                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1085


JULIO C. DAVID CASTILLO,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 30, 2014                 Decided:   January 14, 2015


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Petition for review granted and order of removal vacated by
published opinion.    Judge Keenan wrote the opinion, in which
Judge Duncan and Judge Diaz joined.


ARGUED:   Ellis   Charles   Baggs,  BAGGS   LAW   GROUP,   PLC,
Mechanicsville, Virginia, for Petitioner.    Nicole J. Thomas-
Dorris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Civil Division, John S. Hogan, Senior Litigation
Counsel, Aimee J. Carmichael, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
BARBARA MILANO KEENAN, Circuit Judge:

      Julio C. David Castillo, a citizen of Honduras, filed this

petition      seeking       review     of   a     decision       by    the       Board   of

Immigration Appeals (BIA) dismissing Castillo’s appeal from an

immigration judge’s order of removal.                    The BIA determined that

Castillo      was   removable       based    on   his    conviction         in    1995   of

unauthorized use of a motor vehicle, in violation of Virginia

Code § 18.2-102.        The BIA held that this offense qualified as an

“aggravated felony” under the category of “theft offense” as

listed   in    8    U.S.C.    §   1101(a)(43)(G).           Upon      our    review,     we

disagree     with     the   BIA’s    conclusion      and    hold      that   Castillo’s

conviction did not constitute an “aggravated felony,” because

the   full    range    of    conduct    covered     by     the   Virginia        crime   of

“unauthorized use” does not qualify as a “theft offense,” as

that term has been defined by the BIA.                           We therefore grant

Castillo’s petition for review and vacate the order of removal.



                                            I.

      Castillo entered the United States as a lawful permanent

resident in July 1982, when he was about 11 years old.                            In 1995,

Castillo was convicted in a Virginia state court of unauthorized

use of a motor vehicle, in violation of Virginia Code § 18.2-102

(unauthorized use).          That statute states, in relevant part:



                                            2
       Any person who shall take, drive or use any . . .
       vehicle . . . not his own, without the consent of the
       owner [] and in the absence of the owner, and with
       intent temporarily to deprive the owner [] of his
       possession [], without intent to steal the same, shall
       be guilty of a Class 6 felony . . . [unless] the value
       of such . . . vehicle . . . shall be less than $200,
       such person shall be guilty of a Class 1 misdemeanor.

Va. Code § 18.2-102 (unauthorized use statute).                         The Virginia

court    sentenced     Castillo       to   serve      a    term    of    18    months’

imprisonment, with all but 35 days suspended.

       In January 2012, the Department of Homeland Security (DHS)

issued a “notice to appear,” and initiated removal proceedings

against Castillo based on 8 U.S.C. § 1227(a)(2)(A)(iii), which

authorizes the Attorney General to remove “[a]ny alien who is

convicted of an aggravated felony at any time after admission.”

DHS    contended    that   Castillo’s      unauthorized         use   conviction       in

1995    qualified    as    an     “aggravated    felony”        under   8     U.S.C.   §

1101(a)(43)(G), because the crime was “a theft offense . . . for

which the term of imprisonment [was] at least one year.”                                §

1101(a)(43)(G) (Subsection G).

       Although     Castillo      conceded     that       the   sentence      for   his

unauthorized use conviction exceeded the one-year requirement of

Subsection G, he disputed that his conviction qualified as a

“theft offense.”       The immigration judge (IJ) rejected Castillo’s

argument,    holding       that    Castillo     was       removable     because     the




                                           3
Virginia         offense      of     unauthorized        use     necessarily          proscribed

conduct that qualified as a “theft offense” under Subsection G.

       On       appeal    from      the   IJ’s    decision,       the    BIA     reviewed        the

statutory language in Virginia Code § 18.2-102, and concluded

that       the   statutory         elements      of    unauthorized       use    “essentially

mirror[ed]” the BIA’s previously adopted definition of “theft

offense,” which included the taking of property with the “intent

to deprive the owner of the rights and benefits of ownership,

even       if    such    deprivation        is    less    than     total    or    permanent.”

