Tellez-Ramirez v. Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OMAR TELLEZ-RAMIREZ, No. 22-1168
Agency No.
Petitioner,
A055-283-335
v. OPINION

MERRICK B. GARLAND, Attorney
General,

Respondent.

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

Argued and Submitted July 12, 2023
Seattle, Washington

Filed November 29, 2023

Before: Susan P. Graber, Ronald M. Gould, and Michelle
T. Friedland, Circuit Judges.

Opinion by Judge Graber
2 TELLEZ-RAMIREZ V. GARLAND

SUMMARY *

Immigration

Denying Omar Tellez-Ramirez’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that Petitioner’s conviction for possessing a controlled
substance with intent to deliver, in violation of Idaho Code
section 37-2732(a)(1)(A), was a drug trafficking aggravated
felony that made him removable.
Observing that the Idaho statute is overbroad as to drug
type, the panel explained that the statute, plus Idaho
precedent and model jury instructions, establish that it is
divisible. Applying the modified categorical approach, the
panel concluded that Petitioner’s conviction record clearly
documents that his conviction involved methamphetamine,
a controlled substance under federal and Idaho law.
The panel next concluded that the required mental state
under federal and Idaho law—knowledge—is the same in all
relevant respects: the defendant either must know what the
substance is (even if the defendant does not know that it is
controlled) or must know that the substance is illegal (even
if the defendant does not know what the substance is).
Petitioner argued that Idaho’s definition of aiding and
abetting is overbroad in that the Idaho definition includes
solicitation, while the federal definition does not. Rejecting
that contention, the panel explained that: 1) the Idaho
definition of principals requires the commission of a

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TELLEZ-RAMIREZ V. GARLAND 3

completed crime (meaning that one who solicited an
uncompleted crime could not be convicted of the crime of
which Petitioner was convicted); 2) the presence of the word
“solicit” in Idaho caselaw does not change the analysis,
which requires a “realistic probability” that the state would
punish conduct outside the generic definition; and 3) both
definitions of accomplice liability require criminal intent to
commit the crime and an act intended to facilitate the crime’s
commission.

COUNSEL

Neal F. Dougherty (argued), Ramirez-Smith Law, Nampa,
Idaho, for Petitioner.
Rebekah Nahas (argued), Civil Division, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner Omar Tellez-Ramirez is a native and citizen of
Mexico. He was admitted to the United States as a lawful
permanent resident in 2002. But in 2019, a jury convicted
him of possessing methamphetamine, a controlled
substance, with intent to deliver, in violation of Idaho Code
section 37-2732(a)(1)(A). The Department of Homeland
Security initiated removal proceedings in 2021, charging
that Petitioner is removable (1) under 8 U.S.C.
4 TELLEZ-RAMIREZ V. GARLAND

§ 1227(a)(2)(A)(iii), for having been convicted of an
aggravated felony related to illicit trafficking in a controlled
substance, and (2) under 8 U.S.C. § 1227(a)(2)(B)(i), for
having been convicted of violating a state law relating to a
controlled substance.
Petitioner filed a motion to terminate proceedings,
asserting that his conviction is neither for an aggravated
felony nor for a crime related to a controlled substance. The
immigration judge disagreed and ordered Petitioner’s
removal. The Board of Immigration Appeals (“BIA”)
dismissed Petitioner’s appeal. It held that Petitioner’s
conviction qualifies as an aggravated felony, falling “under
the ‘drug trafficking crime’ prong of the aggravated felony
definition” found in 8 U.S.C. § 1101(a)(43)(B).
Petitioner timely seeks review of the final order of
removal. He did not apply for any form of relief or
protection, so the sole question before us is whether
Petitioner’s conviction under Idaho law is an aggravated
felony. Reviewing de novo the questions of law presented
here, Valdez v. Garland, 28 F.4th 72, 76–77 (9th Cir. 2022),
we hold that Petitioner’s conviction under Idaho law is an
aggravated felony and, accordingly, we deny the petition.
A. Petitioner’s Conviction Is a Match for Drug Type
Under the Modified Categorical Approach Because
the State Statute Is Divisible by Drug Type.
“[T]he government may order the removal of noncitizens
who have committed crimes classified as ‘aggravated
felonies.’” Alfred v. Garland, 64 F.4th 1025, 1030 (9th Cir.
2023) (en banc) (citations omitted). “[I]llicit trafficking in a
controlled substance” is an aggravated felony under the
Immigration and Nationality Act. 8 U.S.C.
§ 1101(a)(43)(B). To determine whether a state statute
 TELLEZ-RAMIREZ V. GARLAND 5

