Criminal Defense of Immigrants

 

(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.[178]  One (and arguably the only) 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.[179]  For example, one court stated:  “Since subdivision 11 is written in the disjunctive, it appears that the acts described therein are separable.”[180]  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.”[181]  A statute may also be divisible in terms of the victim.[182]

 

In California, one of the controlled substances statutes criminalizes sale, offer to sell, transportation for personal use, or gratuitous distribution.[183]  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,[184] 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.[185]  Transportation has also been held not to be an aggravated felony, since it may be violated by transportation for personal use only, rather than transportation for sale (thus failing the minimum conduct test), and there is no federal offense of transportation.[186]  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.[187]  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. 

 

In Canada v. Gonzales,[188] the court found that a Connecticut statute punishing assault on a public safety officer was a divisible statute, since the court considered assault of a police officer as a categorical crime of violence under 18 U.S.C. § 16(b), but not necessarily assault of another type of peace officer.  The statute defined the types of people who could be considered “peace officers” in a long string of terms within a single subsection.  The court found that where the plea transcript shows the victim was, in fact, a police officer, the Government has met its burden of showing removability as an aggravated felon.

 

Another example is California 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).[189]  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 deportation.  Only if the record established permanent taking would the conviction be deportable.

 

                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,[190] and then that set of elements is examined using the minimum-conduct test to determine whether the offense falls within the charged ground of removal.

[178] See, e.g., Larin-Ulloa v. Gonzales, 462 F.3d 456 (5th Cir. Aug. 24, 2006) (where single subsection of criminal statute contains more than one set 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); 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).

[179] See, e.g., Canada v. Gonzales, 448 F.3d 560 (2d Cir. May 18, 2006) (rejecting petitioner’s claim that only statutes divisible into discreet subjections 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 statute’s drafters.”).

[180] 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.”).

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

[182] See, e.g., Blake v. Gonzales, 481 F.3d 152 (2d Cir. Mar. 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.”).

[183] California Health & Safety Code § 11360(a).  The other California sales statutes, such as Health & Safety Code § 11352(a) (sale, distribution, giving away, or transportation of narcotics such as heroin and cocaine) and § 11379(a) (sale, etc., of restricted dangerous drugs such as methamphetamines), are functionally identical to Health & Safety Code § 11360(a)(same for marijuana).

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

[185] 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).  

[186] 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.

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

[188] Canada v. Gonzales, 448 F.3d 560 (2d Cir. May 18, 2006).

[189] 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). 

[190] 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).