FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ROMERO-MILLAN, No. 16-73915
Petitioner,
Agency No.
v. A077-138-666
WILLIAM P. BARR, Attorney
General,
Respondent.
ERNESTO HERNANDEZ No. 17-72893
CABANILLAS,
Petitioner, Agency No.
A095-285-170
v.
WILLIAM P. BARR, Attorney
General,
Respondent.
2 ROMERO-MILLAN V. BARR
MARCO ANTONIO GARCIA- No. 18-71555
PAZ, AKA Garcia Marco A,
AKA Garcia Marco Antonio, Agency No.
AKA Marco Antonia Garcia, A034-063-749
AKA Marco Antonio Garcia,
Petitioner,
ORDER CERTIFYING
v. QUESTIONS TO
ARIZONA SUPREME
WILLIAM P. BARR, Attorney COURT
General,
Respondent.
Filed May 4, 2020
Before: Richard R. Clifton, John B. Owens,
and Mark J. Bennett, Circuit Judges.
Order
ROMERO-MILLAN V. BARR 3
SUMMARY*
Certified Questions to State Court / Immigration
The panel certified the following questions of state law to
the Arizona Supreme Court:
1. Is Arizona’s possession of drug
paraphernalia statute, A.R.S. § 13-3415,
divisible as to drug type?
2. Is Arizona’s drug possession statute,
A.R.S. § 13-3408, divisible as to drug
type?
3. Put another way, is jury unanimity (or
concurrence) required as to which drug or
drugs listed in A.R.S. § 13-3401(6), (19),
(20), or (23) was involved in an offense
under either statute?
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ROMERO-MILLAN V. BARR
ORDER
The issues for decision in these cases are whether
Arizona’s possession of drug paraphernalia statute (A.R.S.
§ 13-3415) and Arizona’s drug possession statute (A.R.S.
§ 13-3408) are divisible as to drug type. Resolving these
questions will determine the outcome of the pending cases.
As such, we respectfully request that the Arizona Supreme
Court determine whether, under Arizona law, A.R.S. § 13-
3415 and § 13-3408 are divisible as to drug type.
I. Factual and Procedural Background
A. Romero-Millan
Jorge Romero-Millan, pursuant to a plea agreement, was
convicted of possessing or using drug paraphernalia in
violation of A.R.S. § 13-3415. Administrative Record (AR)
227–29. While serving his sentence, the Department of
Homeland Security (DHS) served Romero-Millan with a
Notice to Appear, charging him with removability under
8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the
United States without admission or parole, and
§ 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled
substance offense. AR 248–50. At the original removal
hearing, Romero-Millan conceded both charges of removal,
AR 70, but later withdrew his concession on the second
charge of removability following the Supreme Court’s
decision in Mellouli v. Lynch, 575 U.S. 798 (2015).
AR 78–81. This second charge, for removability as an alien
convicted of a controlled substance offense, served as the
basis for finding Romero-Millan statutorily ineligible for
adjustment of status. AR 56, 250. If A.R.S. § 13-3415 is
ROMERO-MILLAN V. BARR 5
divisible he will remain ineligible and the DHS will likely be
permitted to permanently remove him from the United States.
B. Hernandez Cabanillas and Garcia-Paz
Ernesto Hernandez Cabanillas, a native and citizen of
Mexico who has lawfully resided in the United States since
2004, was convicted pursuant to a plea agreement of
possessing a narcotic drug for sale in violation of A.R.S.
§ 13-3408(A)(2). AR 233–35; 262. The DHS now seeks to
remove him as a result of this crime. Marco Antonio Garcia-
Paz, a native and citizen of Mexico who has lawfully resided
in the United States since 1973, was convicted of the same
crime in 2014, and the DHS now seeks to remove him.
AR 116, 1536–37. For both individuals, the question of the
statute’s divisibility is of great consequence. If it is divisible
as to drug type, then the DHS is likely permitted to
permanently remove them from the United States. If it is not
divisible, the DHS is not so permitted.