Accordingly,            the   BIA    dismissed         Castillo’s       appeal.        Castillo

later filed this petition for review of the BIA’s decision. 1



                                                 II.

       On appeal, Castillo contends that the BIA erred in holding

that       his    unauthorized        use     conviction         qualified       as    a    “theft

offense”         under    Subsection        G.        Castillo    asserts       that       the   BIA

failed to recognize an essential aspect of the Virginia crime of

       1
        By order dated December 22, 2014, we directed the
government to release Castillo from custody, indicating that
this decision would provide the reasons for our order.        In
considering this appeal, we observe that judicial review is
generally precluded in cases involving aliens who are removable
as aggravated felons.    8 U.S.C. § 1252 (a)(2)(C); Kporlor v.
Holder, 597 F.3d 222, 225-26 (4th Cir. 2010).       However, we
retain jurisdiction to review constitutional claims or questions
of law, including whether an underlying crime qualifies as an
aggravated felony.     8 U.S.C. § 1252(a)(2)(D); Soliman v.
Gonzales, 419 F.3d 276, 280 (4th Cir. 2005).



                                                  4
unauthorized use, which distinguishes that crime from a “theft

offense”    under     Subsection    G.         According     to   Castillo,   the

temporary deprivation of possession encompassed by the Virginia

unauthorized     use    statute     necessarily        includes      de   minimis

deprivations     of    ownership    interests,       while    such   de   minimis

deprivations expressly are excluded from the BIA’s definition of

a “theft offense.”           Thus, Castillo submits that the Virginia

crime of unauthorized use is not a “theft offense” under the

BIA’s definition.

     In response, the government argues that the BIA correctly

determined that the elements of unauthorized use in Virginia are

a “categorical match” to the elements of a “theft offense” as

defined    by   the   BIA.    The   government       further      maintains   that

Castillo has presented only a theoretical possibility that the

Virginia statute would be applied to conduct resulting in de

minimis deprivations of an owner’s interest in property.                       We

disagree with the government’s position.

                                         A.

      Under the Immigration and Nationality Act (INA), a non-

citizen is removable if he is “convicted of an aggravated felony

at any time after admission.”                 8 U.S.C. § 1227(a)(2)(A)(iii).

The INA defines “aggravated felony” by enumerating a long list

of crimes, including murder, rape, sexual abuse of a minor, drug

and firearm trafficking, and fraud offenses in which the loss

                                         5
exceeds $10,000.            See 8 U.S.C. § 1101(a)(43).            Also among these

listed crimes is a “theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment

[was] at least one year.”              8 U.S.C. § 1101(a)(43)(G).              The INA

does not define the term “theft offense.”

      We    have     held    that    substantial    deference      is   owed   to    the

BIA’s statutory interpretation of the term “theft offense” in

Subsection G.         Soliman v. Gonzales, 419 F.3d 276, 281 (4th Cir.

2005)      (citing    Chevron,       U.S.A.,    Inc.      v.   Natural    Res.      Def.

Council, Inc., 467 U.S. 837 (1984)); see also INS v. Aguirre-

Aguirre,     526     U.S.    415,    425   (1999)    (explaining        that   Chevron

deference applies when the BIA “gives ambiguous statutory terms

concrete       meaning         through      a      process        of     case-by-case

adjudication”) (internal quotation marks and citations omitted).

Such deference is accorded based on the agency’s responsibility

to   administer       the     INA.     Soliman,     419    F.3d    at    281   (citing

Chevron, 467 U.S. at 843).             Under the holding in Chevron, we are

required to accept the BIA’s construction of an otherwise silent

or ambiguous statute, unless such construction is “arbitrary,

capricious, or manifestly contrary to the statute.”                      467 U.S. at

843-44.

      The BIA’s principal decision interpreting the term “theft

offense” is In re V-Z-S-, 22 I. & N. Dec. 1338 (BIA 2000) (VZS).

