As will be discussed below, divisible statute analysis applies only where the statute in question:

 

1.      Can be divided into discrete subsections (e.g., California Penal Code § 136.1(a), (b) and (c)), and/or

 

2.      Contains more than one offense, separated by the disjunctive “or” (e.g., California Penal Code § 459, which punishes burglary with intent to commit “grand or petit larceny or any felony. . . .”).

 

These two situations are described, respectively, in § § 4.10 and 4.11, infra.  A special situation in which one offense is committed with intent to commit another (e.g., burglary with intent to commit theft) is discussed in § 4.12, infra.

 

            To apply a divisible statute analysis, it must also be true that (applying the minimum conduct rule) at least one set of elements necessarily triggers a ground of removal, while another set of elements does not.  See § 4.8, supra.

 

Otherwise a statute should not be considered divisible, and should be subject to a straight categorical analysis, applying the minimum conduct test.  See § 4.13, infra, § § 4.2-4.7, supra.  This means that the court should not be allowed to look to the record of conviction to determine the nature of the offense.[130]

[130] Matter of Short, 20 I. & N. Dec. 136, 138 (BIA 1989) (“Only where the statute under which the respondent was convicted includes some offenses that involve moral turpitude and some that do not do we look to the record of conviction, meaning the indictment, plea, verdict, and sentence, to determine the offense for which the respondent was convicted.”).

Fifth Circuit

CATEGORICAL ANALYSIS - DIVISIBLE STATUTE ANALYSIS
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (BIA erred in looking to record of conviction to determine the underlying felony in a conviction for misprision of a felony, since the statute at issue, 8 U.S.C. 4, does not include any discrete subsections or disjunctive terms).

Sixth Circuit

CATEGORICAL ANALYSIS - DIVISIBLE STATUTES - STATUTES WITH DIFFERENT LEVELS OF PUNISHMENT
United States v. Gagnon, 553 F.3d 1021 (6th Cir. Jan. 29, 2009) ("Although 18 U.S.C. 111 appears to set out a single offense with three levels of punishment to be imposed depending on the finding of certain sentencing elements, the Supreme Court has instructed that statutes with this type of structure in fact set forth separate crimes whose elements all must be proven to a jury. In Jones v. United States, 526 U.S. 227, 252, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court construed the federal carjacking statute-which also begins with a general offense provision and is followed by provisions defining levels of punishment based on varying criteria-and held that it defines separate crimes and that the factors leading to higher punishment must be considered elements of crimes and not sentencing enhancements. Id. This construction was necessary to avoid constitutional problems that would arise if elements of crimes were re-labeled sentencing factors: Congress may not circumvent the constitutional requirement that elements of crimes must be submitted to a jury and proven beyond a reasonable doubt by re-labeling them sentencing enhancements. Id. Imagine the problems if Congress created a statute entitled theft that distinguished between petty theft and violent burglaries on the basis of sentencing enhancements not submitted to juries or proven beyond a reasonable doubt.").

Ninth Circuit

CRIMES OF MORAL TURPITUDE " BURGLARY
Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. Aug. 22, 2014) (California conviction of burglary, in violation of Penal Code 459 [entry with intent to commit larceny or any felony], did not constitute a divisible statute, under Descamps; the presence of an or between grand or petit larceny and any felony does not render the statute divisible, because the intended offense, under this statute, is not an element of the offense, but a means of commission, since California law does not require jury unanimity on this point; BIA's use of the modified categorical approach was impermissible); citing People v. Failla, 414 P.2d 39, 44-45 (1966); distinguishing Ngaeth v. Mukasey, 545 F.3d 796, 802 (9th Cir. 2008) (per curiam) (decided prior to Descamps); Hernandez"Cruz v. Holder, 651 F.3d 1094, 1104"05 (9th Cir. 2011) (same). NOTE: The court states: To be clear, it is black-letter law that a statute is divisible only if it contains multiple alternative elements, as opposed to multiple alternative means. Id. at 2285. Thus, when a court encounters a statute that is written in the disjunctive (that is, with an or), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

NATURE OF CONVICTION " DIVISIBILITY " OFFENSE LEVEL DEPENDENT UPON ELEMENTS
United States v. Cisneros, ___ F.3d ___ 2014 WL 4067214 (9th Cir. Aug. 19, 2014) (Oregon conviction for fleeing or attempting to elude police officers under ORS 811.540(1), is divisible for purposes of the ACCA, since the offense is a misdemeanor if the defendant fled on foot, but a felony if he fled by car).

