Lazo v. Wilkinson

JAIME LAZO, AKA Jaime Lazo

Venegas, Petitioner,

v.

ROBERT M. WILKINSON, Acting

Attorney General, Respondent.

No. 14-73182

United States Court of Appeals

Ninth Circuit

Filed February 26, 2021

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 7, 2020^*

Pasadena, California

Before: Marsha S. Berzon and Daniel P. Collins, Circuit

Judges, and Gary S. Katzmann,^** Judge.

Opinion by Judge Collins

COUNSEL

Carlos A. Cruz, Alhambra, California, for Petitioner.

Melissa Neiman-Kelting and M. Jocelyn Lopez Wright, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

OPINION

COLLINS, Circuit Judge:

Jaime Lazo, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals ("BIA"), which held that Lazo's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code § 11350 qualifies as a "controlled substance offense," thereby rendering him removable under § 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(B)(i). Although California Health and Safety Code § 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under § 237(a)(2)(B)(i), we agree with the BIA that Lazo's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Tejeda v. Barr, 960 F.3d 1184, 1186-87 (9th Cir. 2020). Applying that approach here, we conclude that § 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. Because Lazo's conviction under § 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that Lazo was convicted of an offense "relating to a controlled substance" within the meaning of § 237(a)(2)(B)(i). He was therefore properly ordered to be removed from the United States under that section, and we deny his petition for review.

I

Lazo is a native and citizen of Mexico who was admitted to the United States as a lawful permanent resident on October 13, 1961. After being convicted in the 1980s on a federal charge of conspiracy to possess cocaine base with intent to distribute, Lazo was the subject of a previous deportation proceeding in the early 1990s. That proceeding was terminated in Lazo's favor in 1991 after an immigration judge granted him a waiver of inadmissibility under the since-repealed provisions of former § 212(c) of the INA, 8 U.S.C. § 1182(c) (Supp. II 1990), repealed by Pub. L. No. 104-208, Div. C, § 304(b), 110 Stat. 3009, 3009-597 (1996).

The current removal proceedings were instituted in 2008 after Lazo was convicted earlier that year of burglary in violation of California Penal Code § 459. The Department of Homeland Security ("DHS") alleged that § 459 was an aggravated felony warranting removal under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). We subsequently held, however, that a violation of § 459 was not categorically an aggravated felony. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100-01 (9th Cir. 2011). DHS then withdrew that removability charge in 2012 and instead filed an additional charge alleging that Lazo was removable under INA § 237(a)(2)(B), based on a conviction for an offense "relating to a controlled substance." See 8 U.S.C. § 1227(a)(2)(B)(i). The basis for this charge was Lazo's 1999 conviction in California state court for possession of cocaine in violation of California Health and Safety Code § 11350(a).¹

The immigration judge sustained the charge of removability and denied Lazo's request for voluntary departure, which was ultimately the only form of relief from removal that Lazo sought. The immigration judge concluded that § 11350(a)'s sweep was too broad to be a categorical match for a "controlled substance" offense under INA § 237(a)(2)(B)(i), but she went on to hold that § 11350(a) was a divisible statute and that, under a modified categorical approach, Lazo's conviction for possession of cocaine under that statute counted as a controlled substance offense. The BIA upheld that ruling, expressly agreeing that, under the modified categorical approach, Lazo's conviction under § 11350(a) was a controlled substance offense under INA § 237(a)(2)(B)(i). Lazo timely petitions for review, and we have jurisdiction under INA § 242, 8 U.S.C. § 1252. "We review de novo whether a particular conviction under state law is a removable offense." Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016).

II

Under § 237(a)(2)(B)(i) of the INA, an alien is generally removable if he or she has been convicted of a violation of a federal, state, or foreign law "relating to a controlled substance," as that term is defined in § 102 of the Controlled Substances Act ("CSA"), 21 U.S.C. § 802. See 8 U.S.C. § 1227(a)(2)(B)(i).² Under that cross-referenced definition, the "term 'controlled substance' means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter," 21 U.S.C. § 802(6), and "cocaine" is specifically included in "schedule II," id. § 812(c), sched. II(A)(4). Contrary to Lazo's contention, we conclude that his 1999 conviction for possession of cocaine in violation of California Health and Safety Code § 11350 is an offense relating to a "controlled substance," as that term is defined in the CSA.3

