                                                                               FILED
                                                                   United States Court of Appeals
                                        PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       July 31, 2020

                                                                       Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                          Clerk of Court
                        _________________________________

 EVERETTE LIVINGSTON JOHNSON,
 a/k/a Everette Burns, a/k/a Everette Allen,

       Petitioner,

 v.                                                         No. 19-9550

 WILLIAM P. BARR, United States
 Attorney General,

       Respondent.
                        _________________________________

                       Petition for Review of an Order from the
                             Board of Immigration Appeals
                        _________________________________

Joshua Mitson (Hans Meyer, with him on the briefs), , Meyer Law Office P.C., Denver,
Colorado, for Petitioner Everett Johnson.

Kohsei Ugumori, Senior Litigation Counsel (Joseph H. Hunt, Assistant Attorney General,
and Emily Anne Radford, Assistant Director, with him on the brief), Office of
Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.,
for Respondent.
                        _________________________________

Before BACHARACH and CARSON, Circuit Judges.1
                 _________________________________


      1
         The late Honorable Monroe G. McKay, United States Senior Circuit Judge,
heard oral argument and participated in the panel’s conference of this appeal, but
passed away before its final resolution. The practice of this court permits the
remaining two panel judges, if in agreement, to act as a quorum in resolving the
appeal. United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997); 28 U.S.C.
§ 46(d).
CARSON, Circuit Judge.
                    _________________________________

      Petitioner Everett Johnson, a citizen of the Bahamas, became a United States

permanent resident in 1977. But in 2016, he pleaded guilty to possessing a schedule

II controlled substance in violation of Colorado law. Soon after, the Department of

Homeland Security (DHS) charged Johnson as removable from the United States

based on the state drug conviction. The Board of Immigration Appeals (BIA) then

ordered Johnson’s removal from the United States back to the Bahamas. Johnson

now petitions for review of that decision.

      Our jurisdiction arises under 8 U.S.C. § 1252. We address whether Johnson’s

state drug conviction under the 2016 version of Colorado Revised Statute (C.R.S.)

§ 18-18-403.5(1), (2)(a) subjects him to deportation from the United States. Because

C.R.S. § 18-18-403.5(1), (2)(a) is overbroad and indivisible as to the identity of a

particular controlled substance, Johnson’s conviction cannot subject him to removal

from the United States. We therefore grant Johnson’s petition for review, vacate the

BIA’s order, and remand to the BIA for further proceedings consistent with this

opinion.

                                                 I.

      After pleading guilty to possessing hydrocodone, a schedule II controlled

substance under Colorado law, DHS initiated removal proceedings against Johnson.

DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(B)(i), a provision in the

Immigration and Nationality Act that authorizes removing an alien for a state law

                                             2
conviction “relat[ed] to a controlled substance (as defined in section 802 of Title

21).”

        Johnson moved to terminate the removal proceedings before an immigration

judge. He argued that under the categorical/modified categorical approach as

established by the United States Supreme Court, his state drug conviction did not

qualify as a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i). Johnson claimed

that C.R.S. § 18-18-403.5(1), (2)(a) was broader than its federal counterpart, the

Controlled Substances Act, 21 U.S.C. § 801, et seq. (the CSA). More specifically,

Johnson asserted that the Colorado statute was overbroad because it criminalized

possessing a substance called morpholine—a substance the CSA does not

criminalize.

        The Immigration Judge (IJ) denied Johnson’s motion to terminate. The IJ

concluded that even though the Colorado statute criminalized possessing more

substances than federal law, it was divisible rather than indivisible, permitting

application of the modified categorical approach. The modified categorical approach

allows a court to examine a limited category of court records, including the charging

document, jury instructions, and plea agreement, to determine which specific crime

the defendant committed. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

And after reviewing Johnson’s conviction record, the IJ determined that DHS could

remove Johnson because he pleaded guilty to possessing a substance prohibited by

both the Colorado statute and the CSA.



                                           3
      Johnson appealed to the BIA. The BIA agreed with the IJ that the Colorado

statute was overbroad and thus did not categorically constitute a removable offense

under federal law. But the BIA likewise determined that the statute was divisible and

applied the modified categorical approach. And after reviewing Johnson’s actual

conviction record, the BIA dismissed Johnson’s appeal and ordered him removed to

the Bahamas.

