                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CARLOS ALBERTO RENDON,                    No. 10-72239
                     Petitioner,
                                           Agency No.
                v.                        A092-080-719

ERIC H. HOLDER, JR., Attorney
General,                                    ORDER
                        Respondent.


                  Filed April 2, 2015

    Before: Stephen Reinhardt, Raymond C. Fisher,
        and Mary H. Murguia, Circuit Judges.

                        Order;
              Dissent by Judge Graber;
              Dissent by Judge Kozinski
2                      RENDON V. HOLDER

                           SUMMARY*


                           Immigration

    The panel filed an order denying a petition for panel
rehearing and, on behalf of the court, rejecting a sua sponte
en banc call.

    In its opinion filed August 22, 2014, the panel granted
Carlos Alberto Rendon’s petition for review from the Board
of Immigration Appeals’ decision finding him statutorily
ineligible for cancellation of removal based on his conviction
for attempted second-degree burglary, in violation of
California Penal Code § 459. The panel held that under
Descamps v. United States, 133 S. Ct. 2276 (2013), § 459 is
indivisible and its use of disjunctive language did not render
it divisible. The panel held that determining whether a
disjunctively worded statute is divisible requires looking to
whether the state treats the parts of the statute on opposite
sides of the “or” as alternative elements or alternative means.

    Dissenting from the denial of rehearing en banc, Judge
Graber, joined by Judges O’Scannlain, Gould, Tallman,
Bybee, Callahan, Bea, and Ikuta, wrote that when applying
the modified categorical approach to a disjunctive statute,
Descamps holds that the court must consult the Shepard
documents to determine whether what the jury found or what
the defendant pleaded to matches the federal definition of the
relevant crime.


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

    Dissenting from the denial of rehearing en banc, Judge
Kozinski wrote to suggest an alternative reading of
Descamps’s footnote 2. Judge Kozinski’s reading would,
when confronted with a disjunctively-phrased statute, look to
Shepard documents for the limited purpose of determining
the statute’s elements. Judge Kozinski wrote that a court
should first look to the documents to determine a crime’s
elements, and on that basis decide whether the categorical or
modified categorical approach is appropriate.


                          ORDER

    The panel has voted to deny the petition for panel
rehearing.

    A sua sponte call for a vote on rehearing this case en banc
was made by an active judge of this court. The call failed to
receive a majority of the votes of the nonrecused active
judges. Fed. R. App. P. 35. The sua sponte en banc call is
rejected.

    Judge Kozinski’s dissent from denial of rehearing en banc
and Judge Graber’s dissent from denial of rehearing en banc
are filed concurrently with this Order.
4                    RENDON V. HOLDER

GRABER, Circuit Judge, with whom O’SCANNLAIN,
GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, and
IKUTA, Circuit Judges, join, dissenting from the denial of
rehearing en banc:

    I respectfully but emphatically dissent from the denial of
rehearing en banc. When applying the modified categorical
approach, what must we do when we confront a textually
disjunctive statute and are uncertain which statutory
alternative underlies a previous conviction? The Supreme
Court has answered that question in no uncertain terms: in
the face of a disjunctive statute, we consult the documents of
conviction, also known as the “Shepard documents,” to learn
whether what the jury actually found, or what the defendant
actually pleaded to, matches the federal definition of the
relevant crime. The Court even told us what not to do: we
need not parse state law to determine whether the statutory
alternatives are “elements” or “means”; rather, we look to the
Shepard documents whether the alternatives are elements or
means. The panel’s opinion simply ignores, without
explanation, the Court’s clear command. Remarkably, the
opinion holds that we must do precisely what the Court
instructed us not to do: parse state law to determine whether
the statutory alternatives are elements or means. I regret our
decision not to rehear this case en banc in order to respect our
role as an intermediate appellate court that must follow the
Supreme Court’s instructions.

    A. The Court Expressly Rejected Rendon’s Approach

   Petitioner Carlos Alberto Rendon was convicted of
burglary as defined by California Penal Code section 459:
“Every person who enters [certain locations] with intent to
commit grand or petit larceny or any felony is guilty of
                     RENDON V. HOLDER                           5

burglary.” The inquiry in this case hinges on intent: “intent
to commit . . . larceny or any felony.” Id. (emphasis added).
Everyone agrees that, if Petitioner was convicted of entering
with intent to commit larceny, then the conviction meets the
requisite intent element under the relevant immigration
provision but that, if Petitioner was convicted of entering with
intent to commit some other felony, such as arson, then the
conviction does not meet the requisite intent element under
the relevant immigration provision. Rendon v. Holder,
764 F.3d 1077, 1084 (9th Cir. 2014)