A

In assessing whether a conviction for a particular state offense counts as one "relating to a controlled substance" under § 237(a)(2)(B)(i), we begin by applying the so-called "categorical approach," under which a "state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law." Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (emphasis added); see also Tejeda, 960 F.3d at 1186-87. Applying the categorical approach to § 237(a)(2)(B)(i), the Supreme Court has explained that this "removal provision is . . . satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance" as defined in CSA § 102. Mellouli, 575 U.S. at 811 (emphasis added). In Mellouli, the Court noted that the Kansas drug paraphernalia statute at issue there relied on a list of drugs that "included at least nine substances" that were not included within the CSA's definition. Id. at 808. As such, the Court held, the Kansas statute was not a categorical match for purposes of § 237(a)(2)(B)(i). Id. at 808, 813.

Relying on Mellouli, we have similarly recognized that the list of controlled substances applicable under many of California's controlled substances laws "include[s] 'numerous substances that are not similarly regulated by the CSA.'" Mielewczyk v. Holder, 575 F.3d 992, 995 (9th Cir. 2009) (citation omitted); see also United States v. Martinez- Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc). Because the controlled-substance-possession offense set forth in California Health and Safety Code § 11350(a) likewise relies on an overbroad list of controlled substances comparable to the related California controlled-substance- trafficking statute at issue in Mielewczyk and Martinez- Lopez, compare Cal. Health & Safety Code § 11352 with id. § 11350; see also infra note 6, it follows that § 11350 is not categorically an offense "relating to a controlled substance" under INA § 237(a)(2)(B)(i). Indeed, the Government does not contest this point in this court.

B

Because § 11350 is not a categorical match to the offense described in INA § 237(a)(2)(B)(i), we next ask whether Lazo's conviction might nonetheless qualify under the "modified categorical approach." We conclude that it does.

1

Under the "modified categorical approach," we must first consider whether § 11350 is "divisible," meaning that it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (emphasis added). If § 11350 does set out alternative offenses with different elements, then we may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the [alien's] prior conviction." Descamps v. United States, 570 U.S. 254, 257 (2013). And if the particular alternative that those documents reveal "form[ed] the basis of the conviction" under state law is categorically an offense relating to a "controlled substance" as defined under the CSA, then it qualifies as a removable offense under § 237(a)(2)(B)(i) of the INA. Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018). By contrast, if a statute "lists alternative means of fulfilling one (or more)" of the "crime's elements," that is not enough to establish that the statute is divisible. Mathis, 136 S. Ct. at 2253 (emphasis added).

In deciding whether "an alternatively phrased list" in a state statute sets forth alternative "elements or means," a court should consider any "authoritative sources of state law," such as the statutory text or controlling decisions of the state courts. Mathis, 136 S. Ct. at 2256; see also Martinez- Lopez, 864 F.3d at 1039. In the absence of such sources, the "record of a prior conviction itself" may clearly show, in the "indictment and jury instructions," that "the statute contains a list of elements, each one of which goes toward a separate crime." Mathis, 136 S. Ct. at 2256-57. If, for example, a jury need not unanimously agree as to which of the listed alternatives was satisfied in a particular case, that is a clear sign that they are "alternative methods of committing one offense" and not alternative elements of separate offenses. Id. at 2256 (simplified).

We addressed a similar question in Martinez-Lopez, where we held that the listing of alternative controlled substances set forth in the related drug-trafficking offense defined in California Health and Safety Code § 11352 "does not simply describe alternative methods of committing one offense," but rather defines alternative elements. 864 F.3d at 1040 (simplified).⁴ Reviewing the authoritative California caselaw, we noted that the California Supreme Court has "recognize[d] multiple section 11352 convictions for a single act as it relates to multiple controlled substances," and we therefore concluded that the state high court had "implicitly held that the controlled substance requirement is an element." Id. at 1041. We placed particular weight on California cases construing "section 654 of the California Penal Code, which prohibits multiple sentences for a single 'act or omission that is punishable in different ways by different provisions of law.'" Id. at 1040. This caselaw, we concluded, confirmed that, in California drug cases involving several different controlled substances, (1) "multiple sentences are proper so long as the defendant has multiple criminal objectives"; and (2) "multiple convictions" remain proper "even when a defendant has a single criminal objective." Id. We further explained that, under this authority, defendants in California "are routinely subjected to multiple convictions under a single statute for a single act as it relates to multiple controlled substances." Id. We also noted that the California pattern jury instructions applicable to an offense under § 11352 "require a jury to fill in a blank identifying 'a controlled substance'---i.e., only one---demonstrating that the jury must identify and unanimously agree on a particular controlled substance." Id. at 1041. In light of these considerations, we held that "section 11352 is divisible with regard to its controlled substance requirement." Id.⁵

For several reasons, we conclude that Martinez-Lopez's reasoning as to California Health and Safety Code § 11352 applies equally to § 11350, and that the latter statute is therefore likewise divisible as to its controlled substance element.