      When reviewing a BIA ruling, we review legal issues de novo, including

whether a statute of conviction is divisible under the modified categorical approach.

Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018).

                                           II.

      The Immigration and Nationality Act authorizes the removal of an alien

convicted of violating a state law “relating to a controlled substance (as defined in

section 802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). No one disputes that Johnson

violated Colorado state law. Instead, the parties dispute whether Johnson’s state law

violation subjects him to deportation as a violation “relating to a controlled

substance.” We must therefore determine whether Johnson’s Colorado drug

conviction qualifies as a violation of state law “relating to a controlled substance,” as

defined in the CSA.

      We begin by applying the categorical approach to “assess whether [Johnson’s]

state drug conviction triggers removal under the immigration statute.” Mellouli v.

Lynch, 135 S. Ct. 1980, 1986, 1987 (2015). Under the categorical approach, a state

drug conviction cannot qualify as a basis for removal if the state statute’s elements

                                            4
are broader than the federal analogue. Descamps v. United States, 570 U.S. 254, 257

(2013); Mathis, 136 S. Ct. at 2251. Here, we look specifically at whether the

Colorado drug statute criminalizes more substances than “defined in section 802 of

Title 21,” i.e., the federal CSA. If it does, then the Colorado statute is “overbroad,”

and no “categorical match” exists between the Colorado statute and its federal

analogue. Descamps, 570 U.S. at 276–77.

       We agree with the parties that C.R.S. § 18-18-403.5 is broader than the CSA

because the Colorado statute criminalizes possessing morpholine, while the CSA

does not. And because the Colorado statute criminalizes a wider breadth of activity

than the CSA, no “categorical match” exists between the Colorado statute and its

federal analogue. Id.

       Our inquiry, however, does not end just because the statute is overbroad.

Instead, we must next consider whether the overbroad statute is divisible—that is,

whether it “comprises multiple, alternative versions of the crime.” Id. at 262. If the

alternatives are “elements,” then the statute is divisible, and we apply the modified

categorical approach. Id. The modified categorical approach acts “as a tool” to

determine which version of the crime underlies the defendant’s conviction. Id. at

263.

       Elements “are the constituent parts of a crime’s legal definition” that “the

prosecution must prove” and “what the jury must find beyond a reasonable doubt to

convict the defendant.” Mathis, 136 S. Ct. at 2248 (internal quotation marks and

citation omitted). “Means,” on the other hand, merely describe “[h]ow a given

                                           5
defendant actually perpetrated the crime.” Id. at 2251. Where a statute lists “diverse

means of satisfying a single element,” or “spells out various factual ways of

committing some component of the offense,” then such “means” are legally

extraneous circumstances that do not constitute elements. Id. at 2249. If the statute

lists alternative means rather than elements, then we do not apply the modified

categorical approach, and the state conviction cannot qualify as a predicate to

removal from the United States. See id. at 2251.

      Having concluded that C.R.S. § 18-18-403.5(1), (2)(a) criminalizes more

substances than the federal CSA and is thus “overbroad,” we now address whether

the Colorado statute is divisible.

                                          III.

      This case turns on whether the Colorado statute is divisible as to the identity of

the particular controlled substance (here, hydrocodone). In other words, we must

analyze whether the specific controlled substance is an “element” under C.R.S. § 18-

18-403.5(1), (2)(a) or merely a “means” of committing the offense. If the specific

controlled substance is merely a means of committing the offense, then the statute

cannot serve as a basis for removal. Mathis, 136 S. Ct. at 2255–57; United States v.

McKibbon, 878 F.3d 967, 974–76 (10th Cir. 2017). If, however, the specific identity

of the controlled substance is an element, then neither party disputes that Johnson’s

actual crime of conviction matches the CSA.2


      2
        Johnson pleaded guilty to possessing hydrocodone, a schedule II substance,
the possession of which is prohibited by both the Colorado statute and the CSA.
                                           6
      The Supreme Court recognizes several authoritative state law sources that may

determine whether a statute is divisible. Mathis, 136 S. Ct. at 2256. These include

the statute itself, the punishments for different offenses under the statute, and state

case law. Id. at 2255–57. Only if these sources fail “to provide clear answers,” may

we then look to Johnson’s actual record of conviction. Id. at 2256.

