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.[1] 

 

            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.”[2] 

 

            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 party with the burden of proof[3] loses, i.e., the government cannot clearly show that the conviction was a firearms conviction, and the respondent cannot clearly show that it was not.  The same is true if the record of conviction establishes that the conviction must have been for either (2) [non-firearm] or (3) [firearm], but gives no further clarification.[4]  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,[5] and if the record of conviction revealed that the noncitizen was convicted under that subsection, the government cannot establish deportability.[6]

 

            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.  Before conviction, 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.

[18] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (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); 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).

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

[20] See § § 4.1, 5.1, supra.

[21] See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir. Nov. 15, 2006) (“The administrative record before us does not specify whether Fernandez-Ruiz pleaded guilty to subsection (A)(1) or (A)(2). (Footnote 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.”); 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).

[22] See § 6.6, supra.

[23] 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).

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.).

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.")

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).