In VZS, which the BIA cited in the case before us, the BIA

                                           6
considered         whether      the   “unlawful          driving      or     taking      of     a

vehicle,” in violation of California law, was a “theft offense”

within the meaning of Subsection G.                          Id. at 1346-47.          The BIA

categorized        the   California     crime          as    a   “theft    offense,”       even

though       the   California     statute         did   not      require     an    intent     to

permanently        deprive      the   owner       of    the      property,    as    would      be

required for common law larceny.                        See id. at 1347-48 (citing

Cal. Vehicle Code § 10851(a), which included as an element the

intent “either to permanently or temporarily deprive the owner”

of his “title to or possession of the vehicle, whether with or

without intent to steal”).

       The BIA reached this conclusion in VZS after determining

that “Congress’ use of the term ‘theft’ is broader than the

common-law definition” of larceny.                          Id. at 1345-36.           The BIA

thus construed the term “theft offense” to encompass the taking

of property when “there is criminal intent to deprive the owner

of     the    rights      and     benefits        of        ownership,     even     if     such

deprivation is less than total or permanent.”                                Id. at 1346.

Notably,       however,      in   articulating           this      construction       of      the

statute, the BIA emphasized that “[n]ot all takings of property

. . . will meet this standard[,] because some takings entail a

de minimis deprivation of ownership interests” and constitute

only    a     “glorified     borrowing”       of        property.          Id.      By     this



                                              7
language, the BIA explicitly acknowledged that not all takings

of property will constitute “theft offenses” under the INA.

       Five years after the BIA issued its decision in VZS, this

Court considered the meaning of the term “theft offense” as used

in    Subsection     G.     We    held     that   Congress   intended    qualifying

crimes      to   include    an    element    of   taking    of   property   “without

consent,” and to exclude the circumstance of obtaining property

by fraud.        Soliman, 419 F.3d at 283.            Based on our decision in

Soliman      and   certain       other   circuit    court    decisions,     the   BIA

refined      its   definition       of   “theft     offense”     for   purposes    of

Subsection G, clarifying that this term “consists of the taking

of,    or    exercise      of    control    over,    property     without   consent

whenever there is criminal intent to deprive the owner of the

rights and benefits of ownership, even if such deprivation is

less than total or permanent.”               In re Garcia-Madruga, 24 I. & N.

Dec. 436, 440 (BIA 2008).

       This definition of “theft offense” has been applied by the

Supreme Court and by many of our sister circuits. 2                    See Gonzales

v. Duenas-Alvarez, 549 U.S. 183, 189 (2007); Burke v. Mukasey,

       2
       We observe that in Gonzales v. Duenas-Alvarez, 549 U.S.
183 (2007), the Supreme Court did not adopt the BIA’s definition
of a theft offense, but instead explained that many circuit
courts had accepted that definition. Id. at 189. Based on the
question presented in Duenas-Alvarez, namely, whether aiding and
abetting a theft offense qualifies as a theft offense, it was
not necessary for the Court to review the reasonableness of the
BIA’s definition.


                                             8
509 F.3d 695, 697 (5th Cir. 2007); United States v. Corona-

Sanchez,     291       F.3d     1201,     1205       (9th      Cir.     2002)       (en    banc);

Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir. 2001);

United States v. Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir.

2001); see also Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013)

(adopting the BIA’s definition of “theft offense” as stated in

VZS); Almeida v. Holder, 588 F.3d 778, 784-85 (2d Cir. 2009)

(same); Jaggernauth             v.   U.S.   Att’y         Gen.,    432    F.3d      1346,      1353

(11th     Cir.     2005)       (same).           Because        the     BIA     applied        this

definition in the present case, we likewise consider the same

definition in this appeal.                      However, we are not required to

decide    whether       the    BIA’s     definition           constitutes       a    reasonable

construction       of       Subsection      G    because,         for    purposes         of   our

analysis,    the        Virginia      crime      of       unauthorized        use     does     not

qualify     as     a    “theft       offense”        even       under    this       definition.

Accordingly, we apply here the BIA’s definition, namely, “the

taking of, or exercise of control over, property without consent

whenever there is criminal intent to deprive the owner of the

rights and benefits of ownership, even if such deprivation is

less than total or permanent.”                       See Garcia-Madruga, 24 I. & N.

