Second Circuit

DIVISIBLE STATUTE ANALYSIS - WHETHER STATUTE IS DIVISIBLE - MASSACHUSETTS STATUTE PROHIBITING ASSAULT ON POLICE OFFICER AND NUMEROUS OTHER PUBLIC OFFICIALS CONSTITUTED DIVISIBLE STATUTE
Blake v. Gonzales, ___ F.3d ___, ___, 2007 WL 914865 (2d Cir. March 28, 2007) (Massachusetts statute defining offense of assault on police officer and other categories of public official, Massachusetts General Laws chapter 265, section 13D, constituted divisible statute - allowing analysis of specific offense of assault on police officer, as distinguished from assault on other possible victims, because "the various categories of public safety officers protected by the statute are listed sequentially, each separated by a comma, and are phrased in the disjunctive."), quoting Canada v. Gonzales, 448 F.3d 560, 568 (2d Cir. 2006); see Abimbola v. Ashcroft, 378 F.3d 173, 177 (2d Cir. August 5, 2004) ("When the criminal statute at issue encompasses some classes of criminal acts that fall within the federal definition of aggravated felony and some classes that do not fall within the definition, the statute is considered divisible." (internal quotation marks omitted)).

DIVISIBLE STATUTE ANALYSIS - DISJUNCTIVE
Canada v. Gonzales, ___ F.3d ___, 2006 WL 1367367 (2d Cir. May 18, 2006) (rejecting petitioners claim that only statutes divisible into discreet subjection may be found divisible; divisible statutes include statutes applying the disjunctive or to identify separate sets of elements punished under the same statute), citing Singh v. Ashcroft, 383 F.3d 144, 163 (3d Cir. 2004) ("Since any statute that is phrased in the disjunctive can be readily converted to outline form, it would be strange to think that Congress intended the application of the categorical approach to turn upon the typography used by the statutes drafters.").

Third Circuit

DIVISIBLE STATUTES - THIRD CIRCUIT MISAPPLIES DISJUNCTIVE STATUTE ANALYSIS
Stubbs v. Attorney General, ___ F.3d ___, 2006 WL 1776462 (3d Cir. Jun. 29, 2006) (New Jersey conviction for "endangering welfare of children" under N.J. Stat. Ann. 2C:24-4(a) (who engages in sexual conduct that would impair morals of child under 16 or who causes child harm that would make child an abused or neglected child under New Jersey law) is under a divisible statute that includes multiple offenses, and thus invites consideration of the record of conviction). http://caselaw.lp.findlaw.com/data2/circs/3rd/044316p.pdf Although coming to a positive conclusion, the methodology applied by the Third Circuit in this case is arguably incorrect. The court first found that N.J. Stat. Ann. 2C:24-4(a) is divisible as a disjunctive statute, containing a set of elements requiring sexual conduct, and a second set of elements not requiring sexual conduct. Recognizing that the documents in the record of conviction are only referenced where a statute is divisible, the court then looked to the charging documents. However, in this case the court found that the "sexual" portion of the statute was categorically not an aggravated felony, since the minimum conduct punishable under that portion of the statute does not require sexual contact with a child, and thus cannot constitute sexual abuse of a minor. The court could (and should) have reached this conclusion before making reference to the record of conviction.

Fifth Circuit

NATURE OF CONVICTION - CONJUNCTIVE CHARGES
United States v. Gutierrez-Bautista, __ F.3d __, 2007 WL 3173614 (5th Cir. Oct. 31, 2007) (looking to Georgia law to determine whether a conjunctive charge of violating a disjunctive statute indicates a plea to "possession and sale" or "possession or sale"; finding that under Georgia law, a plea to a conjunctive charge is a plea to all averments of fact).

AGGRAVATED FELONY - AGGRAVATED BATTERY - CRIME OF VIOLENCE
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (Kansas conviction of aggravated battery under Kan. Stat. Ann. 21-3414(a)(1)(C), defined as intentional physical contact in any manner whereby great bodily harm, disfigurement or death can be inflicted, is not a crime of violence under 18 U.S.C. 16, and thus not an "aggravated felony" for immigration purposes, since this set of elements can be violated by conduct that does not present a substantial risk that offender will use physical force).

