                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 GUSTAVO TEJEDA,                                    No.13-74391
                                 Petitioner,
                                                    Agency No.
                      v.                           A094-875-502

 WILLIAM P. BARR, Attorney
 General,                                             OPINION
                       Respondent.


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

           Argued and Submitted October 23, 2019
                    Pasadena, California

                           Filed June 8, 2020

 Before: Andrew J. Kleinfeld and Consuelo M. Callahan,
       Circuit Judges, and Jane A. Restani,* Judge.

                       Per Curiam Opinion




     *
       The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2                          TEJEDA V. BARR

                            SUMMARY**


                            Immigration

    Denying Gustavo Tejeda’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that a conviction for being under the influence of a controlled
substance, in violation of California Health and Safety Code
§ 11550(a), is divisible with respect to controlled substance
such that the modified categorical approach applies to
determining whether a conviction under the statute is a
controlled-substance offense as defined by federal law.

    In the language of the documents relating to Tejeda’s
conviction, he was convicted of being under the influence of
a controlled substance—amphetamines—in violation of
Section 11550(a). The panel noted that the parties agreed that
the California statute includes substances which are not
prohibited by federal law and explained that, in United States
v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc),
the court held that the controlled-substance requirement of
California Health and Safety Code § 11352 was divisible
because, under state law, it established separate crimes for the
various substances rather than alternative means of
committing one offense. The panel concluded that the
reasoning in Martinez-Lopez squarely applied here,
explaining that Section 11550(a) incorporates controlled
substances from the state schedules, the state law “separate
crimes” holding cited by Martinez-Lopez applies, and the


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       TEJEDA V. BARR                         3

state pattern jury instructions for Section 11550(a) require the
jury to agree on the particular substance.

    Applying the modified categorical approach, the panel
concluded that Tejeda’s plea agreement, the charging
document, and the minute order are cognizable for modified-
categorical-approach purposes and establish the elements of
his offense. Further, the panel observed that the relevant
substance here, amphetamine, is a controlled substance under
federal law. Accordingly, the panel concluded that the
modified categorical approach was applicable and satisfied
here.

    The panel also rejected Tejeda’s argument that the actus
reus aspect of Section 11550(a) is indivisible. The panel
explained that, under 8 U.S.C. § 1227(a)(2)(B)(i), Tejeda’s
conviction serves as a basis for his deportability if it is a
conviction relating to a federally controlled substance, and
that the Supreme Court has confirmed that the effect of
“relating to” in this statute is to require a “direct link”
between an alien’s crime of conviction and a particular
federally controlled drug. The panel further explained that
where, as here, the controlled-substance requirement of a
state statute is divisible and where, as here, the relevant
substance is shown by application of the modified categorical
approach to be federally controlled, then there is a “direct
link” between an alien’s crime of conviction and a particular
federally controlled drug such that 8 U.S.C.
§ 1227(a)(2)(B)(i) is satisfied. Therefore, the panel
concluded that the divisibility of the actus reus element of
Section 11550(a) is irrelevant.
4                          TEJEDA V. BARR

                              COUNSEL

Louis A. Gordon (argued), Law Offices of Louis A. Gordon,
Los Angeles, California; Roger Jay Gleckman, Gleckman &
Sinder, Los Angeles, California; for Petitioner.

Jeffrey R. Leist (argued), Jennifer Paisner Williams, and
Anthony Payne, Senior Litigation Counsel; Joyce R. Branda,
Acting Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.


                               OPINION

PER CURIAM:

    The Board of Immigration Appeals dismissed Gustavo
Tejeda’s appeal from an Immigration Judge’s decision
finding him removable under 8 U.S.C. § 1227(a)(2)(B)(i) for
having been convicted of a controlled-substance offense as
defined by federal law. In the language of the documents
relating to Tejeda’s conviction, he was convicted under
California law of being under the influence of a controlled
substance—amphetamines—in violation of California Health
and Safety Code § 11550(a).1

    1
       Tejeda pleaded guilty to being under the influence and use of
“amphetamines,” rather than the singular “amphetamine” used in the
federal Controlled Substances Act. Before the BIA, he argued that this
distinction rendered his conviction broader than what the Controlled
Substance Act criminalized. This argument has no merit. Tejeda pleaded
guilty to a violation of California Health and Safety Code § 11550(a),
which in turn refers to certain controlled substances in sections of several
drug schedules. The only drug schedule section referenced in § 11550(a)
                          TEJEDA V. BARR                                5

     The primary issue in this case is whether
Section 11550(a) is “divisible” under Descamps v. United
States, 570 U.S. 254 (2013), and United States v. Martinez-
Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). We hold that
it is. Although we held that Section 11550(a) is divisible in
the unpublished decision Araujo-Flores v. Holder, 570 Fed.
App’x 714 (9th Cir. 2014), we publish now to establish
precedent on the matter.