Dec. at 440; see also VZS, 22 I. & N. Dec. at 1345-46.

                                                B.

     We    turn        to   consider      whether         a    Virginia       conviction        for

unauthorized       use        qualifies     as       an       aggravated      felony       “theft

                                                9
offense” under the above definition.                          We consider this legal

question de novo.           Karimi v. Holder, 715 F.3d 561, 566 (4th Cir.

2013).

       To determine whether a particular state offense constitutes

an    aggravated       felony    under    the       INA,     we    employ       a     categorical

approach.        See     Moncrieffe       v.     Holder,      133     S.       Ct.    1678,    1684

(2013); Garcia v. Holder, 756 F.3d 839, 843 (5th Cir. 2014).

Under this approach, we compare the aggravated felony definition

of    “theft    offense”       with   the      elements       of    the     state          crime   at

issue, Virginia unauthorized use.                        Descamps v. United States,

133 S. Ct. 2276, 2283-84 (2013) (citing Taylor v. United States,

495    U.S.    575     (1990)).       “[A]       state      offense       is    a     categorical

match” with a federal offense “only if a conviction of the state

offense       necessarily       involved       facts        equating       to        the    generic

federal offense.”             Moncrieffe, 133 S. Ct. at 1684 (citation,

internal quotation marks, and alterations omitted).                                   Therefore,

in    conducting       this     review,     we      focus    on     the     minimum         conduct

necessary for a violation of the state statute, while ensuring

that    there     is    a     “realistic       probability,           not       a     theoretical

possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.”                                      Duenas-

Alvarez, 549 U.S. at 193.                 Additionally, “[t]o the extent that

the    statutory        definition        of      the      prior      offense          has     been



                                               10
interpreted”       by      the    state’s     appellate         courts, 3       “that

interpretation constrains our analysis of the elements of state

law.”     See United States v. Aparicio-Soria, 740 F.3d 152, 154

(4th Cir. 2014) (en banc).

                                      C.

     With this legal framework in mind, we turn to consider the

elements of the Virginia statutory crime of unauthorized use,

both with regard to the statutory language and to the manner in

which the crime has been interpreted by Virginia’s appellate

courts.     The    Virginia      unauthorized      use    statute    prohibits    in

relevant    part   (1)   the     taking,    driving,      or   use   of   another’s

vehicle, (2) without consent of the owner, and (3) with the

intent to temporarily deprive the owner of his possession of the

vehicle    but   without    intent   to    steal    the    vehicle.       Va.   Code

     3
        This Court has deferred to statutory interpretation
conducted by the “state’s highest court.” United States v.
Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc).
However, when the state’s highest court has not engaged in such
statutory interpretation, a “state’s intermediate appellate
court decisions ‘constitute the next best indicia of what state
law is,’ although such decisions ‘may be disregarded if the
federal court is convinced by other persuasive data that the
highest court of the state would decide otherwise.’”     Liberty
Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th
Cir. 1992) (quoting 19 Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4507 (1982)).
Further, as explained below, the Supreme Court of Virginia has
relied on the analysis conducted by the Court of Appeals of
Virginia in Overstreet v. Commonwealth, 435 S.E.2d 906 (Va. Ct.
App. 1993), with regard to consensual use takings that qualify
as unauthorized use offenses.   See Tucker v. Commonwealth, 604
S.E.2d 66 (Va. 2004).


                                       11
§ 18.2-102; see Reese v. Commonwealth, 335 S.E.2d 266, 267 (Va.

1985).

       A     review      of     the     decisions       in     Virginia      addressing

unauthorized use shows that convictions under the statute arise

from a broad range of circumstances.                    Convictions have resulted

in    certain     cases       from    conduct     involving     obvious     trespassory

takings in which the defendant’s conduct demonstrates a clear

intent to deprive the owner of the use of his property.                              See

Hewitt v. Commonwealth, 194 S.E.2d 893 (Va. 1973) (affirming

defendant’s       conviction          for   unauthorized       use   when     defendant

participated in “hotwiring” a stranger’s parked car and used the

car for one night).             However, unauthorized use convictions also

have    resulted      from      conduct     involving      takings   when     an   owner

initially has given a defendant consent to use the property.