CATEGORICAL ANALYSIS - DIVISIBLE STATUTE
Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (where single subsection of criminal statute contains more than one sets of elements upon which conviction could be based, "modified categorical analysis" [i.e. examination of record of conviction] may be made to determine to which set of elements the noncitizen entered his plea in court).

RECORD OF CONVICTION - DISJUNCTIVE - SURPLUSAGE
Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. 2006) (BIA found conviction to be under one prong of a divisible statute because the judgment mentioned the use of a firearm, but the Fifth Circuit found it to be under another, based on the language of the complaint), compare Omari v. Gonzales, 419 F.3d 303, 309 n.10 (5th Cir. 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud" as recited in the statute, does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."); see also United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (the phrase in the charge describing how the offense was committed is only relevant for "notice" purposes, and cannot be considered in determining whether the offense is a crime of violence).

Lower Courts of Fifth Circuit

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGING
Kitchens v. State, 823 S.W.2d 256, 258 (Texas. Crim. App. 1991) (conjunctive pleading represents an alternative pleading of the differing methods of committing one offense" and allows the jury to return "a general verdict if the evidence is sufficient to support a finding under any of the theories submitted"). See also Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud" as recited in the statute, does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the corresponding statute, and this does not require either that the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty. See Valansi, 278 F.3d at 216 n.10; United States v. McCann, 465 F.2d 147, 162 (5th Cir. 1972)").

Eighth Circuit

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS
Alonzo v. Lynch,___ F.3d ___, 2016 WL 1612772 (8th Cir. Apr. 22, 2016) (Iowa convictions for domestic abuse assault, third or subsequent offense, in violation of Iowa Code Annotated 708.1, a divisible statute, did not categorically constitute crimes of moral turpitude, since a single conviction of that offense is not necessarily a crime of moral turpitude). See Cisneros"Guerrerro v. Holder, 774 F.3d 1056, 1061 (5th Cir. 2014). Note: The court noted, but made no decision on, the issue of whether conviction of multiple non-CMT offenses can arise to the level of a CMT. The court merely held that the statute was divisible, and the BIA therefore should have applied the modified categorical analysis.

Ninth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " PLEA TO COUNT CHARGED IN THE CONJUNCTIVE ESTABLISHES ONLY ONE OF THE ALTERNATIVE THEORIES
Young v. Holder, 697 F.3d 976 (9th Cir. Sept. 17, 2012) (en banc) (Under the modified categorical approach, a guilty plea to a conjunctive count does not necessarily admit every possible version of the crime. . . . [U]nder the modified categorical approach, when a conjunctively phrased charging document alleges several theories of the crime, a guilty plea establishes conviction under at least one of those theories, but not necessarily all of them. . . . In sum, when either A or B could support a conviction, a defendant who pleads guilty to a charging document alleging A and B admits only A or B. Thus, when the record of conviction consists only of a charging document that includes several theories of the crime, at least one of which would not qualify as a predicate conviction, then the record is inconclusive under the modified categorical approach.).

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " CONJUNCTIVE CHARGE
Hernandez-Cruz v. Holder, ___ F.3d ___, ___ n.14 (9th Cir. Jul.7, 2011) (The BIA apparently believed that Hernandez-Cruzs guilty plea admitted that he entered the building with the intent to commit larceny and the intent to commit some other felony. Although understandable, that conclusion is incorrect; under California law, Hernandez-Cruzs plea admitted that he had one of those intentions, but not necessarily both. See, e.g., People v. Moussabeck, 68 Cal. Rptr. 3d 877, 881-82 (Cal. Ct. App. 2007) ([W]hen the accusatory pleading describes the crime in its statutory language, but in the conjunctive (e.g., inflicted physical pain and mental suffering; inflicted corporal punishment and an injury), the allegation is treated as being in its statutory disjunctive. . . . [w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. (citation and quotation marks omitted, all but penultimate alteration in original)).).

