(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).

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)).

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.")

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).

DIVISIBLE STATUTE - CONJUNCTIVE CHARGE
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (plea to counting charging noncitizen "did unlawfully, knowingly and intentionally deliver, to-wit: actually transfer, constructively transfer, and offer to sell a controlled substance, to-wit: COCAINE in an amount by aggregate weight, including any adulterants or dilutants of less than 28 grams ...." not sufficient to establish, for illegal re-entry sentencing purposes, that offense was a drug trafficking crime, since the plea may have been to the offense of offering to sell a controlled substance; "[a] disjunctive statute may be pleaded conjunctively and proven disjunctively."), internal citations omitted.

Note: after noting circuit split on this issue, the court resorted to examination of Texas criminal law.

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

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).

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).

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.