See Tucker v. Commonwealth, 604 S.E.2d 66 (Va. 2004) (conviction

upheld when defendant was permitted to use the owner’s car to

drive to a restaurant but kept the car for several days); Eley

v. Commonwealth, 1997 Va. App. LEXIS 146, at *4 (Va. Ct. App.

Mar.       11,   1997)     (explaining       that     a      prima   facie    case    of

unauthorized use is established when “the evidence shows that

the    borrower’s        use    of    the   vehicle       exceeded   the     scope   and

duration of the owner’s consent”).

       In a frequently cited case in the context of consensual

use, Overstreet v. Commonwealth, the defendant was permitted to

                                             12
borrow a vehicle during a 30-minute lunch break, but kept the

vehicle beyond that time and was apprehended while driving the

vehicle about 14 hours later.                         435 S.E.2d 906 (Va. Ct. App.

1993).      The Court of Appeals of Virginia (the Virginia court)

explained        that      when        the    defendant      exceeded        the   scope      and

duration of the owner’s authorization, the defendant committed a

trespassory       taking         and    violated      the    owner’s     possessory         right

under      the    statute.              Id.     at    908;     see     also     Montague       v.

Commonwealth, 579 S.E.2d 667, 670 (Va. Ct. App. 2003) (stating

that proof of a statutory violation requires that a defendant

“knew he was not authorized to use the vehicle”).

      The Virginia court emphasized in Overstreet the broad range

of   conduct      encompassed           by    unauthorized       use    statutes       such    as

Virginia Code § 18.2-102.                     The court observed that, under such

statutes, a crime “may be committed by an employee of the owner

of a motor vehicle in using the vehicle for his own purposes not

connected        with      the    purposes      for    which     the    vehicle     had     been

entrusted        to     him      or    in    using    the    vehicle     contrary      to     the

instructions          of    the       owner.”        Overstreet,       435    S.E.2d   at     908

(citation omitted).                   The Virginia court further explained that

when “an act violates the specific scope or duration of consent

to   use    a    vehicle,         a    trespassory      taking    contemplated         by   Code

§ 18.2-102 occurs.”               Id.



                                                 13
     Under this reasoning, Virginia law, as articulated by the

state’s appellate courts, permits a conviction for unauthorized

use when an owner authorizes an individual to use the owner’s

vehicle    for    a    stated       purpose,       but    the     individual       uses   the

vehicle for a different purpose even if within the timeframe and

other specifications of the authorized use.                             Such a situation

occurred in Medlin v. Commonwealth, 2004 Va. App. LEXIS 527 (Va.

Ct. App. Nov. 9, 2004).

     There, an employee’s conviction for unauthorized use was

upheld based on his use of the employer’s vehicle in a manner

not specifically authorized when the vehicle was entrusted to

him, even though the employer customarily authorized employees

to use the vehicle in the same manner.                          Id.     The situation in

that case arose when the employer authorized the defendant to

drive    the    employer’s      tow       truck    to    obtain    some    medicine,      but

further    instructed         the    defendant      to    take    the    truck     home   and

“park    it.”      Id.    at        *2.     During       that     night,    however,      the

defendant       used   the      vehicle       to    tow     another        truck     without

notifying his employer in advance.                  Id. at *2-3.

     The employer testified that he often permitted employees to

take the tow trucks to their homes, and also permitted employees

on those occasions to use the tow trucks to perform private

towing    services       on     their      “nights       off,”     provided        that   the

employees contacted the employer before using the tow truck for

                                             14
such       purposes.        Id.   at    *3.         The      Virginia      court     upheld   the

conviction      on     the    basis     that       the       defendant     operated     the   tow

truck for towing services without contacting the employer in

advance,       thereby       exceeding            the     scope      of    the     specifically

authorized use.            Id. at *6-7.