defining the crime of conviction counts as an aggravated
felony, we first employ the categorical approach. Alfred, 64
F.4th at 1031.
Under the categorical approach, we compare the
elements of the state crime in question to the elements of the
corresponding federal offense. United States v. Vega-Ortiz,
822 F.3d 1031, 1034 (9th Cir. 2016). If the elements in the
state statute are broader than the elements in its federal
counterpart, the conviction does not qualify as an aggravated
felony under the categorical approach. Id. Here, the Idaho
statute is not a categorical match because it prohibits more
substances than its federal counterpart. Compare, e.g., Idaho
Code § 37-2713A(b)(2) (including butyl nitrite), with 21
U.S.C. § 812, and 21 C.F.R. §§ 1308.11–.15 (not including
butyl nitrite). 1 Therefore, we next apply the “modified
categorical approach.” Vega-Ortiz, 822 F.3d at 1034.
The modified categorical approach applies only when
the statute is “divisible.” Rendon v. Holder, 764 F.3d 1077,
1083 (9th Cir. 2014) (citing Descamps v. United States, 570
U.S. 254, 263 (2013)). A statute is divisible when it lists
alternative “elements,” effectively creating separate crimes,
as distinct from listing different means of committing a
single crime. Descamps, 570 U.S. at 264; see United States
v. Linehan, 56 F.4th 693, 700 (9th Cir. 2022) (if a statute
lists only “‘alternative means of committing the same
crime,’ it is not divisible” (quoting Almanza-Arenas v.

1
We compare state and federal law on the date of conviction, not on the
date of removal proceedings. Mediana-Rodriguez v. Barr, 979 F.3d 738,
749 (9th Cir. 2020). We have not yet decided whether the comparison
should be made as of the time of arrest, the time of conviction, or the
time of the underlying conduct. Id. at 747 n.5. We need not address that
question here because Idaho law criminalized more drugs than federal
law at all of those times.
6 TELLEZ-RAMIREZ V. GARLAND

Lynch, 815 F.3d 469, 478 (9th Cir. 2016) (en banc))), cert.
denied, No. 23-5076, 2023 WL 6378674 (U.S. Oct. 2, 2023).
“‘Elements’ are the ‘constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain
a conviction.’” Mathis v. United States, 579 U.S. 500, 504
(2016) (quoting Black’s Law Dictionary 634 (10th ed.
2014)). If the alternatives are elements, we can review a
limited set of documents in the record to find the applicable
alternative that was the crime of conviction and then
compare that alternative to the generic federal crime. Id. at
517.
Idaho Code section 37-2732 provides in relevant part:

(a) Except as authorized by this chapter, it is
unlawful for any person to manufacture or
deliver, or possess with intent to manufacture or
deliver, a controlled substance.
(1) Any person who violates this subsection
with respect to:
(A) A controlled substance classified in
schedule I which is a narcotic drug or a
controlled substance classified in
schedule II, except as provided for
in section 37-2732B(a)(3), Idaho Code, is
guilty of a felony and upon conviction
may be imprisoned for a term of years not
to exceed life imprisonment, or fined not
more than twenty-five thousand dollars
($25,000), or both;
(B) Any other controlled substance which
is a nonnarcotic drug classified in
schedule I, or a controlled substance
 TELLEZ-RAMIREZ V. GARLAND 7

classified in schedule III, is guilty of a
felony and upon conviction may be
imprisoned for not more than five (5)
years, fined not more than fifteen
thousand dollars ($15,000), or both;
(C) A substance classified in schedule IV
is guilty of a felony and upon conviction
may be imprisoned for not more than
three (3) years, fined not more than ten
thousand dollars ($10,000), or both;
(D) A substance classified in schedules V
and VI is guilty of a misdemeanor and
upon conviction may be imprisoned for
not more than one (1) year, fined not
more than five thousand dollars ($5,000),
or both.

