Tellez-Ramirez v. Garland

87 F.4th 424

Omar TELLEZ-RAMIREZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-1168

United States Court of Appeals, Ninth Circuit

Argued and Submitted July 12, 2023 Seattle, Washington

Filed November 29, 2023

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX3-335

Neal F. Dougherty (argued), Ramirez-Smith Law, Nampa, Idaho, for Petitioner.

Rebekah Nahas (argued), Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: Susan P. Graber, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Petitioner Omar Tellez-Ramirez is a native and citizen of Mexico. He was admitted to the United States as a lawful permanent resident in 2002. But in 2019, a jury convicted him of possessing methamphetamine, a controlled substance, with intent to deliver, in violation of Idaho Code section 37-2732(a)(1)(A). The Department of Homeland Security initiated removal proceedings in 2021, charging that Petitioner is removable (1) under 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony related to illicit trafficking in a controlled substance, and (2) under 8 U.S.C. § 1227(a)(2)(B)(i), for having been convicted of violating a state law relating to a controlled substance.

Petitioner filed a motion to terminate proceedings, asserting that his conviction is neither for an aggravated felony nor for a crime related to a controlled substance. The immigration judge disagreed and ordered Petitioner's removal. The Board of Immigration Appeals ("BIA") dismissed Petitioner's appeal. It held that Petitioner's conviction qualifies as an aggravated felony, falling "under the 'drug trafficking crime' prong of the aggravated felony definition" found in 8 U.S.C. § 1101(a)(43)(B).

Petitioner timely seeks review of the final order of removal. He did not apply for any form of relief or protection, so the sole question before us is whether Petitioner's conviction under Idaho law is an aggravated felony. Reviewing de novo the questions of law presented here, Valdez v. Garland, 28 F.4th 72, 76-77 (9th Cir. 2022), we hold that Petitioner's conviction under Idaho law is an aggravated felony and, accordingly, we deny the petition.

A. Petitioner's Conviction Is a Match for Drug Type Under the Modified Categorical Approach Because the State Statute Is Divisible by Drug Type.

"[T]he government may order the removal of noncitizens who have committed crimes classified as 'aggravated felonies.' " Alfred v. Garland, 64 F.4th 1025, 1030 (9th Cir. 2023) (en banc) (citations omitted). "[I]llicit trafficking in a controlled substance" is an aggravated felony under the Immigration and Nationality Act. 8 U.S.C. § 1101(a)(43)(B). To determine whether a state statute defining the crime of conviction counts as an aggravated felony, we first employ the categorical approach. Alfred, 64 F.4th at 1031.

Under the categorical approach, we compare the elements of the state crime in question to the elements of the corresponding federal offense. United States v. Vega-Ortiz, 822 F.3d 1031, 1034 (9th Cir. 2016). If the elements in the state statute are broader than the elements in its federal counterpart, the conviction does not qualify as an aggravated felony under the categorical approach. Id. Here, the Idaho statute is not a categorical match because it prohibits more substances than its federal counterpart. Compare, e.g., Idaho Code § 37-2713A(b)(2) (including butyl nitrite), with 21 U.S.C. § 812, and 21 C.F.R. §§ 1308.11-.15 (not including butyl nitrite).¹ Therefore, we next apply the "modified categorical approach." Vega-Ortiz, 822 F.3d at 1034.

The modified categorical approach applies only when the statute is "divisible." Rendon v. Holder, 764 F.3d 1077, 1083 (9th Cir. 2014) (citing Descamps v. United States, 570 U.S. 254, 263, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)). A statute is divisible when it lists alternative "elements," effectively creating separate crimes, as distinct from listing different means of committing a single crime. Descamps, 570 U.S. at 264, 133 S.Ct. 2276; see United States v. Linehan, 56 F.4th 693, 700 (9th Cir. 2022) (if a statute lists only " 'alternative means of committing the same crime,' it is not divisible" (quoting Almanza-Arenas v. Lynch, 815 F.3d 469, 478 (9th Cir. 2016) (en banc))), cert. denied, No. 23-5076, — U.S. —, — S.Ct. —, — L.Ed.2d —, 2023 WL 6378674 (U.S. Oct. 2, 2023). " 'Elements' are the 'constituent parts' of a crime's legal definition—the things the 'prosecution must prove to sustain a conviction.' " Mathis v. United States, 579 U.S. 500, 504, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016) (quoting Black's Law Dictionary 634 (10th ed. 2014)). If the alternatives are elements, we can review a limited set of documents in the record to find the applicable alternative that was the crime of conviction and then compare that alternative to the generic federal crime. Id. at 517, 136 S.Ct. 2243.

