        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                         FILED
                                                                     January 6, 2017
                                 No. 14-60888
                                                                      Lyle W. Cayce
                                                                           Clerk
JOSE FLORES-LARRAZOLA, also known as Jose Maria Flores, also known
as Jose Maria Flores-Larrazola,

            Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

            Respondent




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


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is DENIED. No member of the
panel nor judge in regular active service of the court having requested that the
court be polled on Rehearing En Banc (FED. R. APP. P. and 5TH CIR. R. 35), the
Petititon for Rehearing En Banc is DENIED.
      In his petititon, Flores-Larrazola argues that the relevant Arkansas
statute – Ark. Code Ann. § 5-64-401(a) – is indivisible based upon the Supreme
Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016). We
                                       No. 14-60888
disagree. The Arkansas Supreme Court has held that Ark. Code Ann. § 5-64-
401(a) is divisible, 1 and under Mathis, we must heed its command. 2
       Spaho v. United States Attorney General, 837 F.3d 1172, 1177 (11th Cir.
2016), also supports our holding. In that case, the Eleventh Circuit analyzed a
Florida statute that provides in relevant part that “a person may not sell,
manufacture, or deliver, or possess with intent to sell, manufacture, or deliver,
a controlled substance.” 3 The court held that the statutory “text delineates six
discrete alternative elements: sale, delivery, manufacture, possession with
intent to sell, possession with intent to deliver, and possession with intent to
manufacture. Accordingly, the statute is divisible.” 4
       Our divisibility analysis mirrors that of Spaho. Ark. Code Ann. § 5-64-
401(a) renders it unlawful for any person to purposely, knowingly, or recklessly
manufacture, deliver, or possess with the intent to manufacture or deliver a
controlled substance. These tweleve elements, like the six in Spaho, come
together to create “several different crimes.” 5




       1 Cothren v. State, 42 S.W.3d 543, 547—49 (Ark. 2001) (holding that “manufacturing
a controlled substance” and “possession of a controlled substance with the intent to deliver”
are separate offenses that both fall within the purview of Ark. Code Ann. § 5-64-401(a)).
       2 Mathis, 136 S. Ct. at 2256; see United States v. Howell, 838 F.3d 489, 498 (5th Cir.

2016) (holding that a Texas statute is “clear[ly]” indivisible based upon a prior ruling of the
Texas Court of Criminal Appeals).
       3 Fla. Stat. Ann. § 893.13(1)(a).
       4 Spaho, 837 F.3d at 1177.
       5 Mathis, 136 S. Ct. at 2254.

                                              2