Idaho Code § 37-2732(a)(1)(A)-(D). Petitioner argues that
under Idaho Code section 37-2732(a)(1)(A)—his crime of
conviction—the different drug types are merely means of
committing a single crime, so the statute is not divisible by
the identity of the controlled substance and the modified
categorical approach does not apply. We reject his
contention.
As an initial matter, Petitioner argues that we may
examine only the subsection under which he was convicted,
in isolation, to determine whether statutory alternatives carry
different punishments; he notes that all crimes in that
subsection, subsection (a)(1)(A), are subject to the same
punishment. That focus is too narrow. We can examine all
subsections in the same statute to analyze the divisibility
question, even when the petitioner stands convicted under
8 TELLEZ-RAMIREZ V. GARLAND

only one subsection. See Lopez-Marroquin v. Garland, 9
F.4th 1067, 1072 (9th Cir. 2021) (examining subsections (b)
and (d) of California Vehicle Code section 10851 to
determine whether the petitioner’s offense was a “means” of
committing a single offense of vehicle theft under section
10851(a)).
We begin with the text of the statute. On its face, the
statute supports the conclusion that it is divisible by type of
drug. “If statutory alternatives carry different
punishments, . . . they must be elements.” Mathis, 579 U.S.
at 518 (citing Apprendi v. New Jersey, 530 U.S. 466, 490
(2000)). Each of the subsections of Idaho Code section 37-
2732(a)(1) imposes a different term of imprisonment
depending on where the substance falls within the Idaho
drug schedules. The identity of the drug, in turn, governs the
schedule on which the drug is placed. For example, because
Idaho classifies methamphetamine as a Schedule II drug,
Idaho Code § 37-2707(d)(3), a conviction for possession
with intent to deliver carries a maximum term of
imprisonment for life, id. § 37-2732(a)(1)(A). By
comparison, buprenorphine—a drug used for recovery from
heroin addiction—is listed under Schedule III, id. § 37-
2709(e)(2)(i), and thus a conviction for possession with
intent to deliver it carries a maximum term of imprisonment
of five years, id. § 37-2732(a)(1)(B). The statute is divisible
as to the identity of the controlled substance because, just as
we held with respect to a similar crime under California law,
the Idaho statute “identifies a number of controlled
substances by referencing various [Idaho] drug schedules
. . . and criminalizes the possession of any one of those
substances[,] . . . creat[ing] several different . . . crimes.”
Coronado v. Holder, 759 F.3d 977, 984–85 (9th Cir. 2014)
 TELLEZ-RAMIREZ V. GARLAND 9

(third ellipsis in original) (citations and internal quotation
marks omitted).
Decisions of the Idaho Supreme Court support our
conclusion that the statute is divisible as to drug type. See
Mathis, 579 U.S. at 517–18 (holding that state-court
decisions may inform the question of divisibility). In State
v. Tucker, 953 P.2d 614 (Idaho 1998), the Idaho Supreme
Court held that “the jury had to find that Tucker possessed
methamphetamine to convict Tucker of the crime charged.”
Id. at 617 (emphasis added). And in State v. Blake, 985 P.2d
117 (Idaho 1999), the court held: “To establish Blake’s
guilt, the State must prove that Blake knowingly possessed
methamphetamine and knowingly possessed cocaine.” Id. at
122 (emphasis added). Notably, those two substances are
covered by the same subsection of the statute. Accordingly,
even if we were limited to looking at subsection (a)(1)(A),
Petitioner’s argument fails.
Idaho’s model jury instructions also support the
conclusion that the statute is divisible by type of drug. See
Romero-Millan v. Garland, 46 F.4th 1032, 1045 (9th Cir.
2022) (“We also consider jury instructions as persuasive
authority when analyzing divisibility.”). The relevant model
instruction states that the government is required to prove
that “the defendant . . . possessed any amount of [name of
substance].” ICJI 403A – Possession of a Controlled
Substance with Intent to Deliver/Manufacture, Idaho
Criminal Jury Instructions,
https://isc.idaho.gov/main/criminal-jury-instructions
(brackets in original). That wording establishes that the
government must prove the specific identity of the drug to
meet its burden of proof, not merely that the drug is listed on
Schedule II.
10 TELLEZ-RAMIREZ V. GARLAND

