlling, a close examination of those cases is unnecessary. See Mathis, 136 S.
Ct. at 2256 (when “a state court decision definitively answers the question” of whether
statutory alternatives are elements or means, a federal court “need only follow what it
says”). Nevertheless, we note that several of our sister circuits have concluded that state
statutes similar to Virginia’s Section 18.2-250 are divisible by specific substance. See,
e.g., Raja v. Sessions, 900 F.3d 823, 828–829 (6th Cir. 2018) (concluding that
Pennsylvania’s controlled substance statute is divisible because “each type of controlled
substance is a separate element,” relying on Pennsylvania precedent that “upheld
consecutive sentences for the delivery of two different controlled substances in a single
vial”); see also Martinez, 893 F.3d at 1071–1073 (finding Missouri’s statute divisible by
substance); Guillen, 910 F.3d at 1176 (same for Florida); United States v. Martinez-Lopez,
864 F.3d 1034, 1040 (9th Cir. 2017) (en banc) (same for California). But see Najera-
Rodriguez v. Barr, 926 F.3d 343, 347 (7th Cir. 2019) (Illinois statute is “not divisible”);
Harbin v. Sessions, 860 F.3d 58, 68 (2d Cir. 2017) (New York statute “is indivisible”).

13
you find that the Commonwealth has failed to prove beyond a reasonable doubt that the

defendant possessed (name of drug), then you shall find the defendant not guilty.” Id. The

import of these instructions is clear: If the factfinder cannot determine beyond a reasonable

doubt that the defendant possessed the specific controlled substance alleged, then the

defendant is not guilty because the Commonwealth failed to prove an element of the

offense.

Furthermore, the Commonwealth’s decision to amend Bah’s indictment to reflect

the results of forensic testing, which revealed the substance to be ethylone rather than

generic MDMA, suggests that the specific identity of the substance is an element, not a

means. See Mathis, 136 S. Ct. at 2256–2257 (authorizing a “peek at the record documents”

“for the sole and limited purpose of determining whether the listed items are elements of

the offense” (internal quotation marks and alteration omitted)). Virginia’s Schedule I

outlaws possession of both generic MDMA and ethylone, see Va. Code § 54.1-3446, so if

the identity of the substance were merely a means, Bah’s original indictment would have

been legally sufficient and amendment unnecessary.

Because Virginia authority requires the Commonwealth to prove “[t]he specific type

of substance found in a defendant’s possession,” Sierra, 722 S.E.2d at 660, the drug’s

identity is an element of the crime, not merely a means. We therefore conclude that Section

18.2-250(A)(a) is divisible by substance and the modified categorical approach is

appropriate.

14
 C.

Application of the modified categorical approach here is straightforward. “This

approach permits courts to ‘examine a limited class of documents’” such as “charging

documents” and “findings of fact and conclusions of law from a bench trial” to determine

“which of a statute’s alternative elements formed the basis of the defendant’s prior

conviction.” Larios-Reyes v. Lynch, 843 F.3d 146, 153 & n.1 (4th Cir. 2016) (quoting

Descamps, 133 S. Ct. at 2284, and Johnson v. United States, 559 U.S. 133, 144 (2010)).

Count 1 of the amended indictment charged Bah with possessing “3,4-

methylenedioxyethcathinone (ethylone)” or, depending on how one reads the handwriting,

“(ethylene).” A.R. 261. The parties agree that, regardless of the handwritten word in

parentheses, the amended indictment correctly identified ethylone by its scientific name,

3,4-methylenedioxyethcathinone. See Oral Arg. at 6:01–6:23, 23:34–23:56. The circuit

court, in its judgment order after the bench trial, found Bah guilty “as charged in Count

One of the indictment as amended.” A.R. 264. The fact that the court misspelled the

substance as “ethylene” instead of “ethylone”—among other misspellings in the order—

does not render Bah’s record of conviction inconclusive, in light of the court’s specific

reference to Count 1 of the amended indictment, which identified ethylone by its scientific

name. 6

6
The circuit court appears to have committed a “scrivener’s error,” which “result[s]
from a minor mistake or inadvertence and not from judicial reasoning or determination”;
this type of “drafter’s or typist’s technical error . . . can be rectified without serious doubt
about the correct reading.” “Error,” Black’s Law Dictionary (11th ed. 2019). As
previously noted, ethylene is not a controlled substance under either Virginia or federal

15
 Because ethylone is a controlled substance under both Virginia and federal law,

there is a categorical match between the comparable elements. Accordingly, Bah’s

conviction qualifies as a “violation of . . . any law or regulation of a State . . . relating to a

controlled substance (as defined in [federal law]),” 8 U.S.C. § 1227(a)(2)(B)(i), and the

BIA did not err when it determined Bah was removable on account of that conviction.

Bah’s operative petition for review, number 18-2106, is therefore

DENIED,

and his moot petition, number 18-1877, is

DISMISSED.

law. Contrary to the dissent’s concern, see infra at 38–39, if Bah had been convicted of
possessing ethylene, which is not illegal in Virginia, he would have had a powerful
incentive to challenge his conviction, as he would have committed no crime.
16
THACKER, Circuit Judge, dissenting:

As the majority explains, the Board of Immigration Appeals (“BIA”) ordered

Petitioner’s deportation pursuant to 8 U.S.C. § 1227(2)(B)(i), which defines deportable

persons to include, in relevant part, “[a]ny alien who at any time after admission has been

convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled

substance.” Therefore, our central question is whether Petitioner’s Virginia conviction was

for a violation “relating to a controlled substance.”

