     Case: 15-60183      Document: 00513831253         Page: 1    Date Filed: 01/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60183                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JORGE IBANEZ-BELTRAN,                                                    January 11, 2017
                                                                           Lyle W. Cayce
              Petitioner                                                        Clerk

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A077 187 038


Before JONES, BARKSDALE, and COSTA, Circuit Judges.
PER CURIAM:*
       The Government charged Jorge Ibanez-Beltran, a citizen of Mexico, with
being removable from this country, due in part to his Arizona conviction for
attempted transportation of marijuana for sale under Arizona Revised Statute
Section 13-3405(A)(4). Ibanez-Beltran concedes that this offense makes him
removable, but denies that it also qualifies as an aggravated felony that makes
him ineligible for cancellation of removal. He argues that the Arizona statute



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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is neither a categorical match to a qualifying federal drug trafficking offense
nor divisible. We must decide whether section 13-3405(A)(4) is divisible, and,
if so, whether the modified categorical approach confirms that Ibanez-Beltran
was convicted of an aggravated felony.
                                        ***
      Ibanez-Beltran was placed in removal proceedings after his conviction
under Arizona Revised Statute Section 13-3405(A)(4). The statute states that
a “person shall not knowingly . . . [t]ransport for sale, import into this state or
offer to transport for sale or import into this state, sell, transfer or offer to sell
or transfer marijuana.” A.R.S. § 13-3405(A)(4). His indictment charged all of
these provisions, but his plea document and judgment listed only “attempted
transportation of marijuana for sale.”
      Ibanez-Beltran conceded he was removable for violating a state law
relating to a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), but he
denied being ineligible for relief on the grounds that his marijuana conviction
qualified as an aggravated felony, 8 U.S.C. § 1101(a)(43)(B). The Immigration
Judge disagreed, concluding that Ibanez-Beltran was ineligible for relief
because his Arizona conviction was an aggravated felony.                   8 U.S.C.
§ 1229b(a)(3). The Board of Immigration Appeals affirmed.
      An aggravated felony is defined by a long list of offenses that includes
“illicit trafficking in a controlled substance, including a drug trafficking crime.”
8 U.S.C. § 1101(a)(43)(B).      An offense is a drug trafficking crime if it is
punishable as a felony under the federal Controlled Substances Act (CSA). 18
U.S.C. § 924(c)(2); 21 U.S.C. § 801 et seq. An offense is a felony under the CSA
if it is punishable by imprisonment of more than one year.                21 U.S.C.
§§ 802(13), (44). The government argues that Ibanez-Beltran was convicted of
“attempted transportation of marijuana for sale” under Arizona law. The
federal counterpart for attempted transportation of marijuana is punishable
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by imprisonment of more than one year. 21 U.S.C. §§ 841(b)(1)(D), 846. This
means that if Ibanez-Beltran was convicted of the state offense of “attempted
transportation of marijuana for sale,” he was convicted of an aggravated felony.
      Ibanez-Beltran counters that because the Arizona statute of conviction
includes solicitation offenses, namely “offer to transport,” the statute is not a
categorical match to the federal drug trafficking offense. He further argues
that his statute is not divisible. That would mean Ibanez-Beltran was not
convicted of an aggravated felony and the Board of Immigration Appeals erred
in deeming him ineligible to request cancellation of removal.
      When determining whether a prior offense qualifies as an aggravated
felony, we first apply the categorical approach, asking whether the state
criminal offense lines up with the corresponding aggravated felony, which here
is attempted drug trafficking. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013). That determination is made by comparing the elements of the state
offense with the elements of the federal drug trafficking offense. Id.; Taylor v.
United States, 495 U.S. 575, 600–01 (1990).                 That comparison is
straightforward when a statute sets out a single set of elements to define a
single crime.
      Here the comparison is not so simple because Ibanez-Beltran’s statute of
conviction lists multiple actus rei. The statutory provision states that a person
shall not knowingly: 1) transport [marijuana] for sale; 2) import [marijuana]
into this state; 3) offer to transport [marijuana] for sale; 4) offer to import
[marijuana] into this state; 5) sell [marijuana]; 6) transfer [marijuana]; 7) offer
to sell [marijuana]; or 8) offer to transfer [marijuana]. A.R.S. § 13-3405(A)(4)
(numbering added). The government conceded that the statute as a whole is
not a categorical match to the federal offense of drug trafficking, because it
lists solicitation offenses that are not covered in the federal definition. United
States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010) (“The government
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concedes that a mere offer to sell, without evidence of possession or transfer, is
tantamount to solicitation and is not proscribed by the [CSA].”). Our decision
thus comes down to whether the modified categorical approach can be used to
narrow Ibanez-Beltran’s conviction to attempted transportation of marijuana
for sale, which would be a felony under the federal drug laws.
      The modified categorical approach allows courts to examine “a limited
class of documents” from the record to determine whether the defendant was
convicted of an offense that matches the corresponding federal offense.
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Courts may only use
the modified approach, though, when the statute of conviction is divisible. A
statute is divisible when it defines multiple crimes by listing elements in the
alternative instead of listing various factual means of committing a single
crime. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). Our task
when determining whether a statute is divisible, then, “is to determine
whether ‘listed items’ in a statute ‘are elements or means.’” United States v.
Hinkle, 832 F.3d 569, 575 (5th Cir. 2016) (quoting Mathis, 136 S. Ct. at 2256).
This ultimately turns on whether a jury would have to agree on whether the
defendant completed that action. Id. (“When a jury is not required to agree on
the way that a particular requirement of an offense is met, the way of satisfying
that requirement is a means of committing an offense, not an element of the
offense.”).   When state court decisions definitively answer whether jury
unanimity is required, courts “need only follow what [they say].” Mathis, 136
S. Ct. at 2256.
      Arizona case law does not provide that definitive answer here. Some
state law decisions indicate that section 13-3405(A)(4) sets out multiple
alternative offenses. For example, State v. Fierro lays out elements for the
“offense of transportation of marijuana for sale.” 206 P.3d 786, 789 (Ariz. Ct.
App. 2008). And State v. Chabolla-Hinojosa notes that the defendant was
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convicted of both importation of marijuana and transportation of marijuana.
965 P.2d 94, 95 (Ariz. Ct. App. 1998); see also State v. Alvarado, 875 P.2d 198,
200 (Ariz. Ct. App. 1994) (noting that defendant was convicted of “offering to
sell marijuana”); State v. Hans, 2008 WL 4261034, at *4 (Ariz. Ct. App. 2008);
but see State v. Medina, 2016 WL 489838, at *1 (Ariz. Ct. App. 2016) (affirming
defendant’s conviction for “sale or transportation of marijuana”). These courts’
treatment of section 13-3405(A)(4) suggests that the statute is divisible. 1
       But some Arizona decisions interpreting similar statutes point in the
other direction. Arizona courts have assumed that the legislature does not
intend to create more offenses than those listed in the heading of a statute.
State v. Brown, 177 P.3d 878, 881 (Ariz. Ct. App. 2008) (citing State v. Dixon,
622 P.2d 501, 508 (Ariz. Ct. App. 1980)). Instead, courts in Arizona assume
that if the legislature intended to create separate offenses, it would have
enacted separate subparts as it did in other parts of section 13-3405(A). See
State v. Manzanedo, 110 P.3d 1026, 1028 (Ariz. Ct. App. 2005). The heading
of section 13-3405 reads: “Possession, use, production, sale or transportation of
marijuana.” Although this heading implies that sale and transportation are
separate offenses, it cuts against finding that the other terms, for example
“offer to transport,” are themselves separate offenses. Instead, they could be
alternative means to commit either sale of marijuana or transportation of
marijuana.




