The easiest application of divisible statute analysis occurs where a statute has been divided by the legislature into individual numbered (or lettered) subsections, each defining a single separate crime.[131] 

 

For example: “Section 265.01 of the New York Penal Law consists of five subdivisions.  The third subdivision involves a firearm, and the first subdivision could, but might not necessarily, involve a firearms conviction.  As such, it is a divisible statute.”[132] 

 

If the judgment specifies only that the defendant was convicted of violating New York Penal Law § 265.01, but does not specify a particular subdivision, the court may examine the rest of the record of conviction to determine whether the defendant was convicted of New York Penal Law § 265.01(1), (2), (3), (4), or (5).  Since (2), (4), and (5) do not require use of a firearm as an essential element, if the record of conviction does not establish which subdivision the defendant was convicted of violating, then the government cannot clearly show that the conviction was a firearms conviction.  Obviously, if the record specifically identifies (2), (4), or (5) — one of the non-firearms offenses — as the offense of conviction, the conviction cannot be considered a firearms conviction. 

 

Since conviction of violating subdivision (1) may or may not require use of a firearm, that subsection is subject to the “minimum conduct” analysis, and if the record of conviction revealed that the noncitizen was convicted under that subsection, the government cannot establish deportability.[133]

 

            Assuming that the government bears the burden of proof, if criminal counsel can keep the record of conviction clear of any evidence that the defendant clearly violated a part of the statute that triggers removability, the charge of removal cannot be sustained.  Defense counsel may have to obtain an amended charge, or tailor the guilty plea so as to admit only a violation of the safe portion of the statute, in order to accomplish this.

 

[131] See, e.g., Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir. Dec. 19, 2005) (Florida conviction of grand theft, in violation of Fla. Stat. § 812.014(1), did not constitute aggravated felony theft, under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), for immigration purposes, because the statute was divisible as subsection (b) required only intent to appropriate use of the property, and the record of conviction did not establish that the defendant was convicted under subsection (a) which would have qualified as an aggravated felony).

[132] Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 325 (BIA 1996).

[133] See also United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a)(2003), was not established to be a crime of violence, under U.S.S.G. § 2L1.2, comment (b)(ii)(I), for purposes of enhancing a sentence for illegal re-entry, since the offense is divisible and only the first of the three subsections qualifies as a crime of violence).

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (June 20, 2013) (the modified categorical approach does not authorize a fact-based inquiry; court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the conviction.).

Second Circuit

DIVISIBLE STATUTE ANALYSIS - WHEN APPLICABLE
James v. Mukasey, 522 F.3d 250 (2d Cir. Mar. 25, 2008) (remanding to the BIA to decide whether New York misdemeanor conviction of endangering the welfare of a child, in violation of Penal Law 260.10 ["knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health"], is a divisible statute).

    This case leaves open, and remands to the BIA, the issue of whether a statute containing a single set of elements [or in this case two sets] that does not necessarily include aggravated felony conduct can be found to be "divisible" for purposes of applying the modified categorical analysis and making reference to the record of conviction. The law has been, of course, that a statute containing only one offense cannot be found divisible. Instead, the immigration authorities must apply the minimum conduct test when a statute contains only one set of elements that may be met by conduct that both falls within and outside of a ground of removal.

The Second Circuit stated:

"Up to this point," we observed recently in Dulal-Whiteway v. U.S. Department of Homeland Security, "we have explicitly found statutes divisible only where the removable and non-removable offenses they describe are listed in different subsections or comprise discrete elements of a disjunctive list of proscribed conduct"; "we have not explicitly queried whether this logic extends to a statute ... where only one type of generic conduct ... is proscribed, but an alien can commit the conduct both in ways that would render him removable ... and in ways that would not ...." 501 F.3d 116, 126-27 (2d Cir.2007) (emphasis added). The statute in Dulal-Whiteway (proscribing fraud to obtain things valuing over $1,000) is one such a statute. Id. at 126. The statute in this case is another. FN4 We further observed in Dulal-Whiteway that there are at least three ways of approaching such a statute -- none of which we have explicitly adopted or rejected. We could "find[ ] divisible only those statutes where the alternative means of committing a violation, some of which constitute removable conduct and some of which do not, are enumerated as discrete alternatives." Id. at 127 (emphasis added). Or we could "take the position that all statues of conviction may be considered divisible regardless of their structure, so long as they contain an element or elements that could be satisfied either by removable or non-removable conduct." Id. at 128. And somewhere in the middle is a third approach, developed by the Third Circuit, under which a criminal statute may be considered divisible if either (1) the statute of conviction is phrased in the disjunctive or divided into subsections such that "some variations of the crime of conviction meet the aggravated-felony requisites and others do not," or (2) the relevant removability provision "invite[s] inquiry into the facts underlying the conviction at issue." Singh v. Ashcroft, 383 F.3d 144, 161, 162 (3d Cir.2004)).FN5 "Neither Supreme Court nor Second Circuit precedent," we concluded in Dulal-Whiteway, "compels a conclusion one way or the other." 501 F.3d at 127.FN6 And no case since Dulal-Whiteway has provided greater guidance as to how we would treat a statute like New York Penal Law section 260.10. Accordingly, the IJ and BIA based their decision on an incorrect premise.