I respectfully dissent from the majority’s decision concluding that Petitioner’s prior

conviction constitutes a categorical match to the relevant federally defined offense

“relating to a controlled substance” as specified in the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(2)(B)(i). As detailed below, the majority analysis falters at

several points.

To begin, in order to determine whether a prior state conviction subjects a person to

removal pursuant to the INA, we apply the categorical approach. See Mellouli v. Lynch,

135 S. Ct. 1980, 1985–86 (2015). The categorical approach requires that “we look not to

the facts of the particular prior case, but instead to whether the state statute defining the

crime of conviction categorically fits” with the crime identified in the INA. United States

v. Lopez-Collazo, 824 F.3d 453, 463 (4th Cir. 2016) (quoting Moncrieffe v. Holder, 569

U.S. 184, 190 (2013)). The federal offense “must be viewed in the abstract, to see whether

the state statute shares the nature of the federal offense that serves as a point of

comparison.” Moncrieffe, 569 U.S. at 190.

17
 Categorical approach analysis “focus[es] solely on whether the elements of the

crime of conviction sufficiently match the elements of [the generic federal offense], while

ignoring the particular facts of the case.” Mathis v. United States., 136 S. Ct. 2243, 2248

(2016). For proper comparison, the elements included in the state offense must be precisely

identified. See id. A statute setting out a single set of elements defining a single crime is

considered “indivisible,” meaning the categorical approach can be straightforwardly

applied to determine whether the state crime’s elements match the federal offense. Id.

By contrast, other statutes “may list elements in the alternative, and thereby define

multiple crimes.” Mathis, 136 S. Ct. at 2249. These “divisible” statutes require courts to

determine which of the alternative elements served as the basis for the state conviction, so

that those specific elements can be compared with the federal offense. Id. “[W]hen a prior

conviction is for violating a so-called ‘divisible statute,’” we apply a “modified categorical

approach.” Descamps v. United States, 570 U.S. 254, 257 (2013). The modified

categorical approach “permits a court to determine which statutory phrase was the basis

for the conviction” by consulting the defendant’s record of conviction. Johnson v. United

States, 559 U.S. 133, 144 (2010) (citations omitted). Using the modified categorical

approach, courts may “look[ ] to a limited class of documents (for example, the indictment,

jury instructions, or plea agreement and colloquy) to determine what crime, with what

elements, a defendant was convicted of.” Mathis, 136 S. Ct. at 2249 (citation omitted).

The court then evaluates whether that crime categorically matches the federally defined

offense. Id.

18
 In my view, the majority opinion improperly truncates the proper analysis here at

the very first step, by concluding that Virginia courts have clearly spoken on the issue at

hand, that is, whether controlled substance identity is an element of Appellant’s offense of

conviction. In support of the opinion that controlled substance identity is an element, the

majority leans on Virginia case law. But, respectfully, a single ambiguous published state

appellate court decision paired with an unpublished appellate memorandum decision do

not clearly state anything definitive. To the contrary, here, where we cannot be certain as

to whether the specific identity of a controlled substance is an element of Virginia law, we

cannot determine that Petitioner’s prior offense is a categorical match to the INA-defined

offense. Therefore, we cannot allow the Virginia offense to trigger federal immigration

consequences. This is too harsh a consequence in the face of such ambiguity.

I.
Applying the Categorical Approach

Although the majority identifies the correct analytical framework, it errs in applying

this framework. The below categorical approach evaluation of Petitioner’s conviction

explains where the majority goes off track.

Foreshadowing how the majority ends up short-circuiting the entire analysis, from

the outset the majority opinion characterizes Petitioner’s prior conviction as being “for

possession of ethylone.” Ante at 3. This assumes an answer to the question we are

supposed to be asking: how does Virginia define its controlled substance possession

convictions? Is it “possession of a controlled substance”? “Possession of a schedule I or II

controlled substance?” Or is it in fact “possession of [specific controlled substance, such

19
as heroin]?” It is our responsibility to determine whether an individual can be convicted

of possession pursuant to Virginia Code section 18.2-250(A) without the specific identity

of the controlled substance necessarily being proven. As explained below, there is nothing

to support the view that a conviction could not occur even if, as between possible

substances on a schedule, a factfinder has not been convinced of which exact substance

was present.

Petitioner was convicted pursuant to Virginia Code section 18.2-250(A), which

makes it “unlawful for any person knowingly or intentionally to possess a controlled

substance,” with limited exceptions. “Controlled substance” is defined in Virginia law as

“a drug, substance, or immediate precursor in [state] Schedules I through VI.” 1 Va. Code

Ann. § 54.1-3401. A person who violates Virginia Code section 18.2-250 “with respect to

any controlled substance classified in Schedule I or II of [Virginia’s] Drug Control Act

shall be guilty of a Class 5 felony,” again with limited exceptions. Va. Code Ann. § 18.2-

250(A)(a). Different punishments are separately specified for Schedules III–VI. Va. Code

Ann. §§ 18.2-250(A)(b) – 18.2-250(A)(c). Like the federal controlled substances regime,

each of Virginia’s schedules lists various criminalized substances by name. See Va. Code

Ann. §§ 54.1-3446 – 54.1-3455.

1
An “immediate precursor” to a controlled substance is “a substance which the
[Virginia] Board of Pharmacy has found to be and by regulation designates as being the
principal compound commonly used or produced primarily for use, and which is an
immediate chemical intermediary used or likely to be used in the manufacture of a
controlled substance, the control of which is necessary to prevent, curtail, or limit
manufacture.” Va. Code Ann. § 54.1-3401.

20
 Both parties concede that, on its face, Virginia’s drug possession statute is

overbroad, meaning the state law prohibits conduct not criminalized at the federal level.

