Aggravated Felonies

(A)  In General.  The second type of divisible statute is one which itself contains no subdivisions, but nonetheless contains a number of separate offenses, each of which has different essential elements necessary to constitute the offense.  This type of divisibility may occur within a single statute without subdivisions, or even within a single subdivision of a statute.  One important test for whether a statute is divisible in this sense is whether it is written in the disjunctive: the statute may be violated by doing A, or B, or C.  For example, one court stated:  “Since subdivision 11 is written in the disjunctive, it appears that the acts described therein are separable.”[134]  In this case, the purpose of the divisible statute analysis is to determine “which of a series of disjunctive elements a defendant’s conviction satisfies.”[135]

In California, one of the controlled substances statutes criminalizes sale, offer to sell, transportation for personal use, or gratuitous distribution.[136]  Each of these constitutes a different offense, despite the fact that they are all contained within California Health & Safety Code § 11360(a), which itself has no numbered subdivisions.

In United States v. Rivera-Sanchez,[137] the Ninth Circuit held that this statute is divisible because it includes several distinct offenses, each with different elements.  One of these is “offer to sell,” which the Ninth Circuit had previously held does not constitute a controlled substances offense or a drug-trafficking aggravated felony.[138]  Transportation has also been held not to be an aggravated felony, since it may be violated by transportation for personal use only, rather than for sale (thus failing the minimum conduct test), and there is no federal offense of transportation.[139]  If the record of conviction does not establish that the defendant pleaded guilty to a set of elements under the divisible statute that constitutes an aggravated felony, the conviction is not an aggravated felony for purposes of enhancing a sentence for illegal re-entry after deportation.[140]  A conviction for a violation of this divisible “sales” statute under California law will therefore be a “safe” non-aggravated felony plea so long as the record of conviction does not establish which of the several included offenses is the specific basis of conviction under the divisible statute. 

Another example is Calif. Vehicle Code § 10851, which defines “vehicle taking” as a taking with intent to deprive the owner of possession “permanently” (a CMT) or “temporarily” (not a CMT).[141]  Faced with this divisible statute, the court would be allowed to look to the charging documents and plea agreement or transcript to determine whether the noncitizen pleaded to the set of elements that includes a “permanent” taking or the set that includes a “temporary” taking.  If the record showed the defendant pleaded to temporary taking, the conviction is not a CMT.  If the record did not show which, the government cannot sustain the ground of removal.  Only if the record established permanent taking would the conviction be removable.

            When dealing with this type of divisible statute, the approach is the same as when the different subdivisions are separately numbered: the record of conviction is examined to determine elements was proved to sustain the conviction,[142] and then that set of elements is examined to determine whether the offense falls within the charged ground of removal.

[134] Matter of P, 3 I. & N. Dec. 290, 297 (BIA 1948); see also United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) (checking box on immigration form which has statement printed next to it saying that the noncitizen defendant was a U.S. citizen or national could not form basis for prosecution for falsely claiming citizenship under 18 U.S.C. § 911; “the district court violated a basic principle of criminal law by allowing the government to prove that an individual committed the charged offense by showing that he committed either that offense or some other act.”).

[135] United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (en banc).

[136] California Health & Safety Code § 11360(a).  The other California sales statutes, such as Health & Safety Code § 11352(a) (sale, distribution, or transportation of narcotics such as heroin and cocaine) and § 11377(a) (sale of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a)(marijuana).

[137] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001).

[138] Ibid., citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense under a statute that proscribed solicitation to commit any offense did not constitute a drug-related conviction).  

[139] United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999).  For a list of all federal controlled substance offenses, see Appendix E, infra.

[140] INA § 276(b)(2), 8 U.S.C. § 1326(b)(2).

[141] See Matter of VZS, 22 I. & N. Dec. 1338 (BIA 2000) (conviction under California Vehicle Code § 10851 is a theft offense so as to constitute an aggravated felony). 

[142] See, e.g., United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. Aug. 24, 2004) (court may look to indictment to determine which of a series of disjunctive elements defendant’s conviction satisfies in determining whether conviction is a “crime of violence”; as phrased, indictment did require proof of the use, attempted use or threatened use of physical force sufficient to find conviction was a crime of violence).