Fifth Circuit

NATURE OF CONVICTION - CONJUNCTIVE OR DISJUNCTIVE
United States v. Moreno-Florean, 542 F.3d 445, 452-453 (5th Cir. Sept. 8, 2008) (In California, "[a] guilty plea admits every element of the crime charged." People v. Wallace 33 Cal.4th 738, 16 Cal.Rptr.3d 96, 93 P.3d 1037, 1043 (2004) (quotations omitted). Based on Wallace,one might argue that Moreno-Florean's guilty plea admitted every conjunctive element alleged in the indictment. This argument is misplaced, however, because "[i]t is well settled [in California] that where the statute enumerates several acts disjunctively, which separately or together shall constitute the [criminal] offense, the indictment, if it charges more than one of them ... in the same count, should do so in the conjunctive." People v.Turner, 185 Cal.App.2d 513, 8 Cal.Rptr. 285, 288 (1960) (citing People v. O'Brien, 130 Cal. 1, 62 P. 297, 298 (1900)); accord In re Bushman, 1 Cal.3d 767, 775, 83 Cal.Rptr. 375, 463 P.2d 727 (1970). Furthermore, if the indictment alleges elements in the conjunctive, the defendant can be convicted if the evidence establishes any set of disjunctive elements that together constitute the criminal offense. See Turner, 8 Cal.Rptr. at 288; see also Bushman, 83 Cal.Rptr. 375, 463 P.2d 727 ("Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts."). Moreno-Florean's guilty plea, when viewed in conjunction with the language of the indictment, does not narrow the statute of conviction for purposes of the categorical approach.")

RECORD OF CONVICTION - COMPLAINT VS. PLEA
United States v. Fernandez-Cusco, __ F.3d __ (5th Cir. Apr. 20, 2006) (examining for plain error, the court found that where the complaint charges defendant under a subsection of a divisible statute that is a categorical crime of violence, but the plea colloquy does not indicate any specific subsection, it is not plain error for the illegal re-entry sentencing court to find that the defendant had pleaded guilty to the subsection charged in the complaint).
http://caselaw.lp.findlaw.com/data2/circs/5th/0540289cr0p.pdf

Ninth Circuit

CONTROLLED SUBSTANCES " MEANS V. ELEMENTS " PAULUS DEFENSE
Coronado v. Holder, ___ F.3d ___, 2014 WL 983621 (9th Cir. Mar. 14, 2014) (rejecting argument that the modified categorical analysis is inapplicable to Health & Safety Code 11377(a); statutes specific reference to the California controlled substances lists allows conviction).

DIVISIBLE STATUTE ANALYSIS
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) (Arizona conviction in 2003 of class 2 misdemeanor domestic violence/assault, in violation of A.R.S. 13-1203(A), 13-3601 [which can either be under (1) by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person" or simple assault under (2) by "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury"], does not constitute a crime of moral turpitude for deportation purposes since the record of conviction does not specify which subdivision of the divisible statute was the offense of which respondent was convicted).

DIVISIBLE STATUTE ANALYSIS - IF ANY SUBDIVISION OR PART OF DIVISIBLE STATUTE OF CONVICTION DOES NOT TRIGGER DEPORTATION, AND THE RECORD DOES NOT ESTABLISH RESPONDENT WAS NOT CONVICTED OF THAT SUBDIVISION, THE CONVICTION DOES NOT TRIGGER DEPORTATION
Fernandez-Ruiz v. Gonzales, ___ F.3d ___, 2006 WL 3302660 (9th Cir. Nov. 15, 2006) ("The administrative record before us does not specify whether Fernandez-Ruiz pled guilty to subsection (A)(1) or (A)(2). (Footnore omitted.) Accordingly, if either subsection (A)(1) or (A)(2) covers conduct that is not a crime of moral turpitude, then the 2003 conviction cannot, categorically, be such an offense."), citing Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir. 2005) (observing that because record contained no evidence indicating under which section of the statute petitioner was convicted, he is removable only if a conviction under both sections would qualify as a crime involving moral turpitude).