Petitioner provided an expert’s affidavit concluding that Virginia’s drug schedules contain

at least 52 substances not found on federal schedules, including 42 substances on Virginia’s

Schedule I alone. A.R. 387. 2 Therefore, in order to determine whether Petitioner’s

conviction categorically matches the federally defined offense, we must first decide

whether Virginia’s overinclusive schedules are divisible down to specific controlled

substance identity such that Petitioner’s conviction could be further evaluated using the

modified categorical approach. If not, our inquiry must end with the determination that the

statute is indivisible as to controlled substance identity and thus cannot be a categorical

match due to the overbreadth of the schedules.

When a statute strings together a list of alternatives, as the controlled substances

schedules do here, determining whether the law is divisible or indivisible hinges on

whether the statute’s list enumerates alternative elements that must be proven beyond a

reasonable doubt as opposed to merely alternative means of satisfying a single element.

Mathis, 136 S. Ct. at 2248–49. “A criminal offense is ‘divisible’ only ‘when a statute lists

multiple, alternative elements, and so effectively creates several different crimes.’” United

States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013) (quoting Descamps, 570 U.S. at

263–64).

2
Citations to the “A.R.” refer to the Administrative Record filed by the parties in
this appeal.
21
 “Elements are the constituent parts of a crime’s legal definition -- the things the

prosecution must prove to sustain a conviction.” Mathis, 136 S. Ct. at 2248 (internal

quotation marks omitted). “A prosecutor charging a violation of a divisible statute must

generally select the relevant element from its list of alternatives.” Descamps, 570 U.S. at

272. The factfinder “must then find that element, unanimously and beyond a reasonable

doubt.” Id.

But instead of identifying elements, a statute’s alternatives list may simply

enumerate the variety of means by which a single element of a particular offense can be

proven. Mathis, 136 S. Ct. at 2249. The Supreme Court explained this concept in Mathis

v. United States by describing a statute requiring use of a “deadly weapon” and defining

deadly weapon to include a “knife, gun, bat, or similar weapon.” Id. at 2249 (citations

omitted). Such a statute would allow a jury to convict, “even if some jurors concluded that

the defendant used a knife while others concluded he used a gun, so long as all agreed that

the defendant used a deadly weapon.” Id. (internal quotation marks omitted). A list of

means thus presents “disjunctive factual scenarios rather than separate elements, so that a

[factfinder] need not make any specific findings. . . on that score.” Id.

The question here is whether Virginia’s law provides its list of controlled substances

as alternative elements defining separate controlled substance possession offenses, or as

alternative factual means of satisfying the “controlled substance” element of a single type

of controlled substance possession crime.

The Supreme Court provides a formula for this “threshold” elements-versus-means

inquiry. Mathis, 136 S. Ct. at 2256. The Court first directs us to determine if “a state court

22
decision definitively answers the question.” Id. If not, “the statute on its face [might]

resolve the issue.” Id. Where “state law fails to provide clear answers,” the Court instructs

us to look at the record of the prior conviction itself “for the sole and limited purpose of

determining whether the listed items are elements of the offense.” Id. at 2256–57 (internal

quotation marks omitted).

As provided in Shepard v. United States, an underlying “record of conviction” is

limited to charging documents, jury instructions, plea colloquies and plea agreements, “or

to some comparable judicial record of this information.” 544 U.S. 13, 25–26 (2005). “In

cases tried without a jury, the closest analogs to jury instructions would be a bench-trial

judge’s formal rulings of law and findings of fact . . . .” Id. at 20. This is the same set of

“Shepard documents” that would be evaluated using the modified categorical approach if

a statute is determined to be divisible. Mathis, 136 S. Ct. at 2249. At the “elements-versus-

means” stage, we look to these documents only to see whether they make clear that a

defendant’s conviction rested on a single enumerated alternative that would have been

proven beyond a reasonable doubt.

Because the majority predetermines a conclusion -- that Petitioner’s controlled

substance offense should “count” for immigration purposes -- its analysis is flawed from

its inception. In applying Mathis, the majority veers off course at the very first turn. Faced

with an array of Virginia court decisions, the majority selectively ignores controlling case

law to make it appear as though the state courts have spoken clearly. And, in so doing, the

majority never reaches the second step prescribed by Mathis -- analysis of the state statute’s

23
language. Thereby, the majority dodges having to consult Petitioner’s garbled record of

conviction at the third step.

The majority rests the entire outcome of this case on supposedly clear Virginia law.

But they do not and cannot point to Virginia courts “definitively answer[ing]” our question.

Mathis, 136 S. Ct. at 2256. We should not be guessing on this issue. Even if it seems quite

likely that Virginia considers controlled substance identity to be an element, that is not

enough; we need to be certain, otherwise we cannot hold the statute to be divisible.

Under a complete application of Mathis to this case, contrary to the majority’s

conclusion otherwise, at every stage, unescapable ambiguity dictates that Petitioner’s

conviction is not a categorical match to the INA-defined offense. For the sake of clarity in

the midst of all the ambiguity in this case, I have attached as appendices two flowcharts

illustrating the correct application of Mathis and the categorical approach.

A.
Mathis step one: Virginia state court decisions

1.

