                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 17-2571
                                    _______________

                           MIGUEL GONZALEZ ESPINOZA,
                                          Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                        Respondent
                            _______________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                                (BIA No. A099-939-312)
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 19, 2018

       Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges

                              (Opinion Filed: July 26, 2018)
                                   _______________

                                       OPINION
                                    _______________




       *This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
FUENTES, Circuit Judge.

      Miguel Gonzalez Espinoza petitions for review of his final order of removal for a

controlled substance violation issued by the Board of Immigration Appeals (the “Board”).

For the reasons explained below, we will deny the petition.

                                                  I.

      Gonzalez Espinoza, a citizen of Mexico, has lived in the United States as a lawful

permanent resident since 2011. In 2013, Gonzalez Espinoza was charged with knowingly

or intentionally possessing a Schedule I controlled substance, XLR-11, under section

780-113(a)(16) of the Pennsylvania Controlled Substances Act (the “Act”). In 2016,

Gonzalez Espinoza was charged again under the same statute for knowingly or

intentionally possessing synthetic marijuana. In March 2016, Gonzalez Espinoza pled

guilty to each controlled substance charge.

      In October 2016, the Department of Homeland Security began removal

proceedings against Gonzalez Espinoza on the grounds that he was an alien, lawfully

admitted into the United States, convicted of a controlled substance violation under 8

U.S.C. section 1227 (a)(2)(B)(i).

      In a motion to terminate removal proceedings before the Immigration Judge,

Gonzalez Espinoza argued section 780-113(a)(16) of the Act was not categorically a

controlled substance violation under 8 U.S.C. section 1227(a)(2)(B)(i) . Further,

Gonzalez Espinoza argued section 780-113(a)(16) was indivisible, asserting the specific

substances involved in the statute were means, and not elements, of the offense, and

therefore, a judge could not appropriately apply the modified categorical approach.

                                              2
       The Immigration Judge rejected Gonzalez Espinoza’s arguments, finding section

780-113(a)(16) of the Act divisible. Consequently, the Immigration Judge applied the

modified categorical approach and found that Gonzalez Espinoza’s 2013 conviction was

for possessing XLR-11, a drug published in the Federal Schedule at 21 C.F.R section

1308(d)(49). As such, the Immigration Judge concluded that the statute of conviction in

Gonzalez Espinoza’s conviction was categorically a controlled substance offense under

section 1227 (a)(2)(B)(i), and thus, he was removable.

       On appeal to the Board, Gonzalez Espinoza argued that section 780-113(a)(16) is

indivisible. The Board rejected Gonzalez Espinoza’s argument and upheld the

Immigration Judge’s conclusion, stating that the relevant Pennsylvania statute is

divisible. The Board, like the Immigration Judge, did not consider Gonzalez Espinoza’s

2016 offense in its determination of removability. Gonzalez Espinoza timely filed a

petition for review.1

                                            II.

       The question before this Court is whether the Board erred in applying the

modified categorical approach and finding that Gonzalez Espinoza was convicted of a



1
  The Board exercised jurisdiction to review the Immigration Judge’s order of voluntary
departure under 8 C.F.R. sections 1003.1(b)(3); and 1240.15. We generally have
jurisdiction to review a final order of removal under 8 U.S.C. section 1252(a)(1).
However, because Gonzalez Espinoza is considered a criminal alien, the court is limited
in its review. Id. § 1252(a)(2)(C). In this case, the court maintains jurisdiction because
the petition raised a question of law. § 1252(a)(2)(D). We review such claims de novo.
Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010) (“The question of whether an
alien’s offense constitutes an aggravated felony is reviewed de novo as it implicates a
purely legal question that governs the appellate court’s jurisdiction.”).
                                             3
removable controlled substance offense. The answer to this question, and Gonzalez

Espinoza’s petition, hinges on whether subsection vii, synthetic cannabinoids, of

Schedule I of the Act is divisible.2 This requires the application of Mathis v. United

States, in which the Supreme Court outlined three ways for sentencing courts to

determine whether a statute is divisible or indivisible.3 For the following reasons, we will

deny Gonzalez Espinoza’s petition.