Tenth Circuit

DIVISIBLE STATUTE - CONJUNCTIVE CHARGES
United States v. Torres-Romero, 537 F.3d 1155, 2008 WL 3843344 (10th Cir. Aug. 19, 2008) (looking to law of the state of conviction to determine whether conjunctive charge means that the defendant has admitted all of the conjunctive elements), agreeing with United States v. Morales-Martinez, 496 F.3d 356, 359 (5th Cir.2007).

Other

CONTROLLED SUBSTANCES " CALIFORNIA -- ARGUMENT " IDENTITY OF THE DRUG IS NOT AN ELEMENT OF CALIFORNIA DRUG OFFENSES, SO MODIFIED CATEGORICAL ANALYSIS IS IMPROPER TO IDENTIFY DRUG
Convictions under California Health & Safety Code 11377 and 11378 do not categorically qualify as generic controlled substance offenses under settled case law. Moreover, because the statute of conviction is not divisible in the sense used by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276 (2013), the Court cannot proceed to examine the record of conviction under the modified categorical analysis of the statute. Consequently, the convictions do not qualify as removable offenses. The Supreme Court in Descamps clarified the operation of the categorical analysis under Taylor v. United States, 495 U.S. 575 (1990). Descamps resolved a split in circuit authority regarding the scope and function of the modified categorical analysis (MCA). Contrary to the Ninth Circuits prior position, but consistent with the majority of other circuit courts, Descamps indicates that the MCA is not an exception to the first-stage categorical analysis of Taylor, but a supplemental tool in aid of the inquiry into the identity of the offense of conviction that is applied only in limited circumstances. See 133 S. Ct. at 2285. In particular, the MCA is resorted to: (1) only when the statute of conviction being compared to the generic offense for Taylor purposes is divisible; and (2) only to determine which alternative offense covered by the divisible statute was the basis of the conviction, not to determine what conduct underlies the predicate conviction. Under Descamps, the reasoning of the majority in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (per curiam), is firmly rejected, so that the MCA cannot be consulted where the statute of conviction is indivisible. See id. at 2286-91. Moreover, Descamps roundly disapproved the Aguila-Montes majoritys implementation of the MCA to ferret out facts about the underlying conviction. See id. at 2287 (That approach . . . turns an elements-based inquiry into an evidence-based one.). Instead, the MCA can be used only to identify the specific subpart (offense) within the divisible statute of which the defendant was convicted. See id. at 2285 (Applied in that way"which is the only way we have ever allowed"the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute.). In Descampss case, he was convicted of burglary under California Penal Code 459. That statute defines the offense in terms of an overbroad element of entry that does not require the generic element required for federal burglary of an unprivileged or unlawful entry. See id. at 2282; accord Aguila-Montes, 655 F.3d at 944. The question was whether the statute would qualify as generic if the MCA were consulted. However, unlike the majority in Aguila-Montes, the Supreme Court clarified in Descamps that the second-stage analysis could never be employed to narrow Penal Code 459, because the statute was not only overbroad, but indivisible, and so the MCA is inapplicable: [W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. Id. at 2282. The Court also made clear that although Penal Code 459 contains a number of alternative locations which can be burgled (e.g., a house, a room, a mill, an outhouse, an airplane, a mine, etc.), these were just alternate target locations, different means for satisfying the one element of entry. Because the element entry was overbroad and indivisible, the MCA has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers a lawful entry into a store, for example, with intent to commit simple shoplifting, as even the Government acknowledges. In Taylors words, then, Penal Code 459 define[s] burglary more broadly than the generic offense. And because that is true"because in California, to get a conviction, the prosecution need not prove that Descamps broke and entered"a 459 violation cannot serve as an ACCA predicate. Whether Descamps did in fact break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Id. at 2285-86 (citations omitted). Applying Descamps, the Fourth Circuit Court of Appeals recently refused to employ the MCA for a Maryland sexual abuse of a child statute, holding that the enumerated list of ways to violate the law were alternative means rather than elements, and, as such, were irrelevant to our inquiry. United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)(citing Descamps, 133 S.Ct. at 2285 n. 2). The same considerations apply here to California Health & Safety Code 11377 and 11378. Just like the overbroad entry in 459, the term controlled substance encountered in Health & Safety Code 11377 and 11378 is recognized as categorically overbroad, since it includes a broader range of substances than is found in the generic schedules of the federal Controlled Substances Act. See Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007); United States v. Leal-Vega, 680 F.3d 1160, 1167 (9th Cir. 2012). Thus, when a state complaint or information charges an offense involving a controlled substance, that term is overbroad and indivisible as is the entry in the burglary statute. Although controlled substance, like entry, can be subdivided into additional means by which the element can be satisfied, this does not create alternative elements in the sense used in Descamps, 133 S. Ct. at 2283-85. This is clear in both federal and state law. The Ninth Circuit has held that the identity of the specific controlled substance is not an element of a federal drug crime. See United States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011) (holding that pleading to a count alleging cocaine was not an admission to that fact, since We have held, however, that drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. 841.). The same is true in California law: the identity of the drug is not an element that must be charged in the information, but simply a means of committing the offense. See Ross v. Municipal Court, 122 Cal. Rptr. 807, 809-10 (Ct. App. 1975)(the name of drug need not be charged in complaint because it is only a means by which [defendant] committed the crimeof being under the influence.) In fact, the California courts have held there is no fatal variance if the type of drug charged differs from the one proved at trial, which could not be the case if the identity of the drug were an element. See People v. Martin, 86 Cal. Rptr. 3d 858, 861 (Ct. App. 2008); People v. Bryant, 2007 WL 2356072, at *2 (Cal. Ct. App. 2007) (unpublished); People v. Howington, 284 Cal. Rptr. 883, 888 (Ct. App. 1991); People v. Gelardi, 175 P.2d 855, 857 (Cal. Ct. App. 1946) (calling the specification of the drug type in the information mere surplusage), disapproved on other grounds in People v. Perez, 401 P.2d 934 (Cal. 1965). As the Court held in Gelardi, [W]ithout any specification of either opiates or morphine the accusation is sufficient, for it follows the language of the statute, and nothing beyond that is required in the absence of a special demurrer. Ibid. (citing People v. Kinsley, 118 Cal.App. 593, 596)(emphasis added). And because the jury need only find that a controlled substance listed in the statute was involved, and so need not unanimously agree on which drug it was in order to convict, the various substances listed do not create alternative elements rendering the statute divisible and so amenable to the MCA. On this point of requiring jury unanimity, the Descamps majority and dissent were in agreement See Descamps, 133 S. Ct. at 2290 (noting as a reason why a hypothetical, overbroad element of weapon is not narrowed by a jury verdict because [t]he jurors need not all agree on whether the defendant used a gun or a knife or a tire iron); id. at 2296 (Alito, J., dissenting) (By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction.). In a broader sense, both the Supreme Court and the Ninth Circuit have at least made clear that for a fact to be employed in the MCA, it must be necessary to sustain the prior conviction. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013): In other words, to satisfy the categorical approach, a state drug offense must meet two conditions: It must necessarily proscribe conduct that is an offense under the CSA, and the CSA must necessarily prescribe felony punishment for that conduct. Id. at 1685. Likewise, [i]t is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant. Aguila-Montes, 655 F.3d at 937. Because under federal and state law, the identity of the specific drug is not necessary to a proper pleading, a valid plea, or jury verdict, drug specifications in 11377 and 11378 do not create alternative elements rendering the statute amenable to the MCA under Descamps, and even if it did, is not a dispositive fact under the second-stage analysis as laid out in Moncrieffe and the surviving portions of Aguila- Montes. See United States v. Cazares, 123 F.3d 1241, 1246-47 (9th Cir. 1997) (guilty plea admits only allegations necessary to be proved for a conviction); Hunt, 656 F.3d at 912 (citing Cazares to hold that a guilty plea to a count containing a to wit: . . . cocaine allegation did not admit the type of drug). Convictions under California Health & Safety Code 11378 and 11377 are not categorically offenses relating to a controlled substance because the California schedule of controlled substances includes substances not federally regulated and, under Descamps, the Court may not use the modified categorical approach for these offenses because the identity of the drug involved in the offense is not an element of the offense. See Descamps v. United States, 133 S. Ct. 2276 (2013). Thanks to Michael Mehr.