We look first to Virginia’s state court decisions. Mathis, 136 S. Ct. at 2256–57

(looking first to state precedent and explaining that, where a state decision “definitively

answers the question, . . . . [we] need only follow what it says” (citation omitted)). “[A]

federal court is bound by the state supreme court’s interpretation of state law, including its

determination of the elements of the potential predicate offense.” Hemingway, 734 F.3d at

333 (internal quotation marks omitted). A survey of the landscape reveals that Virginia

courts have been anything but clear on the question at hand. The limited available

24
precedent makes obvious that a “definitive[ ] answer” is nowhere to be found. Mathis, 136

S. Ct. at 2256.

Of note, the majority’s conclusion is contradicted by the most recent published case

by Virginia’s highest court addressing indictment pursuant to Virginia Code section 18.2-

250. The defendant in Herrington v. Commonwealth disputed his grand jury indictment

for the sale/distribution offense pursuant to Virginia Code section 18.2-248. 781 S.E.2d

561, 563 (Va. 2016). There, the defendant was first charged pursuant to Virginia Code

section 18.2-248 with “possession of a Schedule I or II controlled substance with the intent

to sell or distribute,” but the district court reduced the charge to “possession of a Schedule

I or II controlled substance in violation of Code § 18.2-250.” Herrington, 781 S.E.2d at

562–63. Herrington does not explicitly address whether a specific scheduled controlled

substance constitutes an element of the offense. But the state supreme court’s

characterization of the charges as “possession of a Schedule I or II controlled substance”

suggests that controlled substance identity is not an element “going toward the creation of

separate crimes,” Mathis, 136 S. Ct. at 2250, but rather alternative means of satisfying the

“Schedule I or II controlled substance” component of the “charge of simple possession of

a controlled substance,” Herrington, 781 S.E.2d at 564. If controlled substance identity

were an element, per Mathis, the Virginia Supreme Court would refer to the controlled

substance offense by the specific substance implicated. Mathis, 136 S. Ct. at 2249 (saying

alternative elements “define multiple crimes”). But it did not.

Instead, the entire Herrington opinion lacks any reference at all to the precise

substance the defendant possessed and, throughout, only discusses the charges pursuant to

25
Virginia Code section 18.2-250 as “possession of a Schedule I or II controlled substance.”

Given that Herrington deals with the sufficiency of the indictment and the comparison of

two separate controlled substance charges (distribution versus simple possession), one

would expect the court to have been careful in its definition of each crime. Further, and

perhaps even more telling, the Herrington court explicitly states that the indictment for

“schedule I or II controlled substance possession” met the requirements of Virginia Code

section 19.2-220, which (among other things) expressly requires an indictment to describe

the offense charged. Herrington, 781 S.E.2d at 563 & n.3. If the defendant’s offense were

more specific – “MDMA possession,” for example -- surely the Virginia Supreme Court

would not have approved of the generalized “schedule I or II” indictment.

For his part, Petitioner directs our attention to Young v. Commonwealth, a 2008

Virginia Supreme Court case. 659 S.E.2d 308 (Va. 2008). There, a defendant “was indicted

for possession of a Schedule I or Schedule II controlled substance in violation of [Va.]

Code § 18.2-250.” Id. at 309. Though the parties had briefed the court using the phrase

“conviction for possession of morphine,” 3 Virginia’s highest court nonetheless used the

more generic phrasing in describing and evaluating the conviction. Id. (“The defendant

was indicted for possession of a Schedule I or Schedule II controlled substance in violation

of Code § 18.2-250.”).

3
See Brief of Appellant, Young v. Commonwealth, 659 S.E.2d. 308 (Va. 2008) (No.
071436), 2007 WL 5323167, at *13; Brief for the Commonwealth, id., 2007 WL 5323168,
at *1 (“ . . . convicted Young of possession of morphine . . .”).
26
 But still other Virginia Supreme Court cases have described a defendant’s controlled

substance possession offense specifically. See, e.g., Burnham v. Commonwealth, 833

S.E.2d 872, 873 (Va. 2019) (“convicted . . . of possession of cocaine”); Perry v.

Commonwealth, 701 S.E.2d 431, 434 (Va. 2010) (“guilty of possession of PCP”). Unlike

Herrington, these cases did not closely evaluate the indictments so the court had less reason

to focus on the precise phrasing and sufficiency of their contents. Because Herrington and

Young do not speak directly to the elements-versus-means issue, and because the Virginia

Supreme Court otherwise refers inconsistently to the state’s simple possession offense, I

cannot say that the state’s highest court “definitively answers” our question. Mathis, 136

S. Ct. at 2256.

2.

a.

Virginia’s lower courts offer some guidance, but still fail to conclusively establish

that controlled substance identity is an element of the offense. The majority leans heavily

on Sierra v. Commonwealth, 722 S.E.2d 656 (Va. Ct. App. 2012). The majority cites Sierra

for its conclusion that “[t]he specific type of substance found in a defendant’s possession

is an actus reus element the Commonwealth must prove pursuant to subparts (a)-(c) of

Code § 18.2-250(A).” Id. at 660. The majority is of the view that this conclusively

establishes that a controlled substance’s identity is an element to be proven. Petitioner,

however, contends that the statement should be read only to mean the type -- i.e. schedule

-- of a controlled substance must be proven “pursuant to” the subparts cited, which break

down punishments by schedule.

27
 In Petitioner’s view, the Sierra court uses the word “type” to refer to controlled

substance schedules. The Sierra court explained, “[t]he only differentiation in the statute

between various types of controlled substances appears in later subparts, which prescribe

different classifications of the level of offense based on the type of controlled substance a

defendant actually possesses.” 722 S.E.2d at 659 (emphasis supplied). These “later

subparts” do not name specific controlled substances; they refer only to the different

schedules. See Va. Code Ann. § 18.2-250(A)(a)-(c). The court goes on to say, “[b]ased

on what type of controlled substance is actually found in the defendant’s possession, the

legislature has demonstrated its intent to impose different levels of punishment for the

possession of different types of controlled substances.” Sierra, 722 S.E.2d at 660

(emphasis supplied). But significantly, the court uses a different phrase later, when it says

that a defendant who knows he possesses a controlled substance “bears the risk of incurring

whatever punishment the General Assembly has prescribed for the possession of the

specific substance he has.” Id. (emphasis supplied).