In short, the statute itself, plus Idaho precedent and
model jury instructions, establish that the statute is divisible
by drug type. 2 For the foregoing reasons, the identity of the
controlled substance is an element of the crimes defined in
Idaho Code section 37-2732(a)(1), including in subsection
(A). That statute is therefore divisible as to drug type.
Applying the modified categorical approach, the record
of Petitioner’s conviction clearly documents that he was
convicted of possessing methamphetamine with intent to
deliver it. Methamphetamine is a controlled substance under
both federal and Idaho law. 21 U.S.C. § 812, Schedule II
(c), Schedule III (a)(3); Idaho Code §§ 37-2701(e), 37-
2707(d)(3). Accordingly, his conviction is a match to the
federal counterpart as to drug type under the modified
categorical approach.
B. The Required Mental State Under Federal and State
Law is the Same in All Relevant Respects.
Petitioner also argues that the mens rea required by Idaho
Code section 37-2732(a) is broader than the mens rea
required by its federal counterpart, 21 U.S.C. § 841(a).
Again, we disagree.
The text of Idaho Code section 37-2732(a) is silent as to
mens rea. But the Idaho Supreme Court has held that the

2
Petitioner also argues that the role of the Idaho State Pharmacy Board
in classifying substances on the schedules supports his claim of
indivisibility because the Idaho legislature fixes the operating conditions
for the Pharmacy Board. Thus, “the specific substances which the Board
classifies are not statutory elements, but rather means by which the
‘condition’ as fixed by the legislature, can be proven.” That argument is
foreclosed by Idaho Supreme Court precedent establishing that the
identity of a drug is an element of the crime, not a means of committing
the crime. Tucker, 953 P.2d at 617; Blake, 985 P.2d at 122.
 TELLEZ-RAMIREZ V. GARLAND 11

crime of possession with intent to deliver defined by that
statute requires that “the defendant know the identity of the
substance . . . or believe it to be another controlled
substance.” State v. McKean, 356 P.3d 368, 375 (Idaho
2015) (citations and internal quotation marks omitted). The
text of the federal statute, 21 U.S.C. § 841(a), makes it
unlawful for any person “knowingly or intentionally” to
“possess with intent to . . . distribute . . . a controlled
substance.” Id. The Supreme Court has clarified that, under
the federal statute, possession with intent to deliver requires
proof that the defendant either know “the identity of the
substance he possessed” or know that he “possessed a
substance listed on the schedules, even if he did not know
which substance it was.” McFadden v. United States, 576
U.S. 186, 192 (2015).
The mens rea, knowledge, is the same under both
statutes: The defendant either must know specifically what
the substance is (even if the defendant does not know that it
is a controlled substance) or must know that the substance is
illegal to possess (even if the defendant does not know what
the substance is). Petitioner argues that the mens rea does
not match because more substances are covered by the Idaho
law. He posits that an Idaho defendant could believe that the
federally controlled drug he possessed was instead a
different drug banned only by the state and, thus, he would
not have the mens rea necessary for federal criminal liability.
This argument misses the mark. Petitioner’s
hypothetical defendant is mistaken about the identity of the
substance that he possesses. But despite that incorrect belief,
he correctly believes that he possesses a controlled substance
under Idaho law. That mental state is sufficient under Idaho
law because, “whether he thinks those drugs are
methamphetamine or cocaine or heroin” or, instead, butyl
12 TELLEZ-RAMIREZ V. GARLAND