CATEGORICAL ANALYSIS " CONJUNCTIVE CHARGE
United States v. Espinoza-Morales, 621 F.3d 1141, 1150 (9th Cir. Sept. 10, 2010) ("Even though the state charged Espinoza in the conjunctive-with accomplishing the penetration by means of force, violence duress, menace and fear-this charge could have supported a conviction based on duress alone."), citing In re Bushman, 463 P.2d 727, 732 (Ca. 1970).

CONVICTION - NATURE OF CONVICTION - DISJUNCTIVE COMPLAINT - MINUTE ORDER - MALTA - CONFLICT
Ngaeth v. Mukasey, 545 F.3d 796 (9th Cir. Sept. 24, 2009) (where a complaint was written in the disjunctive and the Ninth Circuit said, "but this minute order means he pled to all of it") Ngaeth doesn't mention Malta, so Malta isn't necessarily overturned, but there is a definite conflict.

ANALYSIS - DIVISIBLE STATUTE - CONJUNCTIVE CHARGE
United States v. Snellenberger, 548 F.3d 699 (9th Cir. Oct. 28, 2008) (per curiam) (en banc) (finding, in dictum, that a plea of no-contest to a charge phrased in the conjunctive (using "and") established conviction of all the conjunctive elements).

NATURE - CONJUNCTIVE/DISJUNCTIVE - MINIMUM CONDUCT
Malta-Espinoza v. Gonzales, __ F.3d __, 2007 WL 624532 (9th Cir. Mar. 2, 2007) ("It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts. See, e.g., United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ("Where a statute specifies to or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt."). All that we can gather from the charge and the bare record of a plea of guilty, therefore, is that Malta-Espinoza was guilty of either following or harassing or both. This fact need not affect our analysis, however, because under a categorical analysis we must determine whether the full range of conduct covered by the statute falls within the definition of crime of violence.") (emphasis added).

NOTE: Even if a reviewing court refuses to treat a conjunctive charge as divisible, Counsel can use this case to argue that where a charge was in the conjunctive, and the statute would otherwise be divisible, the minimum conduct analysis must be applied and the court must find that the offense does not trigger removal because the minimum conduct analysis, in the case of a conjunctive charge, requires examination of the least offense conduct, which would fall under the non-removable portion of the divisible statute.

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE CHARGE OF TWO DIFFERENT POSSIBLE ELEMENTS UNDER A DISJUNCTIVE STATUTE DOES NOT ESTABLISH CONVICTION OF BOTH, BUT ONLY ONE OR THE OTHER, BECAUSE PLEA ADMITS ONLY THOSE ELEMENTS NECESSARY FOR CONVICTION AND EITHER OF THE ELEMENTS WAS SUFFICIENT FOR CONVICTION UNDER THE STATUTE
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) (where the statute is framed in the disjunctive, e.g., harassment or following is sufficient for conviction, a plea to a charge phrased in the conjunctive, e.g., harassment and following, establishes conviction of harassment, or following, or both, because a plea of guilty admits only the elements of the charge necessary for a conviction and does not establish more than would have been established by a jury verdict of guilty on the charge), following United States v. Cazares, 121 F.3d 1241, 1247 (9th Cir. 1997); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir.1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt.").

DIVISIBLE STATUTE - ALTERNATIVE MEANS OF COMMITTING SINGLE OFFENSE - WEAPONS - FEDERAL - USE OF FIREARM DURING DRUG TRAFFICKING
United States v. Arreola, 467 F.3d 1153 (9th Cir. Nov. 8, 2006) (18 U.S.C. 924(c)(1)(A), punishing "any person who, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," describes two alternative means to commit a single offense).

AGGRAVATED FELONY - DRUG TRAFFICKING - A PLEA TO A DISJUNCTIVE CHARGE ALLEGING SALE OR TRANSPORTATION OR OFFER TO SELL UNDER A DIVISIBLE STATUTE DOES NOT UNEQUIVOCALLY ESTABLISH A DRUG TRAFFICKING CONVICTION
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) (California conviction of violating Health & Safety Code 11379(a), did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal reentry sentence under USSG 2L1.2(b)(1)(B), because the charge alleged sale or transportation or offer to sell methamphetamines in the disjunctive, and therefore a plea to that charge established only one of the three possible sets of elements, only one of which constituted a drug trafficking crime). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.