II. Governing Federal Law
At issue in these cases is whether the two Arizona statutes
are divisible as to drug type. We thus provide a brief
background as to the relevant federal inquiry.
For an alien to be removed under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), the government must show that the
alien’s state law conviction is related to a controlled
substance under federal law. In Mellouli v. Lynch, the
Supreme Court clarified that to demonstrate that an offense
is related to a controlled substance, “the Government must
connect an element of the alien’s conviction to a drug defined
in [21 U.S.C. § 802].” 575 U.S. 798, 135 S. Ct. 1980, 1991
6 ROMERO-MILLAN V. BARR
(2015) (internal quotation omitted). The Supreme Court has
created a three-step process for determining whether this
connection exists. See Descamps v. United States, 570 U.S.
254, 260–63 (2013); Taylor v. United States, 495 U.S. 575,
602 (1990).
“At the first step, we employ ‘the categorical approach,
[in which] we examine only the statutory definition of the
crime to determine whether the state statute of conviction
renders an alien removable under the statute of removal,
without looking to the actual conduct underlying the
petitioner’s offense.’” Villavicencio v. Sessions, 904 F.3d
658, 664 (9th Cir. 2018) (alteration in original) (quoting
Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014)). “[I]f
the categorical approach reveals that the elements of the state
. . . crime are broader than the elements of the federal offense,
then the state crime is not a categorical match.” Id.
If the statute is not a “categorical” match the court must
move on to determine whether the statute is “divisible,”
namely whether it “sets out one or more elements of the
offense in the alternative” as opposed to listing alternative
methods of committing the crime. Descamps, 570 U.S.
at 257; see also Mathis v. United States, 136 S. Ct. 2243,
2249 (2016). A state statute contains alternative “elements”
and not merely alternative “means” if a jury has to
“unanimously agree that [the defendant] committed a
particular substantive offense contained within the
disjunctively worded statute.” Rendon v. Holder, 764 F.3d
1077, 1086 (9th Cir. 2014) (emphasis added). In order to
determine whether a statute lays out alternative elements, “a
court looks first to the statute itself and then to the case law
interpreting it.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th
Cir. 2017).
ROMERO-MILLAN V. BARR 7
If the statute is not divisible, the analysis stops, as the
alien’s state law conviction cannot be found to be related to
a controlled substance under federal law. However, if the
statute is divisible, the court proceeds to the third step and
applies the “modified categorical approach.” Under this
approach, courts may “consult a limited class of documents
. . . to determine which alternative formed the basis of the
defendant’s prior conviction.” Descamps, 570 U.S. at 257.
“These documents include ‘the charging document, the terms
of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was
confirmed by the defendant, or . . . some comparable judicial
record of this information.’” United States v. Marcia-Acosta,
780 F.3d 1244, 1250 (9th Cir. 2015) (quoting Shepard v.
United States, 544 U.S. 13, 26 (2005)). If, using the modified
categorical approach, the court determines that the state law
is related to a controlled substance under federal law, the
alien is removable.
These cases turn on the second step of the analysis,
namely whether A.R.S. § 13-3415 and § 13-3408 are divisible
as to drug type.1 This issue comes up rarely in state criminal
cases because of how infrequently it is disputed. Ordinarily,
there is evidence that the substance involved was a particular
narcotic drug. While a defendant might dispute that the
substance involved was a narcotic drug, the defendant is
unlikely to claim that the substance was in fact a different
1
There is no categorical match between the federal crime and the
Arizona crimes because of a minor but critical difference in the types of
drugs each statute prohibits. The Arizona statute lists benzylfentanyl and
thenylfentanyl as prohibited narcotic drugs, A.R.S. § 13-3401(20)(n) &
(mmmm), while the federal statute does not. See 21 U.S.C. § 812;
21 C.F.R. §§ 1308.11–15.
8 ROMERO-MILLAN V. BARR
narcotic drug, and the jury will not be asked to decide which
drug it was. Examples are rare in which the prosecutor claims
a defendant possessed heroin, and the defendant counters by
arguing that he instead possessed cocaine.