First, there is no meaningful difference between the relevant text of § 11350 and § 11352. Although the listings of controlled substances contained in each statute have changed in minor and immaterial respects between 1999 (when Lazo was convicted) and today, the corresponding contemporaneous lists in each statute are virtually identical to one another, both in their 1999 versions and in their current versions.⁶ Given the materially identical wording of the relevant language in both statutes, we lack any textual basis for reaching a different conclusion as to § 11350 than Martinez-Lopez did with respect to § 11352.

We reached the same conclusion in Tejeda, 960 F.3d at 1186, where we addressed the divisibility of California Health and Safety Code § 11550(a), which recites a substantially similar list as § 11352(a) in providing that a "person shall not use, or be under the influence of[,] any controlled substance." As we explained, under Martinez- Lopez, other California "statutes incorporating those lists"--- such as § 11550---"are divisible and the modified categorical approach applies." 960 F.3d at 1186. Because § 11350 uses much of the same language as § 11352 and § 11550 in borrowing a similar list, Tejeda confirms that § 11350 is divisible under Martinez-Lopez. See also United States v. Ocampo-Estrada, 873 F.3d 661, 668 (9th Cir. 2017) (concluding that Martinez-Lopez's reasoning "logically extends past section 11352 to other California drug laws that criminalize an activity relating to other referenced controlled substances" and applying that reasoning to the possession- for-sale statute, Cal. Health & Safety Code § 11378).

Second, the same California caselaw construing Penal Code § 654, which Martinez-Lopez found dispositive as to § 11352, also applies equally to § 11350. More than 60 years ago, the California Court of Appeal upheld separate convictions (with concurrent sentences) for simultaneous possession of three different drugs under the predecessor statute to § 11350. See People v. Lopez, 337 P.2d 570, 574- 75 (Cal. Ct. App. 1959).⁷ The court in Lopez expressly rejected the defendant's argument that his multiple convictions violated Penal Code § 654, holding that "the possession of each of the three different and distinct types of narcotics, even at the same time, constituted three separate offenses." Id. at 574. The California courts have repeatedly reaffirmed the vitality of Lopez and of the rule that simultaneous possession of multiple controlled substances may warrant separate convictions and separate punishments. See, e.g., People v. Barger, 115 Cal. Rptr. 298, 304 (Cal. Ct. App. 1974) ("California courts have uniformly held that section 654 does not preclude multiple punishment for simultaneous possession of various narcotic drugs." (citing, inter alia, Lopez)); see also People v. Monarrez, 78 Cal. Rptr. 2d 247, 249-50 (Cal. Ct. App. 1998) (citing, inter alia, Barger and Lopez). The case law construing Penal Code § 654---on which Martinez-Lopez relied heavily in reaching its conclusion as to the divisibility of § 11352---is thus equally applicable to § 11350. See Martinez-Lopez, 864 F.3d at 1040 (noting that, "as recently as 2012," the California Supreme Court had "reaffirmed" that "simultaneous possession of different items of contraband are separate crimes" (internal quotation marks omitted) (quoting People v. Jones, 278 P.3d 821, 827 (Cal. 2012))). That provides further strong support for concluding that § 11350 is divisible as to its controlled substance element.

Third, just as with the pattern jury instruction for § 11352, the official California pattern jury instruction applicable to offenses under § 11350 also requires that the specific controlled substance be identified in the instructions and that, in order to convict, the jury must unanimously find that the defendant possessed that particular substance. See Jud. Council of Cal., Criminal Jury Instructions, No. 2304 (2020); see also California Jury Instructions---Criminal, No. 12.00 (6th ed. 1996) (same for prior pattern instruction for § 11350). Martinez-Lopez's reliance on this feature of the § 11352 pattern jury instruction thus equally applies to § 11350. See 864 F.3d at 1041; see also Ocampo-Estrada, 873 F.3d at 668 (noting that Martinez-Lopez's observation concerning the pattern jury instruction for § 11352 also applied to the pattern jury instruction for § 11378, and therefore supported the view that § 11378 was divisible as to the controlled substance).⁸