Because the Sierra court used both the phrases “specific substance” and “types of

controlled substances” in its opinion, I cannot conclude that Virginia’s courts have spoken

clearly through Sierra. The Sierra court could have said that “[t]he specific [substance]

found in a defendant’s possession is an actus reus element the Commonwealth must prove

pursuant to subparts (a)-(c) of Code § 18.2-250(A).” Sierra, 722 S.E.2d at 660.

(substitution mine). It did not. Instead, the court used the word “type,” as it did throughout

the opinion to refer to the division of controlled substances along schedule lines for

28
different levels of punishment in “subparts (a)-(c) of Code § 18.2-250(A).” 4 Furthermore,

Sierra is a midlevel appellate decision, not one from the Virginia Supreme Court. As a

result, I cannot conclude controlled substance identity is (or is not) an element on the basis

of this case alone.

b.

The majority also cites to Howard v. Commonwealth, No. 0780-17-1, 2018 WL

2604993 (Va. Ct. App. June 5, 2018). But an unpublished intermediate appellate court

decision could never speak “definitively” on behalf of Virginia state courts. Mathis, 136

S. Ct. at 2256. Unpublished opinions of the Court of Appeals of Virginia have no

precedential value. Va. Code Ann. § 17.1-413; see Sheets v. Castle, 559 S.E.2d 616, 619

(Va. 2002). Not only is Howard meaningless in terms of what we can know about Virginia

state courts’ view of the law, but the majority misreads Howard.

First, the majority opinion states, “[t]he Howard court, quoting its opinion in Sierra,

reiterated that ‘the actual substance in a defendant’s possession is an actus reus element.’”

Ante at 11 (quoting Howard, No. 0780-17-1, 2018 WL 260499, at *4 (emphasis supplied)).

But this quote from Howard significantly misstates Sierra. As discussed above, Sierra

says “[t]he specific type of substance found in a defendant’s possession is an actus reus

element.” Sierra, 722 S.E.2d at 778 (emphasis supplied). Sierra does not say “the actual

4
Like the Herrington and Young courts, the Sierra court read the relevant
defendant’s record generically, as conviction for “possession of a controlled substance, in
violation of Code § 18.2-250.” Sierra v. Commonwealth, 722 S.E.2d, 656, 657 (Va. Ct.
App. 2012). The Sierra court used this framing of the offense despite the indictment having
named the precise controlled substance in question. Id. at 657.
29
substance” is the element, so Howard cannot be “reiterat[ing]” what Sierra said on that

point. Ante at 11.

Second, the majority opines that we should take Howard’s description of the “unit

of prosecution” to mean that a specific controlled substance’s identity must be proven.

Ante at 11. But Howard itself and double jeopardy principles are at odds with that

conclusion. Another Virginia court decision -- this one published -- provides an analogy

to help make this clear.

In Fullwood v. Commonwealth, a defendant argued that his multiple convictions

pursuant to Virginia’s controlled substance distribution statute “violate[d] double jeopardy

principles by punishing the same conduct twice,” where he possessed two controlled

substances simultaneously. 676 S.E.2d 348, 351 (Va. Ct. App. 2009). But the Fullwood

court believed the Virginia Supreme Court had “rejected this approach” in an analogous

setting. Id. In a case where nine obscene magazines were purchased in two transactions,

the Virginia Supreme Court had rejected a double jeopardy challenge by explaining, “[t]he

gravamen of the offense is the sale of a single obscene item,” because “the statutory

language shows an unmistakable legislative intent that the sale of each obscene magazine

shall constitute a separate offense.” Educ. Books, Inc. v. Commonwealth, 323 S.E.2d 84,

86 (Va. 1984).

Here, as the Howard court notes, Virginia’s legislature selected language, “a” and

“any” controlled substance, which reflects an “intent to convict and punish separately for

the possession of each controlled substance” the defendant possessed. Howard, No. 0780-

17-1, 2018 WL 2604993, at *3. So as in Fullwood, it makes sense that “possession of each

30
illegal substance amount[s] to a separate violation of the statute.” 676 S.E.2d at 351. But

this does not lead to the conclusion that the identity of each substance is what needs to be

proven. Instead, what matters is the number -- not the identity -- of the prohibited items

involved. See Educ. Books, 323 S.E.2d at 86 (affirming nine convictions because each of

defendant’s nine magazines could support a charge such that there “were nine separate

offenses”).

If an individual was found to possess two substances, Substance 1 (being scheduled

Drug A) and Substance 2 (being either scheduled Drug B or C), a factfinder could be

convinced beyond a reasonable doubt that a defendant possessed more than one controlled

substance pursuant to state law and therefore be found to have violated the statute twice.

But there is no Virginia authority that requires the precise identity of Substance 2 to be

proven beyond a reasonable doubt for this to be true. As long as the factfinder was sure

Substance 2 was a scheduled controlled substance other than Drug A, two convictions

could be possible even if the factfinder was not convinced beyond a reasonable doubt that

Substance 2 was definitively Drug B or definitively Drug C. C.f. Mathis, 136 S.Ct. at 2249

(“A jury could convict even if some jurors concluded that the defendant [possessed Drug

B], while others concluded he [possessed Drug C], so long as all agreed that the defendant

[possessed a controlled substance].” (internal quotation marks omitted) (substitutions

mine)). In other words, the factfinder must be convinced that the defendant possessed more

than one controlled substance, but not necessarily convinced which exact controlled

substance Substance 2 was. Controlled substance identity here is only important insofar

as the prosecution must prove Substance 2 is not simply more of Substance 1.