The question, therefore, is not a factual one—whether, in
most cases, a jury will tend to agree on the underlying drug
a defendant possessed—but a legal one—whether a jury must
agree, as a matter of law, on what drug the defendant
possessed. We find it difficult to determine the answers from
existing Arizona case law.
III. Parties’ Arguments
A. A.R.S. § 13-3415
Petitioner, Romero-Millan, argues that the specific drug
underlying a violation of A.R.S. § 13-3415 is not an element
of the crime, and therefore the statute is not divisible. He
argues, among other things, that the plain language of the
statute demonstrates that a jury need not agree on which drug
was involved in the violation, but simply that “a drug” on the
relevant list of drugs was involved. In doing so, petitioner
points to cases such as State v. Lodge, No. 2 CA-CR 2014-
0110, 2015 WL 164070, at *6 (Ariz. Ct. App. Jan. 14, 2015)
(holding that a jury need not conclude which drug was
involved but rather that “[a]ll that is required is that the state
establish some use in violation of § 13-3415(A)”), and State
v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2
(Ariz. Ct. App. Feb. 16, 2016) (concluding that Arizona’s
possession of a dangerous drug statute, A.R.S. § 13-3407, is
not divisible as to drug type).
ROMERO-MILLAN V. BARR 9
The government argues that the specific drug underlying
a violation of A.R.S. § 13-3415 is an element of the crime,
and therefore that the statute is divisible. In making this
argument, it points to, among other things, Arizona state law
sentencing guidelines, A.R.S. § 13-901.01(A) & (H)(4),
pattern jury instructions, and case law. See, e.g., State v.
Martinez, No. 2 CA-CR 2016-0039, 2017 WL 4403141 (Ariz.
Ct. App. Oct. 3, 2017) (upholding a conviction for two counts
of possession of drug paraphernalia for a single scale with
remnants of two drugs found on it).
B. A.R.S. § 13-3408
Petitioners, Cabanillas and Garcia-Paz, argue, among
other things, that the text of the statute, as well as Arizona
cases interpreting it and the pattern jury instructions, indicate
that the jury need not agree which narcotic drug was present.
See, e.g., Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656,
at *1 (“[U]nder the language of [A.R.S. § 13-3407], the State
is only required to prove a defendant knowingly sold and
possessed a dangerous drug.”); State v. Castorina, No. 1 CA-
CR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June
17, 2010) (“[I]t is sufficient for the state to show that
defendant knew he possessed a narcotic or dangerous drug;
neither our statutes nor case law require the state to prove that
defendant knew which particular drug defined under our laws
as a ‘dangerous’ drug or ‘narcotic’ drug he knew he
possessed.”).
The government contends, among other things, that
Arizona appeals courts have permitted multiple convictions
under A.R.S. § 13-3408 for possession of multiple narcotic
drugs. See, e.g., State v. Padilla, 176 Ariz. 81, 82, 85–86, 859
P.2d 191, 192, 196–96 (Ct. App. 1993); State v.
10 ROMERO-MILLAN V. BARR
Lautzenheiser, 17 Ariz. App. 531, 531, 498 P.2d 605, 605
(Ct. App. 1972). Because of this, the government argues, each
drug type must constitute a separate crime under A.R.S. § 13-
3408.
IV. Certified Questions and Further Proceedings
To analyze the divisibility of a state statute, we look to
authoritative sources of state law such as state court decisions
and the wording of the statute in question. See Mathis, 136 S.
Ct. at 2256. Taking this guidance, we certify the following
questions to the Arizona Supreme Court:
1. Is Arizona’s possession of drug paraphernalia statute,
A.R.S. § 13-3415, divisible as to drug type?