                                             A.

      We begin with the statutory text. The relevant statute of conviction states that

“it is unlawful for a person knowingly to possess a controlled substance.” Colo. Rev.

Stat. § 18-18-403.5(1). Any person possessing:

      any material, compound, mixture, or preparation that contains any
      quantity of flunitrazepam; ketamine; gamma hydroxybutyrate, including
      its salts, isomers, and salts of isomers; cathinones; or more than four
      grams of a controlled substance listed in schedule I or II of part 2 of this
      article 18 commits a level 4 drug felony.

Id. § 18-18-403.5(2)(a) (emphasis added). According to the government, this

statutory language makes possessing the specific substance hydrocodone an element

of Johnson’s conviction. Johnson, on the other hand, contends that hydrocodone was

not an element, but a means of satisfying the possession of a controlled substance

element.

      The statutory language suggests that the schedule of the controlled substance is

an element, while the specific identity of the “substance listed in schedule I or II” is a

“means” to satisfy that element. Id. Further, the statute specifically names three

other substances not found in schedule I or II: flunitrazepam, ketamine, and gamma

hydroxybutyrate. Id. Had the Colorado legislature intended for a specific controlled

                                            7
substance listed in schedule I or II to constitute an essential element, it could have

separately listed the substance in the statute as it did with flunitrazepam, ketamine,

and gamma hydroxybutyrate. But the legislature did not do so. Instead, the

legislature chose to subsume all substances listed in schedule I or II as a “means” to

prove that a person possessed a schedule I or II controlled substance. We therefore

conclude that the statutory language demonstrates that a jury need only conclude

beyond a reasonable doubt that the defendant possessed a schedule I or II substance;

a jury does not, however, need to determine beyond a reasonable doubt the specific

identity of the substance.

      The government contends that the Colorado statute inherently requires that a

jury identify the specific controlled substance because that is the only way the jury

can categorize a controlled substance as schedule I or II. But we, as well as the

Supreme Court, reject such arguments. In Mathis, the Supreme Court reasoned that

where “a statute requires use of a ‘deadly weapon’ as an element of a crime and

further provides that the use of a ‘knife, bat, or similar weapon’ would all qualify,”

such a statute merely “specifies diverse means of satisfying a single element of a

single crime.” 136 S. Ct. at 2249 (emphasis added). “A jury could convict even if

some jurors conclude[d] that the defendant used a knife while others conclude[d] he

used a gun, so long as all agreed that the defendant used a ‘deadly weapon.’” Id.

(internal quotation marks and citation omitted) (alterations in original).

      Relevant here, C.R.S. § 18-18-403.5(2)(a) provides that a person knowingly

possesses a controlled substance by possessing a “substance listed in schedule I or II

                                            8
of part 2 of this article.” Thus, the statute treats all controlled substances listed in

schedules I and II categorically—based on schedule, not identity. We thus conclude

that the identity of a controlled substance is like a “knife, gun, bat, or similar

weapon”—i.e., the identity of the substance constitutes “specifie[d] diverse means”

of proving that the defendant possessed a schedule I or II controlled substance.3

Mathis, 136 S. Ct. at 2249. Thus, a jury need not unanimously decide the specific

identity of the substance, so long as it can unanimously agree that the defendant

possessed a schedule I or II controlled substance.

                                            B.

       We also conclude that the statutory punishments under the Colorado statute

indicate that the identity of a particular controlled substance is not an element of the

offense. For example, C.R.S. § 18-18-403.5 carries different punishments based on

schedule groupings. “If statutory alternatives carry different punishments then . . .

they must be elements.” Mathis, 136 S. Ct. at 2256. A conviction under § 18-18-

403.5(2)(a) for possession of a schedule I or II controlled substance is a level 4 drug

felony. But a conviction under § 18-18-403.5(2)(c) for possession of a schedule III,

IV, or V controlled substance is a level 1 drug misdemeanor. Thus, although the

alternative schedule groupings carry different punishments, the individual substances

listed within each schedule do not.