nitrite, “he knows that he is engaged in conduct prohibited
by” Idaho law. State v. Stefani, 132 P.3d 455, 461 (Idaho
Ct. App. 2005), abrogated on other grounds as stated in State
v. Galvan, 326 P.3d 1029, 1033 n.5 (Idaho Ct. App. 2014).
The same is true under federal law: Defendants who are
mistaken about which controlled substance they possess still
know that they possess a controlled substance and, therefore,
have the necessary knowledge to be convicted. See
McFadden, 576 U.S. at 192. Although United States v.
Verduzco-Rangel, 884 F.3d 918 (9th Cir. 2018), decided a
slightly different issue than the one that we face here, we
correctly observed there that “knowingly possessing for sale
a substance controlled only by state law involves an equally
culpable state of mind as knowingly possessing for sale a
substance controlled by federal law.” Id. at 923 n.3. This
equivalence of culpability makes the state and federal
crimes’ mens rea elements equivalent for purposes of the
categorical analysis. Accordingly, Petitioner’s mens rea
argument fails.
C. Idaho’s Definition of Aiding and Abetting Coincides
with the Generic Federal Definition of Aiding and
Abetting.
Third, Petitioner argues that Idaho’s definition of aiding
and abetting is broader than the federal definition. We are
not persuaded.
The acts prohibited under Idaho Code section 37-2732
for the completed crime at issue are no broader than the acts
prohibited under federal law. Section 37-2732 criminalizes
“manufactur[ing] or deliver[ing], or possess[ing] with intent
to manufacture or deliver, a controlled substance.” Id. § 37-
2732(a). Title 21 U.S.C. § 841(a)(1) criminalizes
“manufactur[ing], distribut[ing], or dispens[ing], or
 TELLEZ-RAMIREZ V. GARLAND 13

possess[ing] with intent to manufacture, distribute, or
dispense, a controlled substance.” Petitioner does not
quarrel with the equivalence of these provisions on their face
but contends that Idaho law punishes, as principals, those
who aid and abet a crime through “mere solicitation.”
Because federal drug-trafficking law does not encompass
mere solicitation, he reasons, the Idaho law is overbroad.
A separate Idaho statute integrates accomplice liability
into the statute of conviction. See Idaho Code § 18-204 (“All
persons concerned in the commission of a
crime, . . . whether they directly commit the act constituting
the offense or aid and abet in its commission, . . . are
principals in any crime so committed.” (emphasis added)).
Under Alfred, we must consider whether Idaho’s definition
of aiding and abetting aligns with the federal definition of
aiding and abetting. Alfred, 64 F.4th at 1032–33.
The Supreme Court of Idaho has defined aiding and
abetting to include the act of solicitation. See Rome v. State,
431 P.3d 242, 253 (Idaho 2018) (holding that a conviction
for aiding and abetting requires proof that the defendant
“participated in or assisted, encouraged, solicited, or
counseled the crime” (citation and internal quotation marks
omitted)). The term “solicit” does not appear in the federal
definition of aiding and abetting in 18 U.S.C. § 2(a), which
states: “Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.”
Nonetheless, the Idaho statute is not overbroad.
First, the Idaho definition of principals requires the
commission of a completed crime: “All persons concerned
in the commission of a crime, . . . whether they directly
commit the act constituting the offense or aid and abet in its
14 TELLEZ-RAMIREZ V. GARLAND