       The categorical approach enables a court to determine whether a statute of

conviction, in this case section 780-113(a)(16); referencing the Pennsylvania Controlled

Substances Schedules, matches or is narrower than the relevant generic offense, in this

case section 1227 (a)(2)(B)(i); referencing Federal Controlled Substances Schedules.4

When a statute is indivisible, or lists multiple factual means for committing a single

crime, the court employs a straightforward application of the categorical approach and

compares the elements of the statute of conviction to the generic offense.5 However,

when a statute is divisible and lists several, alternative elements (making separate

crimes), the court applies the modified categorical approach.6 “[This approach] permits a

court to determine which statutory phrase was the basis for the conviction.”7 Once the


2
  While the broader issue is whether section 780-113(a)(16) is divisible, Gonzalez
Espinoza focuses his argument almost entirely on whether the subsection of the Schedule
referenced in section 780-113(a)(16) is divisible. For this reason, we will focus our
analysis on the divisibility of section 780-104(1)(vii), synthetic cannabinoids.
3
  136 S. Ct. 2243, 2256 (2016).
4
  See Mathis, 136 S. Ct. at 2248.
5
  See id.
6
  See id. at 2249.
7
  Descamps v. United States, 570 U.S. 254, 263 (2013) (quoting Johnson v. United States,
559 U.S. 133, 144 (2010)).
                                             4
court has determined the statutory phrase of conviction, the court compares it with the

generic offense and decides if the two are a categorical match.8 Accordingly, if Gonzalez

Espinoza’s statute of conviction, referencing the Pennsylvania Controlled Substances

Schedules, matches section 1227 (a)(2)(B)(i), referencing the Federal Controlled

Substances Schedules, he is removable.9

       When a court is determining whether a statute is divisible, it should first establish

whether a state court decision answers the question.10 If the state courts are silent as to

the divisibility of the statute, the court should consider whether the statute on its face

resolves the issue.11 In the event the statute fails to establish divisibility, the court may

look to record of prior conviction itself.12

       Gonzalez Espinoza argues Pennsylvania state case law establishes that synthetic

cannabinoids is indivisible. In United States v. Henderson, we explained “as it pertains

to the delivery of controlled substances under section 780-113(a)(30), the Pennsylvania

Superior Court found that the specific type of drug used was an element of the offense;

not a means of committing the offense.”13 Moreover, we held such logic applied to

section 780-113(f)(1) of the Act.14 Gonzalez Espinoza argues the same logic cannot



8
  See Mathis, 136 S. Ct. at 2249.
9
  See Singh v. Att’y Gen., 839 F.3d 273, 278 (3d Cir. 2016).
10
   See Mathis, 136 S. Ct. at 2256.
11
   See id.
12
   See id.
13
   841 F.3d 623, 629 (3d Cir. 2016) (citing Commonwealth v. Swavely, 382 A.2d 946, 949
(Pa. Super. Ct. 1988) (noting that § 780-113(a)(30) criminalizes possession of a
controlled substance with intent to deliver)).
14
   See id. (noting that § 780-113(f)(1) criminalizes possession of heroin).
                                               5
extend to his offense under section 780-113(a)(16) of the Act. We disagree, seeing no

reason to think that possession of heroin under section 780-113(f)(1), as in Henderson, is

any different than possession of XLR-11 under section 780-113(a)(16). Therefore, we

hold that Pennsylvania case law has already established that synthetic cannabinoids is

divisible.