AGGRAVATED FELONY - DRUG TRAFFICKING - WHERE A CHARGE IS DISJUNCTIVE IN PART (ALLEGING SALE/TRANSPORTATION/OFFER TO SELL) AND CONJUNCTIVE IN PART, IT IS NOT "UNEQUIVOCALLY CLEAR" THAT THE DEFENDANT WAS PLEADING TO A DEPORTABLE OFFENSE UNDER A DIVISIBLE STATUTE
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006)(California conviction of violating Health & Safety Code 11379(a), did not constitute a drug trafficking conviction for purposes of triggering a 12-level enhancement of illegal reentry sentence under USSG 2L1.2(b)(1)(B), because the charge inconsistently alleged sale or transportation or offer to sell methamphetamines in the disjunctive, and also alleged those offenses in the conjunctive, and therefore was not "unequivocally clear" that the defendant was convicted of the single drug trafficking charge among the three alternative possible sets of elements of the statute and disjunctive allegations of the charge). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.

CONVICTION - PLEA - CONJUNCTIVE - A PLEA IN THE CONJUNCTIVE ESTABLISHES EACH FACT ALLEGED AS TRUE
United States v. Almazan-Becerra, 456 F.3d 949 (9th Cir. August 1, 2006) (a guilty plea to facts stated in the conjunctive establishes each factual allegation as true), following United States v. Smith, 390 F.3d 661, 665 (9th Cir. 2004). http://caselaw.lp.findlaw.com/data2/circs/9th/0510056p.pdf

Note: United States v. Almazan-Becerra, ___ F.3d ___, 2007 WL 926486 (9th Cir. March 29, 2007) (making minor changes to prior opinion regarding Booker issues - new opinion otherwise the same as prior), prior opinion cited at 456 F.3d 949 (9th Cir. Aug. 1, 2006) is hereby withdrawn.

DIVISIBLE STATUTE ANALYSIS - CONJUNCTIVE VS. DISJUNCTIVE CHARGING
The Ninth Circuit appears to be internally split on whether a charging document phrased in the conjunctive constitutes an admission of all the facts in the charge (i.e., a plea to a "permanent and temporary" taking necessary admits a permanent taking), or whether a plea to such language should be read in the disjunctive where the statute of conviction is disjunctive and the conjunctive charge is merely a device that allows the prosecution to prove either of the disjunctive options in the statute in order to convict (i.e., a plea to a "permanent and temporary" taking really means a plea to "permanent or temporary" taking, and the defendant is merely admitting that the taking was one or the other). Compare Malta-Espinoza v. Gonzales, 478 F.3d 1080 (9th Cir. Mar. 2, 2007) ("It is common to charge conjunctively when an underlying statute proscribes more than one act disjunctively; such a charge permits conviction upon proof that the defendant committed either of the conjunctively charged acts"); Omari v. Gonzales, 419 F.3d 303 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those acts conjunctively charged may establish guilt."); In re Bushman, 1 Cal.3d 767, 775 (1970) ("Where a statute such as a Penal Code section lists several acts in the disjunctive, any of which constitutes an offense, a complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. 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.") (citations omitted), with United States v. Aguila-Montes de Oca, 523 F.3d 1071 (9th Cir. Apr. 28, 2008) ("When a defendant pleads guilty ... to facts stated in the conjunctive, each factual allegation is taken as true. United States v. Williams, 47 F.3d 993, 995 (9th Cir. 1995) (citing Mathews, 833 F.2d at 164). The count in Aguila-Montes's complaint to which he pleaded guilty stated that he entered an inhabited dwelling house and trailer coach and inhabited portion of a building.... Therefore, Aguila-Montes admitted to entering not only a dwelling house, but also a trailer coach and the inhabited portion of a building."); United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857-858 (9th Cir. 2005); United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir. 2002) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997). The disjunctive reading clearly seems more in keeping with reality, since a conjunctive reading may often result in the defendant admitting to two or more different acts or mental states that are mutually exclusive, contradictory or impossible.