       1 The Supreme Court of Arizona has recognized that the separate subsections of this
drug statute create different offenses. State v. Cota, 191 Ariz. 380, 382, 956 P.2d 507, 509
(1998) (“[T]he relevant statutes distinguish between the separate crimes of ‘transfer,’ on the
one hand, and ‘possession,’ on the other.” (citing A.R.S. § 13-3405(A)(1); id. § 13-3405(A)(4)).
It has not directly addressed the question we confront: whether the various terms listed
within a particular subsection (in Ibanez-Beltran’s case, subsection (A)(4)) also create
separate offenses.
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      And an Arizona court has held that solicitation terms in a similarly
worded statute were alternative means, not elements, to commit the offense.
In Brown, the court examined an almost identically worded statute that
prohibited the knowing “[t]ransport for sale, import into this state, offer to
transport for sale or import into this state, sell, transfer or offer to sell or
transfer a narcotic drug.” A.R.S. § 13-3408(A)(7); see Brown, 177 P.3d at 881–
82. 2 The court focused on whether “sell, transfer or offer to sell or transfer”
were separate offenses or alternative means to commit the same offense.
Brown, 177 P.3d at 881–82 (quoting A.R.S. § 13-3408(A)(7)). It noted that
section 13-3408’s heading mentioned “‘sale’ . . . of narcotic drugs” but did not
reference transfer, offer to sell, or offer to transfer. Id. at 881. Assuming that
the legislature did not intend to create more offenses than those listed in the
heading, the court held that the relevant phrase referred to different ways of
committing the same offense. Id. at 882. In other words, the legislature did
not view the solicitation terms as creating separate offenses.
      So Arizona state law does not give us a clear answer on the construction
of section 13-3405(A)(4). But Mathis provides us with another tool when state
judicial decisions do not furnish an answer; we may look to the record of the
prior conviction for “the sole and limited purpose of determining whether the
listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256–57.
Ibanez-Beltran’s plea agreement and judgment treats the terms in section 13-
3405(A)(4) as elements of alternative offenses. Although the indictment simply
listed all of the conduct contained in the statute, Ibanez-Beltran actually
pleaded guilty to “attempted transportation of marijuana for sale.” When the
relevant documents use one alternative term to the exclusion of all others, that



      2  Section 13-3408(A)(7) is identical to section 13-3405(A)(4), except section 13-
3408(A)(7) targets narcotic drugs rather than marijuana.
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indicates that the terms within the statute are individual elements. Id. at
2257.
        Reinforcing the plea agreement’s treatment of transport for sale as a
separate offense is Arizona’s pattern jury charge. See id. at 2257 (mentioning
jury instructions as a source to determine divisibility); see also United States
v. Martinez-Vidana, 825 F.3d 272, 274 (5th Cir. 2016) (considering a pattern
jury instruction to determine the divisibility of a statute). There are separate
pattern instructions for transport for sale and offer to transport for sale.
Compare REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0541 (3d ed.), with
REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0542 (3d ed.).
        The plea agreement, judgment, and instructions are enough, without
settled state law to the contrary, to hold that section 13-3405(A)(4) is divisible.
Because the statute is divisible, the modified categorical approach narrows
Ibanez-Beltran’s offense to “attempted transportation of marijuana for sale.”
As discussed, that offense also constitutes a felony under the federal drug laws,
making it a drug trafficking crime, which is an aggravated felony under section
1101(a)(43)(B).
                                       ***
        The petition for review is DENIED.




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