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS
Young v. Holder, 697 F.3d 976, *983 (9th Cir. Sept. 17, 2012) (en banc) (When, as here, the state statute of conviction criminalizes a broader range of conduct than the generic federal crime, we employ the modified categorical approach, which requires us to determine whether a jury was actually required to find all the elements of the generic federal crime. Aguila"Montes de Oca, 655 F.3d at 920 (internal quotation marks omitted). When applying the modified categorical approach in the context of a guilty plea, we must determine whether a guilty plea to an offense defined by a nongeneric statute necessarily admitted elements of the generic offense. Id. at 921 (emphasis added) (internal quotation marks omitted).).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " RECORD OF CONVICTION DOES NOT INCLUDE DOCUMENTS RELATING TO DIFFERENT CONVICTION
Aguilar-Turcios v. Holder, 691F.3d 1025, *1037 (9th Cir. Aug. 15, 2012) (there is no legal precedent that allows a court, in its application of the modified categorical approach, to look beyond the record of conviction of the particular offense that the government alleges is an aggravated felony. . . . Aguilar-Turcios Article 92 and Article 134 convictions were for separate offenses that charged different conduct, and we are reluctant to conflate the two into one or allow one to seep into the other when applying the modified categorical approach.); accord, Jaggernauth v. Atty Gen., 432 F.3d 1346, 1355 (11th Cir. 2005).

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " SIMILARITIES BETWEEN TWO CHARGES DO NOT ESTABLISH THAT EACH IS BASED ON SAME UNDERLYING FACTS
Aguilar-Turcios v. Holder, 691 F.3d 1025, *1039 (9th Cir. Aug. 15, 2012) (Because the two charges are worded differently, we cannot conclude that the two convictions necessarily rested on the same facts.)

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. Aug. 11, 2011) (en banc) (modified categorical analysis applies even [w]hen the crime of conviction is missing an element of the generic crime altogether.); overruling Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc).

DIVISIBLE STATUTE ANALYSIS - NO ELEMENT STATUTES
Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (where a criminal statute contains no elements ["any assault other than assault in the 1st, 2nd, 3rd, degree is fourth degree assault"] the reviewing court looks to state caselaw to determine the elements for categorical analysis; where caselaw lays out three ways to commit the offense, as with RCW 9A.39.041, fourth degree assault, the statute will be considered divisible) , citing Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) ("in determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.") (citation omitted).

NATURE OF CONVICTION - DIVISIBLE STATUTE ANALYSIS - "AS CHARGED"
United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. Oct. 10, 2007) ("We know from the Complaint that Vidal was charged with "willfully and unlawfully driv[ing] and tak[ing] a vehicle ... without the consent of and with intent to deprive the owner of title to and possession of said vehicle, in violation of Vehicle Code Section 10851(a)." He pled guilty, however, only to "Count 1 10851(a) VC Driving a Stolen Vehicle." The plea does not, therefore, establish that Vidal admitted to all, or any, of the factual allegations in the Complaint. In order to identify a conviction as the generic offense through the modified categorical approach, when the record of conviction comprises only the indictment and the judgment, the judgment must contain "the critical phrase as charged in the Information. ").

DIVISIBLE STATUTE ANALYSIS - RECORD OF CONVICTION - MODIFIED CATEGORICAL ANALYSIS IMPOSSIBLE FOR LACK OF RECORD OF CONVICTION DOCUMENTS
United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691 (9th Cir. Sept. 26, 2006) (court of appeals was unable to undertake modified categorical analysis, because record in district court failed to include any documents from the court of conviction on which to base modified categorical analysis).

Other

PRACTICE ADVISORY " CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
See Immigrant Legal Resource Center, Practice Advisory, Great Ninth Circuit Case on Divisible Statutes: California Burglary Never Is Attempted Theft. In Rendon v. Holder the Ninth Circuit clarified when a statute is truly divisible under the categorical approach, and held that California burglary (Penal Code 459) never constitutes the aggravated felony attempted theft. This holding also means that California burglary never is a crime involving moral turpitude, under the categorical approach. http://www.ilrc.org/resources/great-ninth-circuit-case-on-divisible-statutes-california-burglary-never-is-attempted-theft

CONVICTION " NATURE OF CONVICTION " MODIFIED CATEGORICAL ANALYSIS MAY BE USED MORE OFTEN IN THE NINTH CIRCUIT
Some situations where Aguila-Montes may change prior law include: (1) Estrada-Espinoza consensual sex rules. California Penal Code 261.5(c) shouldn't change because there is only a 3-year age difference, but the result may change for other cases where the record of conviction shows a 4-year age difference between the victim who is under 16 and the perpetrator and there is knowing conduct. (2) Any sexual abuse offense which is age-neutral. Where the record of conviction shows that the victim is a minor would be an aggravated felony (e.g., California Penal Code 243.4(a) sexual battery) (3) Any age-neutral statute involving intentional abusive conduct or negligent abusive conduct used to avoid a crime of child abuse, where the record of conviction shows that the victim is a minor would be a deportable crime of child abuse. (4) Any firearm-neutral statute where a gun is involved would be a deportable firearms offense if, and but only if, it showed a violation of any law related to the elements of the firearm deportation ground. (5) Any crime of violence statute without a domestic element where a domestic element is shown is a deportable crime of domestic violence. (6) Any assaultive crime involving actual violent force where the record of conviction shows a domestic relation may now be considered crime of moral turpitude.