       Continuing in his application of Mathis, Gonzalez Espinoza argues that synthetic

cannabinoids is indivisible because it “is drafted to offer ‘illustrative examples,’” of ways

to commit the relevant crime.15 Gonzalez Espinoza claims XLR-11 is not a part of an

exhaustive and disjunctive list of banned substances, but is a mere “illustrative [example]

of how one might possess synthetic cannabinoids.”16 In reply, the Government rightly

points out that “a jury would have to conclude that [Gonzalez Espinoza], in fact,

possessed that specific drug which has been classified as a controlled substance in

Schedule I” of the Act.17 Moreover, we have held that the particular controlled

substances a jury bases its convictions on are “distinct elements of the crime; not means

of committing the crime.”18

       Gonzalez Espinoza also contends that the statute is facially indivisible because the

list of controlled substances in Schedule I of the Act contains non-exhaustive “catch-all”

provisions, like a prohibition on CB1 agonists. This fails to persuade because the



15
   136 S. Ct. at 2256 (quoting United States v. Howard, 742 F.3d 1334, 1348 (11th Cir.
2014)).
16
   Pet’r Br. 20.
17
   Henderson, 841 F.3d at 629.
18
   Id.
                                              6
prohibition on CB1 agonists describes a discrete type of controlled substances and is not

a limitless catch-all. The Schedules, their subsections, and their sub-subsections are

dependent on the ever-developing findings of pharmaceutical science. As such, there is

no telling how many more CB1 agonists may be discovered and when new CB1 agonists

may be discovered, but at all times the list is exhaustive in that pharmaceutical science

knows the entire “world” of CB1 agonists. Gonzalez Espinoza’s argument falls short in

light of this position, and for that reason, we conclude the Act does not facially establish

synthetic cannabinoids is indivisible.

       Finally, Gonzalez Espinoza argues his record of conviction establishes synthetic

cannabinoids is indivisible. Under Mathis, the Supreme Court explained federal judges

may take a “peek” at the record of conviction to determine whether a statute contains

elements or means.19 Further, the Court held if the record of conviction references a

“single umbrella term,” the items listed under the single umbrella term are means and not

elements.20 Gonzalez Espinoza claims that his 2016 charging document, which refers

generally to possession of synthetic cannabinoids proves synthetic cannabinoids is

indivisible.

       While Gonzalez Espinoza is correct that the charging document related to his 2016

offense refers generally to synthetic cannabinoids, without referencing a particular type

of synthetic cannabinoid, the Board and the Immigration Judge found Gonzalez Espinoza



19
   136 S. Ct. at 2256-57 (quoting Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir.
2015)).
20
   Id. at 2257.
                                              7
removable on the basis of his conviction related to his 2013 offense, where XLR-11 was

specified.21 Gonzalez Espinoza’s 2013 charging document references “one alternative

term to the exclusion of all others.”22 Under Mathis, such a record of conviction

confirms that synthetic cannabinoids “contains a list of elements, each one of which goes

toward a separate crime.”23

       On the whole, the modified categorical approach was applied appropriately.24

Because the court found Gonzalez Espinoza’s conviction was for a drug published in the

Federal Schedule, the Board correctly determined Gonzalez Espinoza was removable

under section 1227 (a)(2)(B)(i).

                                            III.

       For the foregoing reasons, we will deny Gonzalez Espinoza’s petition for review.




21
   See Singh, 807 F.3d at 550 n.4 (3d Cir. 2015) (“We decide the petition only on the
administrative record on which the order of removal is based, and defer to the
administrative findings of fact as conclusive[,] unless any reasonable adjudicator would
be compelled to conclude to the contrary.” (alteration in original) (internal quotations and
citations omitted)).
22
   Mathis, 136 S. Ct. at 2257.
23
   Id.
24
   The Petitioner also argued that, even if section (1)(vii) of the Pennsylvania Controlled
Substance Act is divisible, sub-subsection (1)(vii)(12)—tetramethylcylopropylindoles—
remains indivisible. This argument fails for reasons similar to his arguments regarding
divisibility of synthetic cannabinoids.
                                             8