31
 3.

This analysis has important implications in the categorical approach context: If we

assume Drug C is not federally criminalized, we could not be certain that the second

controlled substance possession conviction was a match for the federal offense, even

though a double jeopardy problem might have been avoided and the prosecution was

required to prove the defendant possessed more than one controlled substance.

Though it would make our job easier, Virginia state courts simply have not spoken

clearly on this question. As explained above, proving two violations of Virginia law might

not necessarily require a second substance’s precise identity to be proven beyond a

reasonable doubt. Second, even if we are not convinced by this analysis, all we have in

Virginia to say that two controlled substances possessed together would in fact support two

convictions pursuant to Virginia Code section 18.2-250 is the unpublished Howard case,

which has no precedential value. See Va. Code Ann. § 17.1-413. The most we can

legitimately glean from Howard is that possession of more than one controlled substance

might support multiple convictions in Virginia. Nothing more.

The other Virginia appellate court decisions relied on by the majority as providing

“a similar focus” are similarly hazy. Ante at 12. The fact that a prosecution must establish

“the existence of a proscribed substance,” Hinton v. Commonwealth, 421 S.E.2d 35, 37

(Va. Ct. App. 1992), does not mean that the identity rather than simply the proscribed

nature of the substance must be proven. Put another way, requiring proof that a substance

is scheduled does not mean that we need further proof as between controlled substances on

the same schedule.

32
 The majority attempts to bolster its opinion by asserting that discussions in Virginia

appellate cases defining acceptable types of circumstantial evidence “would be

unwarranted if Virginia law were satisfied merely with proof that the substance, whatever

it was, was prohibited.” See, e.g., Ante at 13 (quoting Hill v. Commonwealth, 379 S.E.2d

134, 136 (Va. Ct. App. 1989) (“Users and addicts, if they have gained familiarity or

experience with a drug, may identify it.”)). But Virginia’s basic rules on the types of

evidence used to “establish [ ] the existence of a proscribed substance” tell us nothing about

whether controlled substance identity necessarily must be proven to support a conviction.

Ante at 12 (emphasis supplied) (quoting Hinton, 421 S.E.2d at 37). To further tease out

the hypothetical, in order to prove that Substance 2 was a controlled substance, we would

look for evidence to indicate that it was either Drug B or C, and the type of circumstantial

evidence the majority references could be used. But we do not know that a conviction

would not stand if the circumstantial evidence convinced some individuals on a jury that it

was Drug B and others that it was Drug C, as long as both controlled substances were

scheduled for the same penalties. See Mathis, 136 S.Ct. at 2249. Thus, at core, the majority

analysis deviates from Mathis’s simple command to determine whether the state’s courts

speak clearly on the elements-versus-means question. Id. at 2256. On the whole, I cannot

agree with the majority that Virginia case law “definitively answers” our elements-versus-

means question, because it doesn’t. Id. 5

5
The majority opinion concludes its analysis of Virginia court decisions with
reference to several other states’ controlled substance laws, though it remarks that
“[b]ecause . . . the Virginia courts’ construction of Section 18.2-250 [is] controlling, a close

33
 4.

The majority also points to state model jury instructions as support for its position,

and indeed, in certain categorical approach cases, we have considered them. See, e.g.,

Omargharib v. Holder, 775 F.3d 192, 199 (4th Cir. 2014). However, these instances

predate Mathis, which sets out a clear three-step test: (1) state court decisions; (2) the

statute on its face; and (3) record of conviction. This test does not leave room to entertain

debate about how to interpret Virginia’s model jury instructions. See Harbin v. Sessions,

860 F.3d 58, 67 (2d Cir. 2017) (indicating that, post-Mathis, we should consider jury

instructions only “to the extent they appear in the record of the prior conviction” (internal

quotation marks omitted)). Moreover, on a practical note, here Petitioner had a bench trial,

so there are no actual jury instructions in the record for us to consider. In the end, then,

model jury instructions have no place in this analysis.

B.

Mathis step two: Virginia statute’s face

Given that Virginia state court decisions do not speak plainly on the elements-

versus-means question, we turn next to the state statute, which, “on its face may resolve

examination of those cases is unnecessary.” Ante at 13 n.5. Not only is examination of
other states’ drug laws unnecessary, it is inappropriate. The first prong of the Mathis
analysis asks us to determine whether Virginia precedent “definitively answers the
[elements-versus-means] question.” Mathis, 136 S. Ct. at 2256. I fail to see how decisions
of other circuits, applying other states’ precedent to other states’ laws, supports the
majority’s conclusion under Mathis, especially given that there are circuits going both
ways. That different circuits reached opposing conclusions on the divisibility of similar
language comes as no surprise. Each case’s divisibility question should be answered by
the law of the specific state at issue. Virginia alone is the relevant state source here.
34
the issue.” Mathis, 136 S. Ct. at 2256. Two principles guide this analysis. First, “[i]f

statutory alternatives carry different punishments, then . . . they must be elements.” Id.

Second, “if a statutory list is drafted to offer ‘illustrative examples,’ then it only includes a

crime’s means of commission.” Id. (citation omitted).