    Tejeda’s argument is that (1) the California prohibition
includes substances not prohibited by federal law, so a
violation of the California statute is not categorically the
same as a violation of the federal statute; (2) the California
statute is not divisible, so the modified categorical approach
cannot be applied; and (3) even if the modified categorical
approach could be applied, the documents cognizable for its
application do not establish that his state conviction was
equivalent to what the federal statute criminalizes. We
ordered supplemental briefing to address a decision that came
down while the appeal was pending, United States v.
Martinez-Lopez, which held that another California drug
statute—California Health and Safety Code § 11352—was
divisible. 864 F.3d at 1044. In his supplemental brief,
Tejeda argues that Section 11352 and Section 11550(a)
should be distinguished.




that mentions amphetamines is California Health and Safety Code
§ 11055(d)(1), which lists “[a]mphetamine, its salts, optical isomers, and
salts of its optical isomers.” The federal Controlled Substances Act
applies to the same stimulants. See 21 U.S.C. § 802(9)(B). Accordingly,
Tejeda was clearly convicted of being under the influence and use of
“amphetamine” as defined by the federal Controlled Substances Act.
6                      TEJEDA V. BARR

    The federal statute provides for removal of aliens
deportable because of a conviction of a violation of any state
law “relating to a controlled substance (as defined in section
802 of Title 21) . . . .” 8 U.S.C. § 1227(a)(2)(B)(i). The
parties agree that the California statute includes substances
which are not included in the federal definition. See
Coronado v. Holder, 759 F.3d 977, 983 (9th Cir. 2014).
Accordingly, a violation of California Health and Safety
Code § 11550(a) does not necessarily amount to a violation
of the federal Controlled Substances Act, and thus is not
categorically a federal “controlled substance” violation.

    We held in Coronado v. Holder that California Health and
Safety Code § 11377(a) is divisible, so the modified
categorical approach applies to convictions under it.
759 F.3d 977, 983–85 (9th. Cir. 2014). Tejeda argues that
Coronado was wrongly decided. Because we are not sitting
en banc, we have no authority to reject Coronado. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

    Moreover, in our en banc Martinez-Lopez decision, we
agreed with Coronado that insofar as the California list of
controlled substances is concerned, the list establishes
elements, not merely means of committing the offenses, so
the statutes incorporating those lists are divisible and the
modified categorical approach applies. 864 F.3d at 1040–41.
We held in Martinez-Lopez that California Health and Safety
Code § 11352 is divisible. Id. at 1041. That statute, like
Section 11550(a), incorporates substances from the state lists,
which are broader than the federal list. We held the
controlled-substance requirement of Section 11352 divisible
because, under state law, it established separate crimes for the
various substances rather than alternative means of
committing one offense. Id. at 1040–41 (noting that this
                        TEJEDA V. BARR                           7

conclusion was supported by the “persuasive authority” of
applicable California jury instructions).

    Application of these two cases, Coronado and Martinez-
Lopez, requires us to treat the controlled-substance
requirement in Section 11550(a) as divisible. The reasoning
in Martinez-Lopez squarely applies. Section 11550(a)
incorporates controlled substances from the state schedules,
the state law “separate crimes” holding cited by Martinez-
Lopez applies, and the state pattern jury instructions for
Section 11550(a) require the jury to agree on the particular
substance. Jud. Council Cal. Crim. Jury Instruction 2400.
Applying the modified categorical approach, Tejeda’s plea
agreement, the charging document, and the minute order are
cognizable for modified-categorical-approach purposes, see
United States v. Valdavinos-Torres, 704 F.3d 679, 687 (9th
Cir. 2012), and establish the elements of his offense.
Amphetamine is a controlled substance under the federal
Controlled Substance Act. 21 U.S.C. § 802(9)(B); 21 C.F.R.
§ 1308.12(d)(1). With the divisibility of Section 11550(a)’s
controlled-substance requirement established, the modified
categorical approach is applicable and satisfied here.