       The decision in Medlin demonstrates that the Virginia crime

of unauthorized use encompasses a defendant’s use of a vehicle

in a manner not specifically authorized by its owner, even if

such use is consistent with the owner’s general policy regarding

use, occurs during the period the vehicle is entrusted to the

defendant,      and     results        in    no    damage       to   the    vehicle.       Thus,

violations of the Virginia unauthorized use statute can and do

arise based on circumstances in which the defendant’s use of

property       deviates      only      slightly          from     the     specific    scope    of

consensual          use,     resulting        in        an     insignificant         effect    on

ownership       interests. 4            These       circumstances           stand     in   stark

contrast       to    crimes       involving         the       intentional,       nonconsensual

takings       that     typically            involve          significant      impairment      of

ownership rights and damage to the property as described by the




       4
        We   observe   that  our   discussion   of  “de   minimis
deprivations” focuses on the degree and the effect of the
deprivation of an owner’s interest in his property, rather than
merely on the duration of the unauthorized use of that property.



                                                  15
BIA in its elaboration of the term “theft offense.”              See VZS, 22

I. & N. Dec. at 1349.

      Given     the   application   of   the   Virginia     unauthorized    use

statute to even de minimis deprivations of ownership interests,

we   conclude    that   the   statute    covers   circumstances       typically

viewed as “glorified borrowing,” which the BIA has determined

fall outside the definition of a “theft offense.”                    See id. at

1346.         Therefore,      the   BIA’s      conclusion     that     Virginia

unauthorized use is a “theft offense” is erroneous as a matter

of law because the BIA focused solely on the statutory language

and disregarded the fact that Virginia’s courts have held even

de minimis deprivations of ownership interests to be statutory

violations. 5     See Aparicio-Soria, 740 F.3d at 154.          Accordingly,

we hold that because there is “a realistic probability” Virginia

would apply its unauthorized use statute to conduct that falls

outside the BIA’s definition of “theft offense,” see Duenas-


      5
       We additionally observe that the government’s position
fails to recognize a procedural mechanism in Virginia in which
trial courts have the discretion to continue a felony case for
future   disposition,  place  conditions  of   conduct  on   the
defendant, and ultimately dismiss the case if the defendant has
complied with the court’s prescribed conditions.   See Hernandez
v. Commonwealth, 707 S.E.2d 273 (Va. 2011).        Although the
existence of this procedural mechanism does not directly impact
our analysis in the present case, the mechanism provides a
probable explanation for the paucity of appellate decisions
addressing de minimis takings in violation of the Virginia
unauthorized use statute.



                                        16
Alvarez, 549 U.S. at 193, Virginia unauthorized use does not

qualify categorically as an “aggravated felony” under Subsection

G. 6



                               III.

       Because the BIA erred as a matter of law in determining

that Castillo previously had been convicted of an “aggravated

felony” within the meaning of Subsection G, we grant Castillo’s

petition for review and vacate the order for his removal. 7



                                       PETITION FOR REVIEW GRANTED
                                      AND ORDER OF REMOVAL VACATED

       6
       Additionally, we recently held that the Virginia crime of
larceny does not qualify as a “theft offense” within the meaning
of Subsection G.    Omargharib v. Holder, No. 13-2229, ___ F.3d
___ (4th Cir. Dec. 23, 2014).    Although the rationale employed
in Omargharib is not directly applicable to the present case, we
observe that courts in Virginia have described unauthorized use
as a “lesser included” offense of larceny.    Tucker, 604 S.E.2d
at 68 (citing Hewitt, 194 S.E.2d at 894). Thus, under the BIA’s
decision in the present case, an anomalous and unreasonable
result would occur if a conviction of the “lesser” crime of
unauthorized use formed the basis for removability under
Subsection G, while the greater crime of larceny would not.
       7
       Contrary to the government’s assertion that we should
remand   for  consideration   whether  to   apply   the   modified
categorical approach, the Supreme Court’s decision in Descamps
made clear that this approach applies only to divisible
statutes. 133 S. Ct. at 2283. A statute is divisible only when
it contains one or more alternative elements.     Id. at 2283-84.
Although the Virginia unauthorized use statute details various
means of committing the crime, the statute does not list
alternative elements creating different crimes.         Thus, the
modified categorical approach is wholly inapplicable here.


                                17