commission, . . . are principals in any crime so committed.”
Idaho Code § 18-204 (emphases added). Solicitation in the
sense Petitioner uses it is an inchoate offense, which is
separately defined under Idaho law. See id. § 18-2001. In
other words, a defendant who merely solicited an
uncompleted crime could not be convicted of the completed
Idaho crime of which Petitioner was convicted and which the
Government contends is a categorical match to the federal
crime. Because Petitioner was convicted only of the
completed crime of possession of methamphetamine with
intent to deliver, not of an inchoate solicitation offense, we
need not consider whether the inchoate offense also would
be a categorical match to the federal crime.
Second, the mere presence of the word “solicit” in the
Idaho caselaw about aiding and abetting does not change the
analysis. “Statutory definitions do not have to be identical
to establish a categorical match.” Dominguez v. Barr, 975
F.3d 725, 739 (9th Cir. 2020). Finding a mismatch between
a state definition and the generic definition of the crime
requires “a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls
outside the generic definition of a crime.” Duenas-Alvarez,
549 U.S. at 193. “The mere presence of an additional
descriptive term in the state offense’s definition is
insufficient, on its own, to meet this burden.” Dominguez,
975 F.3d at 739.
And the Idaho Supreme Court has held that the Idaho
aiding and abetting statute “requires that the person actively
participate in the commission [of] the crime in some manner
and have the specific intent that the crime be committed.”
Rome, 431 P.3d at 253 (emphases added). The aider and
abettor must share “the criminal intent of the perpetrator.”
Id. (citations and internal quotation marks omitted).
 TELLEZ-RAMIREZ V. GARLAND 15

Similarly, “generic accomplice liability requires a showing
that the putative accomplice intentionally aided or abetted
another in the commission of the crime.” Alfred, 64 F.4th at
1042; see also Rosemond v. United States, 572 U.S. 65, 76
(2014) (“[A] person aids and abets a crime when (in addition
to taking the requisite act) he intends to facilitate that
offense’s commission.”). Accordingly, both the Idaho
definition of accomplice liability and its federal counterpart
definitions require (1) criminal intent to commit the crime,
and (2) an act intended to facilitate the crime’s commission.
Contrary to Petitioner’s argument, neither State v.
Hickman, 806 P.2d 959 (Idaho Ct. App. 1991), nor State v.
Gallatin, 682 P.2d 105 (Idaho Ct. App. 1984), supports his
theory. See Hickman, 806 P.2d at 961 (holding that the
defendant’s presence at the scene of the transaction, paired
with his comments about the high quality of the marijuana
being sold by his friend, constituted aiding and abetting);
Gallatin, 682 P.2d at 109–10 (holding that the defendant’s
setting up a meeting to sell cocaine, meeting with an
undercover agent, and negotiating the price of the cocaine
constituted aiding and abetting). Neither case involved mere
solicitation. Moreover, both Hickman and Gallatin are
decisions of the intermediate appellate court that predate the
Idaho Supreme Court’s decision in Rome, so they cannot and
do not override Rome’s requirement of active participation.3

3
Petitioner also relies on Howard v. Felton, 379 P.2d 414, 415 (Idaho
1963). Both the procedural history and the facts of Howard differ
substantially from those in Petitioner’s case, and Howard contains no
clear holding in support of Petitioner’s argument about mere solicitation.
To the extent that Howard is relevant despite those differences, Rome—
a much more recent and on-point Idaho Supreme Court precedent—
controls.
16 TELLEZ-RAMIREZ V. GARLAND

Finally, Petitioner argues that we must consider the
scope of Idaho law on “attempt.” We need not and do not
do so, because only the completed crime of possession with
intent to deliver methamphetamine is at issue here. Nor does
the fact that Idaho law defines the term “deliver” to include
“attempted transfer” require an analysis of Idaho attempt
law. Idaho Code § 37-2701(g). The word “deliver” appears
in the mens rea element of the crime of conviction, and
possession with intent to deliver is no different from
possession with intent to attempt delivery.
D. Conclusion
Under the modified categorical approach, Petitioner’s
conviction under Idaho Code section 37-2732(a)(1)(A) is an
aggravated felony because it matches the relevant federal
drug trafficking crime.
PETITION DENIED. The temporary stay of removal
remains in place until the mandate issues. The motion for
stay of removal, Docket No. 3, is otherwise DENIED.