Following these principles as applied to the case at hand, if different punishments

were allocated to different specific controlled substances, we could conclude that the

controlled substance’s exact identity is an element that must be proven to support a

particular controlled substance offense conviction. See Mathis, 136 S. Ct. at 2249

(explaining that a divisible structure lets a court ascertain “what crime, with what elements,

a defendant was convicted of”). But here, Virginia’s law divides punishment by schedule

not by controlled substance, and all the statutory alternatives (controlled substances) within

each schedule carry the same punishment. See Va. Code Ann. § 18.2-250(A). Petitioner

asserts that the element to be proven is the schedule to which a controlled substance

belongs. The “controlled substance” element pursuant to Virginia Code section 18.2-250

would be satisfied by proving a defendant possessed either a controlled substance on

Schedule I or II (section 18.2-250(A)(a)), Schedule III (section 18.2-250(A)(b)), Schedule

IV (section 18.2-250(A)(b1)), Schedule V (section 18.2-250(A)(b2)), or Schedule VI

(section 18.2-250(A)(c)). This understanding is consistent with the Virginia courts’

language describing individual offenses as “possession of a Schedule I or II controlled

substance” and with Mathis’s assertion that separate elements (here, schedules) create

separate offenses.

35
 Mathis also instructs that a nonexhaustive list of alternatives given as “examples”

cannot be elements. Mathis, 136 S. Ct. at 2256. But Mathis does not support the converse:

that an exhaustive list necessarily contains elements. Virginia’s controlled substance

schedules each contain a complete list of the controlled substances belonging to that

schedule. See Va. Code Ann. §§ 54.1-3446 – 54.1-3455. Still, we cannot take Mathis’s

statement to mean more than what it says. Mathis says only that a nonexhaustive list will

not contain elements, which in this case has little bearing. Thus, the face of Virginia’s

statute does not establish that controlled substance identity is an element of the state’s drug

possession offense.

C.

Mathis step three: “Peek” at record of conviction

Where “state law fails to provide clear answers” and the state statute is not clear on

its face, we are to move to step three and look to the record of the prior conviction. Mathis,

136 S.Ct. at 2256. We are to “peek” at the record “for the sole and limited purpose” of

seeing how the statute’s listed alternatives appear in the record of conviction. Id. (internal

quotation marks omitted).

In doing so, we must first identify precisely which documents should be considered

to be the record of conviction. In this case, we have been provided a wide array of

documents from which to choose: (a) two indictments (original and amended); (b)

certificate of analysis offered at trial; (c) transcript of the trial court’s oral findings; (d)

conviction order; and (e) sentencing order. We can ignore the court’s oral findings, as a

Virginia trial court “speaks only through its written orders.” Hill v. Hill, 318 S.E.2d 292,

36
297 (Va. 1984) (citations omitted). Of the remaining documents, all but the certificate of

analysis are Shepard documents -- being indictments, rulings of law and findings of fact,

or “some comparable judicial record of this information.” Shepard, 544 U.S. at 26.

Per Mathis, a record of conviction “could indicate, by referencing one alternative

term to the exclusion of all others, that the statute contains a list of elements, each one of

which goes toward a separate crime.” Mathis, 136 S. Ct. at 2257. Confusion abounds here.

The original indictment does name a specific schedule I or II controlled substance:

MDMA, chemically defined as 3,4-methylenedioxymethamphetamine. The amended

indictment displays a specific substance name, though it appears to actually name two

different substances, and both different than the substance listed in the original indictment

-- 3,4 methylenedioxyethcathinone (a scheduled substance known as ethylone) and

ethylene (an unscheduled substance). As for the court’s conviction order, it also names the

unscheduled (albeit specific) substance, ethylene. The conviction order recites the offenses

charged in the original and amended indictments as “Possession of MDMA” and

“Possession of Ethylene,” respectively. A.R. 263. According to the conviction order, the

court “f[ou]nd the defendant GUILTY of Possession of Ethylene as charged in Count One

of the indictment as amended.” Id. at 264. Petitioner’s sentencing order compounds the

confusion. It lists Petitioner’s offense as felony “possession of MDMA.” Id. at 265.

Further, the court’s statements from the bench, particularly the final oral

pronouncement finding Petitioner “guilty of possession of MDMA or whatever it is [he]

had,” does little to engender confidence that the conviction rested on certainty of the

controlled substance’s identity beyond a reasonable doubt. A.R. 308 (emphasis supplied).

37
 Because all documents in the record of conviction name a specific substance, the

Government would like us to conclude that controlled substance identity is therefore an

element of the Virginia offense. But Mathis counsels that the terms in question might be

elements if the records “referenc[e] one alternative term to the exclusion of all others.”

Mathis, 136 S. Ct. at 2257. Here, Petitioner’s record names at least two of the statute’s

alternative terms (MDMA and ethylone) and a third substance (ethylene) that is not even

scheduled in Virginia. From these materials, I cannot say with any certainty that the judge

in Petitioner’s bench trial found him guilty of possessing a specific scheduled controlled

substance beyond a reasonable doubt. But certainty is what is required. Shepard, 544 U.S.

at 21–22 (explaining, the “demand for certainty” is “closer” to being met “when . . . the

records of the prior convictions used . . . are in each instance free from any inconsistent,

competing evidence on the pivotal issue of fact”). Mathis makes this clear when setting

out the final part of its elements-versus-means test: “record materials will not in every case

speak plainly, and if they do not, a [reviewing] judge will not be able to satisfy ‘[our

precedent’s] demand for certainty’ when determining whether a defendant was convicted

of a generic offense.” Mathis, 136 S. Ct. at 2257 (quoting Shepard, 544 U.S. at 21).

The Government and the majority urge us to ignore the reference to “ethylene” in

the operative indictment and conviction order as “scrivener’s error,” but this error managed

to identify a completely different chemical compound. With some luck, such an error may

have no effect, but where a different compound is identified and stands uncorrected, an

immigration court might attach federal consequences to the identity of that controlled

substance. What, for example, if a petitioner’s conviction involving a nonfederally

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scheduled controlled substance were switched to a federally scheduled one? The defendant

would have “no incentive” to notice or challenge the error as long as both controlled

substances were scheduled similarly in Virginia law so the punishments were the same.

