(B)

Multiple Means.  Some statutes punish a general offense that may be committed by means of a range of objects or methods.  Whether the offense triggers deportation, then, may depend upon the object in question.  For example, assault with a deadly weapon, or unlawful possession of a controlled substance.  In these cases, it is less clear whether divisible statute may be applied to determine the object in question. 

 

            In the simple possession context, it is generally accepted that the record of conviction can be examined to determine the substance possessed.[1]  In this context, the state and federal jurisdictions each have distinct schedules of substances which must be compared.  Although the state statute of conviction may only indicate, e.g., possession of a “controlled substance,” that term is defined elsewhere in the state statutes. 

 

            This, however, may not always be the case.  For example, California Penal Code § 245(a) formerly prohibited assault with a deadly weapon.  That term went undefined under the statute.[2]  In looking at the essential elements of the crime, as defined by statute, it was not possible to say that the minimum conduct necessary to constitute this offense involved a firearm, since it was perfectly possible to violate it by committing all the elements with a knife or baseball bat.  Under a strict analysis, which considers only the categorical analysis of the elements of the offense, a court cannot consider this to be a divisible statute, since it defines only one offense, even though the offense may be committed by a number of different means (or with a number of different objects).[3]

 

            The courts have considered the record of conviction, which includes the indictment, plea, verdict and sentence, only where the statute is divisible, for the purpose of determining under which section or clause of the statute the conviction occurred.[4]

 

            Counsel should argue, with this type of statute, that whether a gun or knife was used constitutes one of the facts of the case, rather than an essential element of the offense.  Therefore, a court should not look at the record of conviction under these circumstances to determine the facts of the offense which are not necessary to convict, since they are irrelevant to the categorical analysis.

[62] Matter of Paulus, 16 I. N. Dec. 274 (BIA 1965) (state controlled substances offense triggers removal only if the substance involve is included in the Federal controlled substances schedule).

[63] California Penal Code § 245 (1980).

[64] Hamdan v. INS, 98 F.3d 183 (5th Cir. 1996) (if the statute defining the offense of conviction encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain deportability finding on the basis of a conviction for violating that statute, unless the statute is divisible into discrete subsections of offenses that are and those that are not crimes involving moral turpitude, and the record of conviction establishes conviction of a subsection defining a deportable offense).

[65] Matter of R, 2 I. & N. Dec. 819, 826-827 (BIA 1947).

Fourth Circuit

CONVICTION " NATURE OF CONVICTION " CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS MAY NOT BE APPLIED TO INDIVISIBLE COMMON LAW OFFENSE
United States v. Montes-Flores, 736 F.3d 357 (4th Cir. Nov. 26, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature (the unlawful act of violent injury to another accompanied by circumstances of aggravation), was not categorically a crime of violence within the meaning of the residual clause of USSG 2L1.2(b)(1)(A)(ii) (2012) (any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another); the district court erroneously applied the modified categorical approach to this offense, which was an indivisible common law crime, because this offense can be committed with or without force"and even when force is involved, it can be committed in a violent or nonviolent manner); applying Descamps v. United States, 133 S.Ct. 2276 (June 20, 2013); see United States v. Hemingway, 734 F.3d 323, 330 (4th Cir. Oct. 31, 2013) (South Carolina conviction for assault and battery of a high and aggravated nature, was not categorically a crime of violence under the ACCAs residual clause). Note: While Descamps held open the question whether its analysis applies to common law crimes, as opposed to crimes defined by statute, this decision does apply the categorical analysis to common law offenses. We agree with our sister circuits that, when a state crime is defined by specific and identifiable common law elements, rather than by a specific statute, the common law definition of a crime serves as a functional equivalent of a statutory definition. Id. at 367 (internal quotations mark and citations omitted).

CATEGORICAL ANALYIS " DIVISIBLE STATUTE ANALYSIS " FIREARMS OFFENSES
United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013) (in federal conviction for possession of ammunition by an ex-felon, in violation of 18 U.S.C. 922(g)(1), defendant has burden of establishing as affirmative defense that bullets in question were designed exclusively for use in antique firearms).

Eighth Circuit

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

CATEGORICAL ANALYSIS " MODIFIED CATEGORICAL ANALYSIS " DIVISIBLE STATUTE
United States v. Tucker, 740 F.3d 1177 (8th Cir. Jan. 29, 2014) (under the Supreme Courts decision in Descamps, the court may not apply the modified categorical approach to a statute that is textually indivisible, such as the Missouri statute penalizing a walk-away escape from a half-way house, to hold the offense to be a crime of violence under the residual otherwise clause of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii), because there was a guard on duty when the escape occurred); partially overruling United States v. Parks, 620 F.3d 911 (8th Cir. 2010) (holding that a walk-away escape from a halfway house was a crime of violence under the Career Offender Guideline, applying the modified categorical approach to determine that Parkss escape offense posed a substantial risk of physical injury to another, because there was a guard on duty at the entrance of the halfway house when Parks walked away, even though the Missouri statute did not make this an element of the offense).