    Tejeda’s second argument, raised in the supplemental
brief we required after our en banc decision in Martinez-
Lopez came down, addresses actus reus. Tejeda argues that
this actus reus aspect of the state statute is indivisible, barring
use of the modified categorical approach. Although this
argument was not raised before the BIA or in Tejeda’s
opening brief, we nevertheless address it here.

    Martinez-Lopez, however, is distinguishable. There, the
defendant argued that the actus reus of the California state
drug law under which he convicted was indivisible. 864 F.3d
8                      TEJEDA V. BARR

at 1038. The divisibility of that actus reus requirement was
relevant because his prior state conviction had been used to
impose a sentencing enhancement under the 2012 United
States Sentencing Guidelines Manual. Id. at 1037. The
relevant enhancement there applied when a defendant had
previously been deported following a conviction “for a felony
. . . drug trafficking offense for which the sentence imposed
exceeded 13 months.” Id. (alteration in original) (quoting
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(i) (U.S.
Sentencing Comm’n 2012)). As defined in the Guidelines, a
“drug trafficking offense” required the violation of a law
which “prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled
substance . . . or the possession of a controlled substance . . .
with intent to manufacture, import, export, distribute, or
dispense.”       Id. (alteration in original) (quoting U.S.
Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iv) (U.S.
Sentencing Comm’n 2012)). The actus reus of the state
statute there was categorically overbroad because that statute
“criminalize[d] the mere ‘offer to’ commit certain offenses
related to a controlled substance” and the version of that
statute in effect at the time of conviction “criminalized the
transportation of a controlled substance for personal use,
which [was] not a drug trafficking offense under the
Controlled Substances Act.” Id. at 1038 n.3. Therefore,
divisibility of the actus reus in the state statute was a
precondition for the enhancement. Id. at 1037–38.

    By contrast, here, Tejeda’s conviction under Section
11550(a) serves as a basis for his deportability if it is a
conviction “of a violation of . . . any law . . . of a State . . .
relating to a [federally] controlled substance (as defined in
section 802 of Title 21) . . . .” 8 U.S.C. § 1227(a)(2)(B)(i)
(emphasis added). The Supreme Court has confirmed that the
                          TEJEDA V. BARR                               9

effect of “relating to” in this statute is to “require[ ] a direct
link between an alien’s crime of conviction and a particular
federally controlled drug.” Mellouli v. Lynch, 135 S. Ct.
1980, 1990 (2015). Unlike many federal statutes under which
state convictions serve as predicates for consequences when
they relate to some kind of conduct,2 Section 1227(a)(2)(B)(i)
imposes consequences for state convictions that relate to a
federally controlled substance. Under the categorical and
modified categorical approaches, then, “the proper analysis
turns on whether the state drug conviction ‘limits the meaning
of “controlled substance,” for removal purposes, to the
substances controlled under [21 U.S.C. § 802.]’”
Villavicencio v. Sessions, 904 F.3d 658, 665 (9th Cir. 2018)
(alteration in original) (quoting Mellouli, 135 S. Ct.
at 1990–91).

    Where, as here, the controlled-substance requirement of
a state statute is divisible and where, as here, the relevant
substance is shown by application of the modified categorical
approach to be federally controlled, then there is “a direct link
between an alien’s crime of conviction and a particular
federally controlled drug” such that 8 U.S.C.
§ 1227(a)(2)(B)(i) is satisfied. Mellouli, 135 S. Ct. at 1990.
Because under the modified categorical approach a
conviction for using or being under the influence of




    2
      For example, United States v. Schopp describes a federal statute
imposing consequences for prior state convictions “relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a minor
or ward.” 938 F.3d 1053, 1065 (9th Cir. 2019) (quoting United States v.
Sinerius, 504 F.3d 737, 740 (9th Cir. 2007)).
10                    TEJEDA V. BARR

amphetamine relates to a federally controlled substance, the
divisibility of the actus reus element of Section 11550(a) is
irrelevant.

     Therefore, the Petition for Review is DENIED.