       3
        As an example, a jury could still return a guilty verdict under the statute,
even if half the jury concluded that the defendant possessed heroin (schedule I),
while the other half concluded that the defendant possessed raw opium (schedule II).
                                             9
      We also find persuasive our decision in Arellano v. Barr, 784 F. App’x 609

(10th Cir. 2019) (unpublished), in which we analyzed a strikingly similar 1997

Colorado statute dealing with possession of a controlled substance. We concluded

“that the substance is not an element” because unlike the schedules, which carry

different punishments, “the substances only carry different punishments if they fall in

different schedules.” Id. at 612–13 (internal quotation marks omitted). We thus held

that “because the schedules are ‘statutory alternatives [that] carry different

punishments,’ they are elements.” Id. at 613 (alteration in original). We find the

same true today.

      Although the Colorado statute may be divisible as to the particular schedules,

the statute is indivisible as to the identity of the particular controlled substance. And

because the Colorado statute includes morpholine as a schedule II controlled

substance, and the CSA does not, the Colorado statute’s schedules sweep more

broadly. Thus, no categorical match exists between the state and federal schedules.

                                                C.

      State law can also help determine whether a statutory alternative is an

“element” or a “means.” See Mathis, 136 S. Ct. at 2256; United States v. Degeare,

884 F.3d 1241, 1248 (10th Cir. 2018). Here, no Colorado court opinion directly

answers the question as to whether the identity of a particular controlled substance is

an element or means.4 But Colorado’s jury instructions help explain which elements


      4
        Johnson cites People v. Perea, 126 P.3d 241 (Colo. App. 2005) to support his
position that C.R.S. § 18-18-403.5(1), (2)(a) is indivisible as to the identity of the
                                           10
a jury must agree on to convict a defendant for the crime of possessing a controlled

substance.

        The 2008 legacy jury instructions for possession of a controlled substance

read:

        1. That the defendant,
        2. in the State of Colorado, at or about the date and place charged,
        3. knowingly,
        4. possessed
        5. the controlled substance.

See Chapter 18, Archived Chapters of Colorado Jury Instructions – Criminal (2008)

(emphasis added). In 2014, however, the Colorado Supreme Court changed the

instructions to read:

        1. That the defendant,
        2. in the State of Colorado, at or about the date and place charged,
        3. knowingly,
        4. possessed a controlled substance.

Chapter 18, Colorado Jury Instructions – Criminal (2014) (emphasis added).

Importantly, the Colorado Supreme Court broadened the language of the model jury

instructions from “the” controlled substance to “a” controlled substance before

Johnson pleaded guilty in 2016. Use of the definite article “the” refers to a specific

noun (namely, the specific controlled substance). Use of the indefinite article “a,”



particular substance. In Perea, the Colorado Court of Appeals held that a conviction
under the controlled substances statute requires “only that a person know that he or
she possesses a controlled substance, and not that he or she know the precise
controlled substance possessed.” 126 P.3d at 245. While we recognize that Perea
addresses the mens rea aspect of the statute, it bolsters our conclusion that the
identity of the specific controlled substance is not an element under the statute.
                                            11
however, refers to non-specific nouns. This change in the jury instructions suggests

that the specific identity of a controlled substance is not an element under the statute.

And the applicable jury instructions reinforce our holding in Arellano that C.R.S.

§ 18-18-403.5(1), (2)(a) is divisible only as to the schedule, but indivisible as to the

particular substance within a schedule.

      We conclude that under the categorical approach, C.R.S. § 18-18-403.5(1),

(2)(a) is broader than the CSA because it criminalizes possessing morpholine, while

the CSA does not. Moreover, because the identity of a particular substance listed in

schedule I or II is a means rather than an element of the offense, C.R.S. § 18-18-

403.5(1), (2)(a) is indivisible, and we thus do not apply the modified categorical

approach. Finally, because no categorical match exists between the Colorado statute

and the federal CSA, Johnson’s state drug conviction cannot qualify as a predicate

for removal from the United States.

      VACATED AND REMANDED.




                                           12