Ninth Circuit

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CATEGORICAL ANALYSIS " DIVISIBILITY " BURDEN " DEPUBLISHED DECISION
Marinelarena v. Sessions, 869 F.3d 780 (9th Cir. 2017) (Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), holding that a noncitizen cannot meet burden of demonstrating eligibility for cancellation of removal by establishing an inconclusive record, is not irreconcilable with Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), or Descamps v. United States, 133 S.Ct. 2276 (2013), and so remains good law), will be re-heard en banc. The prior decision shall not be cited as precedent.

CONVICTION -- NATURE OF CONVICTION " DIVISIBILITY
Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. Oct. 6, 2015) (California conviction of possession of child pornography, Penal Code 311.11(a), is not a divisible statute, since the jury is not required to find the exact nature of the sexual activity portrayed, so no resort may be had to the modified categorical analysis to determine whether the conviction qualified as a child pornography aggravated felony, under INA 101(a)(43)(I), 8 U.S.C. 1101(a)(43)(I)).

CRIMES OF MORAL TURPITUDE " UNAUTHORIZED DRIVING A VEHICLE " NOT A DIVISIBLE STATUTE
Almanza-Arenas v. Holder, ___ F.3d ___ (9th Cir. Nov. 10, 2014) (California conviction of violating Vehicle Code 10851(a), a statute that criminalizes both conduct that would constitute a crime of moral turpitude " taking a vehicle with intent permanently to deprive the owner, and conduct that does not amount to a crime of moral turpitude " intent temporarily to deprive the owner " is not a divisible statute, because it creates a minimum intent of at least temporarily depriving the owner of the property, rather than different offenses with different elements as to which the jury must unanimously agree; the immigration authorities may not apply the modified categorical analysis or consider the record of conviction, even in the context of inadmissibility and eligibility to apply for non-LPR cancellation of removal where the respondent bears the burden of proof).

CATEGORICAL ANALYSIS " DIVISIBLE STATUTE " INDIVISIBLE STATUTE
United States v. Cabrera-Gutierrez, ___ F.3d ___, 2014 WL 998173 (9th Cir. Mar. 17, 2014), withdrawing and superseding previous opinion on grant of panel rehearing (Oregon conviction of sexual abuse in the second degree, in violation of Or.Rev.Stat. 163.425, does not trigger a sentence for a federal conviction for failing to register under the Sex Offender Registration and Notification Act, 18 U.S.C. 2250, as a Tier III sex offender, because the Oregon statute is not divisible: The statute states a single, indivisible set of elements, and the modified categorical approach does not apply. Descamps, 133 S.Ct. at 2282; see also Acosta"Chavez, 727 F.3d at 909 (holding that where the state statute's age element is broader than the federal definition and is not divisible ... we may not apply the modified categorical approach).

CRIMES OF MORAL TURPITUDE " MODIFIED CATEGORICAL ANALYSIS
Saavedra-Figueroa v. Holder, 625 F.3d 621, 627-28 (9th Cir. Nov. 5, 2010) (Regardless of whether we may apply this approach in this case in light of our holding that misdemeanor false imprisonment lacks an element of the generic crime-see Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en banc)-the application of the modified categorical approach would make no difference. Although Saavedra-Figueroa admitted both section 236 misdemeanor convictions, there is no record evidence of the factual allegations underlying his second conviction. Accordingly, we cannot determine that the second conviction was based on a judicial determination of facts that fall within the federal generic definition of a CIMT. See Taylor v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).); citing Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007).

NATURE OF OFFENSE - MODIFIED CATEGORICAL ANALYSIS - COURT CANNOT GO OUTSIDE THE ELEMENTS OF THE OFFENSE OF CONVICTION
Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. Oct. 17. 2008) (en banc) (in evaluating the nature of the offense of conviction under the modified categorical analysis for removal purposes, the court cannot go outside the elements of the offense of conviction).

Other

NATURE OF CONVICTION " CATEGORICAL ANALYSIS " ELEMENTS " JURY UNANIMITY REQUIREMENT
United States v. Mathis, 136 S.Ct. 894 (2016),granting certiorari in 786 F.3d 1068 (8th Cir. 2015)