2. Is Arizona’s drug possession statute, A.R.S. § 13-
3408, divisible as to drug type?
3. Put another way, is jury unanimity (or concurrence)
required as to which drug or drugs listed in A.R.S. § 13-
3401(6), (19), (20), or (23) was involved in an offense under
either statute?
We respectfully ask the Arizona Supreme Court to
exercise its discretionary authority to accept certification
under A.R.S. § 12-1861. “Our phrasing of the questions
should not restrict the Court’s consideration of the issues
involved. We acknowledge that the Court may reformulate
the relevant state law questions as it perceives them to be, in
light of the contentions of the parties.” Raynor v. United of
Omaha Life Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017)
(internal quotation and alterations omitted) (quoting Toner ex.
ROMERO-MILLAN V. BARR 11
rel. Toner v. Lederle Labs., 779 F.2d 1429, 1433 (9th Cir.
1986)).
We acknowledge that this inquiry in the context of
immigration cases like these is mostly a federal concern, as
it is a product of federal law and impacts cases in federal
court. Nonetheless, we recognize that Arizona has an interest
in this question because of the potential impact on state cases.
For example, if A.R.S. § 13-3408 is divisible as to drug type,
and thus is a predicate offense for immigration removal
purposes, this requires the state to prove, in every case, what
drug type a defendant possessed, and might necessitate a
different result in Castorina and Prescott, the intermediate
appeals court cases that held the state was not required to
prove which drug type a defendant knowingly possessed. See
Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *1;
Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4.
We agree to abide by the decision of the Arizona Supreme
Court. See Doyle v. City of Medford, 565 F.3d 536, 544 (9th
Cir. 2009). If the court decides not to accept certification, we
will resolve these questions following our best understanding
of Arizona law.
The Clerk will file a certified copy of this order with the
Arizona Supreme Court pursuant to Arizona Supreme Court
Rule 27. This appeal is withdrawn from submission and will
be resubmitted following the conclusion of proceedings in the
Arizona Supreme Court. The Clerk is directed to
administratively close this docket, pending further order. We
retain jurisdiction over any further proceedings in this court.
The parties will notify the Clerk within one week after the
Arizona Supreme Court accepts or rejects certification and
again within one week after that court renders an Opinion.
12 ROMERO-MILLAN V. BARR
V. COUNSEL
Counsel for Petitioner Jorge Romero-Millan in Case No.
16-73915:
Gabriel Gomez Leyba
Crossroads Law Group, LLC
3200 N. Central Avenue, Suite 2475
Phoenix, AZ 85012
Phone: 602-377-9292
Counsel for Respondent William P. Barr, Attorney
General, in Case No. 16-73915:
Emily Anne Radford
Nehal H. Kamani
Imran Raza Zaidi
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: 202-305-4241
Counsel for Petitioner Ernesto Hernandez Cabanillas in
Case No. 17-72893:
Roberta Ann Wilson
Law Offices of Monica Sud-Devaraj, PLLC
141 E. Palm Lane, Suite 100
Phoenix, AZ 85004
Phone: 602-234-0782
ROMERO-MILLAN V. BARR 13
Counsel for Respondent William P. Barr, Attorney
General, in Case No. 17-72893:
Emily Anne Radford
David J. Schor
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: 202-305-7190
Counsel for Petitioner Marco Antonio Garcia-Paz in Case
No. 18-71555:
Matthew Harrison Green
Green Evans-Schroeder
130 W. Cushing Street
Tucson, AZ 85701
Phone: 520-882-8852
Counsel for Respondent William P. Barr, Attorney
General, in Case No. 18-71555:
Joseph H. Hunt
Jeffrey R. Leist
Raya Jarawan
Imran Raza Zaidi
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Phone: 202-305-4241
14 ROMERO-MILLAN V. BARR
IT IS SO ORDERED.
/s/Richard R. Clifton
Richard R. Clifton, Circuit Judge