    Analyzing the Supreme Court’s decision in Descamps v.
United States, 133 S. Ct. 2276 (2013), Rendon holds that, for
textually disjunctive statutes, we may look to the Shepard
documents only if the alternatives are elements, such that the
statute describes separate crimes; we may not look to the
Shepard documents if the statute lists only alternative means
of committing the same crime. Rendon, 764 F.3d at 1084–85.
To make the elements/means determination, Rendon requires
that we analyze state law to determine whether the disjunctive
alternatives require juror unanimity. Id. at 1088–90

    The Supreme Court expressly and unambiguously
rejected that approach in Descamps. Descamps involved a
conviction under the same California burglary statute. 133 S.
Ct. at 2282. In the body of the opinion, the Court considered
whether we may examine the Shepard documents to
determine whether the entry was lawful. Id. at 2283–93. By
contrast to the statutory list of alternative intents, the text of
the statute says nothing about the lawfulness of the entry; it
merely states: “Every person who enters . . . .” Cal. Penal
Code § 459. The Court held that, for facts that lack a
statutory hook (such as the lawfulness of the entry), courts
may not look to the Shepard documents unless the fact is an
6                    RENDON V. HOLDER

element of the crime, requiring juror unanimity. Descamps,
133 S. Ct. at 2285–86.

    But the Court held that a different rule applies if the text
of the statute contains a list of alternatives. Writing in
dissent, Justice Alito used the methodology now mandated by
Rendon: he examined the state statutes at issue in the Court’s
previous modified-categorical-approach cases—statutes with
an express list of alternatives in the statutory text. Descamps,
133 S. Ct. at 2297–98 & n.2 (Alito, J., dissenting). He
reviewed state court decisions concerning juror
unanimity—just as Rendon now instructs—and discovered
that the state courts might not require juror unanimity with
respect to at least two of the statutes in the earlier cases; in
the abstract, those statutes likely described alternative means,
not alternative elements. Id. Justice Alito then argued that
the majority’s analysis—at least as he understood
it—contradicted the Court’s earlier cases. Id.

    The Descamps majority’s response is key, so I repeat it
here in full:

           The dissent delves into the nuances of
       various States’ laws in an effort to cast doubt
       on this understanding of our prior holdings,
       arguing that we used the modified categorical
       approach in cases like Taylor, Shepard, and
       Johnson “in relation to statutes that may not
       have been divisible” in the way that we have
       just described. Post, at 2297 (ALITO, J.).
       But if, as the dissent claims, the state laws at
       issue in those cases set out “merely alternative
       means, not alternative elements” of an
       offense, post, at 2298, that is news to us. And
                     RENDON V. HOLDER                          7

        more important, it would have been news to
        the Taylor, Shepard, and Johnson Courts: All
        those decisions rested on the explicit premise
        that the laws “contained statutory phrases that
        cover several different crimes,” not several
        different methods of committing one offense.
        Johnson, 559 U.S., at 144 (citing Nijhawan [v.
        Holder, 557 U.S. 29, 41 (2009)]). And if the
        dissent’s real point is that distinguishing
        between “alternative elements” and
        “alternative means” is difficult, we can see no
        real-world reason to worry. Whatever a
        statute lists (whether elements or means),
        the documents we approved in Taylor and
        Shepard—i.e., indictment, jury instructions,
        plea colloquy, and plea agreement—would
        reflect the crime’s elements. So a court
        need not parse state law in the way the
        dissent suggests: When a state law is
        drafted in the alternative, the court merely
        resorts to the approved documents and
        compares the elements revealed there to
        those of the generic offense.

Descamps, 133 S. Ct. at 2285 n.2 (majority op.) (brackets and
ellipsis omitted) (boldface type emphases added).

    The Descamps majority could not have been plainer.
When there is no statutory list, it is critical whether a fact is
an element of the crime. But the elements/means distinction
is not relevant if the statute lists alternatives: “Whatever a
statute lists (whether elements or means),” courts should
consider “the documents we approved in Taylor and
Shepard.” Id. (emphasis added). “So a court need not parse
8                       RENDON V. HOLDER

state law in the way the dissent[, and now the Rendon panel
opinion,] suggests.” Id. “When a state law is drafted in the
alternative, the court merely resorts to the approved
documents and compares the elements revealed there to those
of the generic offense.” Id. (emphasis added). In other
words, it does not matter whether, in the abstract, the
statutory phrases describe elements or means; what matters is
only what the Shepard documents in that particular case say.
We “need not” look to state court cases; we “merely”—that
is, only—look to the Shepard documents. Id.