Idaho Code section 37-2732 provides in relevant part:

(a) Except as authorized by this chapter, it is unlawful for any person to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.

(1) Any person who violates this subsection with respect to:

(A) A controlled substance classified in schedule I which is a narcotic drug or a controlled substance classified in schedule II, except as provided for in section 37-2732B(a)(3), Idaho Code, is guilty of a felony and upon conviction may be imprisoned for a term of years not to exceed life imprisonment, or fined not more than twenty-five thousand dollars ($25,000), or both;

(B) Any other controlled substance which is a nonnarcotic drug classified in schedule I, or a controlled substance classified in schedule III, is guilty of a felony and upon conviction may be imprisoned for not more than five (5) years, fined not more than fifteen thousand dollars ($15,000), or both;

(C) A substance classified in schedule IV is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, fined not more than ten thousand dollars ($10,000), or both;

(D) A substance classified in schedules V and VI is guilty of a misdemeanor and upon conviction may be imprisoned for not more than one (1) year, fined not more than five thousand dollars ($5,000), or both.

Idaho Code § 37-2732(a)(1)(A)-(D). Petitioner argues that under Idaho Code section 37-2732(a)(1)(A)—his crime of conviction—the different drug types are merely means of committing a single crime, so the statute is not divisible by the identity of the controlled substance and the modified categorical approach does not apply. We reject his contention.

As an initial matter, Petitioner argues that we may examine only the subsection under which he was convicted, in isolation, to determine whether statutory alternatives carry different punishments; he notes that all crimes in that subsection, subsection (a)(1)(A), are subject to the same punishment. That focus is too narrow. We can examine all subsections in the same statute to analyze the divisibility question, even when the petitioner stands convicted under only one subsection. See Lopez-Marroquin v. Garland, 9 F.4th 1067, 1072 (9th Cir. 2021) (examining subsections (b) and (d) of California Vehicle Code section 10851 to determine whether the petitioner's offense was a "means" of committing a single offense of vehicle theft under section 10851(a)).

We begin with the text of the statute. On its face, the statute supports the conclusion that it is divisible by type of drug. "If statutory alternatives carry different punishments, . . . they must be elements." Mathis, 579 U.S. at 518, 136 S.Ct. 2243 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Each of the subsections of Idaho Code section 37-2732(a)(1) imposes a different term of imprisonment depending on where the substance falls within the Idaho drug schedules. The identity of the drug, in turn, governs the schedule on which the drug is placed. For example, because Idaho classifies methamphetamine as a Schedule II drug, Idaho Code § 37-2707(d)(3), a conviction for possession with intent to deliver carries a maximum term of imprisonment for life, id. § 37-2732(a)(1)(A). By comparison, buprenorphine—a drug used for recovery from heroin addiction—is listed under Schedule III, id. § 37-2709(e)(2)(i), and thus a conviction for possession with intent to deliver it carries a maximum term of imprisonment of five years, id. § 37-2732(a)(1)(B). The statute is divisible as to the identity of the controlled substance because, just as we held with respect to a similar crime under California law, the Idaho statute "identifies a number of controlled substances by referencing various [Idaho] drug schedules . . . and criminalizes the possession of any one of those substances[,] . . . creat[ing] several different . . . crimes." Coronado v. Holder, 759 F.3d 977, 984-85 (9th Cir. 2014) (third ellipsis in original) (citations and internal quotation marks omitted).

Decisions of the Idaho Supreme Court support our conclusion that the statute is divisible as to drug type. See Mathis, 579 U.S. at 517-18, 136 S.Ct. 2243 (holding that state-court decisions may inform the question of divisibility). In State v. Tucker, 131 Idaho 174, 953 P.2d 614 (1998), the Idaho Supreme Court held that "the jury had to find that Tucker possessed methamphetamine to convict Tucker of the crime charged." Id. at 617 (emphasis added). And in State v. Blake, 133 Idaho 237, 985 P.2d 117 (1999), the court held: "To establish Blake's guilt, the State must prove that Blake knowingly possessed methamphetamine and knowingly possessed cocaine." Id. at 122 (emphasis added). Notably, those two substances are covered by the same subsection of the statute. Accordingly, even if we were limited to looking at subsection (a)(1)(A), Petitioner's...