Mathis, 136 S. Ct. at 2252. 6 But “[s]uch inaccuracies should not come back to haunt the

defendant many years down the road by triggering a [serious immigration consequence].”

Id.

D.

Given the multitude of uncertainties in this record, Mathis’s test cannot support the

conclusion that controlled substance identity is an element of Virginia’s statute. Having

evaluated state precedent, the face of the statute, and Petitioner’s record of conviction, it is

clear to me that the statute cannot be divided based on controlled substance.

First, as for state law, though possession of different controlled substances may

constitute multiple violations of Virginia’s statute, there is nothing to indicate that specific

controlled substance identity must be proven beyond a reasonable doubt in order to support

a single charge. If anything, the limited state precedent suggests that the relevant offense

has been defined as “possession of schedule I or II controlled substance,” rather than

6
The majority’s note on this point again misapprehends the problem before us. The
majority opinion dismisses the Supreme Court’s concern in Mathis by saying, “if Bah had
been convicted of possessing ethylene, which is not illegal in Virginia, he would have had
a powerful incentive to challenge his conviction, as he would have committed no crime.”
Id. Ante at 14–15 n.6. Indeed. But I do not take Petitioner to argue that he was convicted
“of possessing ethylene” but rather of a generic offense of possessing a Schedule I or II
controlled substance. As between Virginia scheduled substances MDMA and ethylone,
Petitioner or any other defendant would have had no reason to dispute the substance’s
precise identity if the law is indivisible.
39
possession of a specific controlled substance of a proven identity. Second, the statute’s

face is not determinative. Rather, the breakdown of punishments by schedule (not by

individual controlled substance) suggests that a controlled substance’s schedule is the

element to be proven. Finally, Petitioner’s record of conviction does not conclusively

demonstrate that controlled substance identity is an element of the offense. Inconsistent

references to the statute’s alternatives in Petitioner’s conviction records make it impossible

to conclude that the controlled substance’s identity was necessarily proven beyond a

reasonable doubt.

At core, the garbled record here underscores the very problems the categorical

approach was designed to avoid. See Descamps, 570 US at 270 (explaining why reliance

on the underlying facts beyond the elements proven is risky, given the lack of incentive to

challenge those facts even if they are “downright wrong”). As the majority in Mathis

explains, the elements-focused test “avoids unfairness to defendants.” Mathis, 136 S. Ct.

at 2252. “Statements of ‘non-elemental fact’ in the records of prior convictions are prone

to error precisely because their proof is unnecessary.” Id. (quoting Descamps, 570 U.S. at

270). Here, the trial court records repeatedly inconsistently and incorrectly refer to the

controlled substance in possession, without objection from either the prosecutor or

defendant. As the Mathis Court explains, “a defendant may have no incentive to contest

what does not matter under the law.” Id. “When that is true, a prosecutor’s or judge’s

mistake as to means, reflected in the record, is likely to go uncorrected.” Id.

As a result, in my view, the statute at issue here is indivisible for federal purposes.

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 II.

The Modified Categorical Approach

Contrary to the appropriate legal analysis outlined above, the majority has instead

decided the Virginia statute is divisible as to specific controlled substance identity. The

majority also concludes that the BIA correctly considered only documents in the “record

of conviction” in its modified categorical analysis. Even if the majority is correct that the

Virginia statute is divisible, and even if the majority is further correct that the BIA did not

look beyond the appropriate records, no application of the modified categorical approach

can overcome the ambiguity in Petitioner’s record of conviction. And controlling Supreme

Court precedent compels the conclusion that the BIA erred by improperly determining that

Petitioner is removable based on his ambiguous record of conviction.

Here, to apply the modified categorical approach, we ask whether Petitioner’s

record of conviction can support removability. The equivalent question was resolved in

Moncrieffe v. Holder, an immigration case in which the Supreme Court applied the

categorical approach to a conviction for marijuana possession. 569 U.S. 184, 187 (2012).

The Court answered our question by holding that removal cannot be supported where even

consulting a person’s record leaves “ambiguity” as to whether “the conviction . . .

‘necessarily’ involve[d] facts that correspond to an offense punishable” federally. Id. at

194–95.

In this case, as detailed above, Petitioner’s Shepard documents are undeniably

ambiguous. The operative indictment appears to list two substances (3,4-

methylenedioxyethcathinone and ethylene), the conviction order lists ethylene, and the

41
sentencing order lists MDMA. (The non-Shepard materials do nothing to help: the court’s

finding at trial was that Petitioner was guilty of “possession of MDMA or whatever it is

[he] had.” A.R. 308.) Given this record, I cannot say with any certainty what offense and

which controlled substance element was the basis of Petitioner’s conviction (and neither

could the BIA). See Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013) (indicating that

the Department of Homeland Security bears the burden of establishing removability by

clear and convincing evidence). Therefore, it is impossible to determine that his crime of

conviction necessarily involved elements that are a categorical match to a federal offense

“relating to a controlled substance” as defined in federal law. 8 U.S.C. § 1227(2)(B)(i).

Where this is the case, Petitioner’s offense cannot support removability pursuant to the

INA, and therefore his petition for review should be granted and the BIA’s decision to the

contrary should be reversed.

From my perspective, the majority’s determination otherwise is in error and I must

respectfully dissent.

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APPENDICES –

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CATEGORICAL APPROACH FLOWCHART (application to Bah)
* Bold emphasis denoting correct path

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