    In scores of cases, we and our sister circuits have applied
that simple instruction and have looked to the Shepard
documents whenever confronted with a textually disjunctive
statute.1 That approach is clearly correct: it is not our job, as


    1
    See, e.g., United States v. Gomez, 757 F.3d 885, 900 n.13 (9th Cir.
2014); United States v. Quintero-Junco, 754 F.3d 746, 752 (9th Cir.
2014); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014); Murillo-
Prado v. Holder, 735 F.3d 1152, 1156–57 (9th Cir. 2013) (per curiam);
Duenas-Alvarez v. Holder, 733 F.3d 812, 815 (9th Cir. 2013); United
States v. Ceron, 775 F.3d 222, 228 (5th Cir. 2014) (per curiam); Franco-
Casasola v. Holder, 773 F.3d 33, 38 (5th Cir. 2014); Avendano v. Holder,
770 F.3d 731, 734 (8th Cir. 2014); United States v. Trent, 767 F.3d 1046,
1057 (10th Cir. 2014), cert. denied, 2015 WL 732162 (U.S. Feb. 23, 2015)
(No. 14-7762); United States v. Prater, 766 F.3d 501, 510 (6th Cir. 2014);
United States v. Brown, 765 F.3d 185, 192 (3d Cir. 2014); United States
v. Estrella, 758 F.3d 1239, 1248 (11th Cir. 2014); United States v.
Martinez, 756 F.3d 1092, 1095–96 (8th Cir. 2014); Garcia v. Holder,
756 F.3d 839, 844 (5th Cir. 2014) (per curiam); United States v. Conde-
Castaneda, 753 F.3d 172, 176 (5th Cir.), cert. denied, 135 S. Ct. 311
(2014); United States v. Herrera-Alvarez, 753 F.3d 132, 139–40 (5th Cir.
2014); United States v. Carter, 752 F.3d 8, 17 (1st Cir. 2014); United
States v. Mitchell, 743 F.3d 1054, 1065–66 (6th Cir.), cert. denied, 135 S.
Ct. 158 (2014); United States v. Marrero, 743 F.3d 389, 396 (3d Cir.
2014), cert. denied, 135 S. Ct. 950 (2015); Sarmientos v. Holder, 742 F.3d
624, 629 (5th Cir. 2014); United States v. Covington, 738 F.3d 759, 764
                        RENDON V. HOLDER                                9

an intermediate appellate court, to overrule the Supreme
Court’s plain and applicable pronouncements, whether
brilliantly or poorly reasoned. Indeed, the Supreme Court
repeatedly has held that we must follow its holdings unless
and until the Supreme Court itself overrules them. See
United States v. Hatter, 532 U.S. 557, 567 (2001) (“The
Court of Appeals was correct in applying [existing precedent]
to the instant case, given that ‘it is this Court’s prerogative
alone to overrule one of its precedents.’” (quoting State Oil
Co. v. Khan, 522 U.S. 3, 20 (1997))); Agostini v. Felton,
521 U.S. 203, 237 (1997) (“We reaffirm that ‘if a precedent
of this Court has direct application in a case, yet appears to
rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling
its own decisions.’” (brackets omitted) (quoting Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989))). There is no authority for the proposition that we
may ignore part of an opinion if we have doubts about its
correctness or wisdom. No further inquiry or analysis is
required or permitted: when the Supreme Court has
instructed us clearly and unambiguously, we must follow its
instructions.

    B. Footnote 2 of Descamps Is Consistent With the Main
       Holding

   I recognize that some judges have expressed concern
about how to reconcile footnote 2 with the more general
holding of Descamps and that some cases have applied


(6th Cir. 2014); United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir.
2013), cert. denied, 134 S. Ct. 1044 (2014); United States v. Barker,
723 F.3d 315, 320 (2d Cir. 2013) (per curiam).
10                      RENDON V. HOLDER

Rendon’s methodology, mostly by ignoring Descamps’
footnote 2.2 I agree that, at first blush, it is not obvious how
to reconcile the reasoning in the main body of Descamps,
which concerned facts with no statutory hook, with the
Court’s instructions in footnote 2, which concerned statutory
alternatives. If the elements/means distinction is critical to
the former category, as the Court held, it is not self-evident
why the distinction is irrelevant to the latter category, as the
Court also held.

    Closer examination reveals that the two holdings may be
reconciled. As an initial matter, much of the Court’s
description in the text foreshadows its holding, in footnote 2,
that alternative statutory phrases are different from general
facts with no statutory hook. “‘The “modified categorical
approach” that we have approved permits a court to
determine which statutory phrase was the basis for the
conviction.’” Descamps, 133 S. Ct. at 2285 (brackets
omitted) (emphasis added) (quoting Johnson v. United States,
559 U.S. 133, 144 (2010)). Accordingly, we may “determine
which statutory phrase [here, intent to commit larceny or any
felony] was the basis for the conviction.” Id. We look to the
Shepard documents when a statute “sets out one or more
elements of the offense in the alternative—for example,
stating that burglary involves entry into a building or an
automobile.” Id. at 2281. Here, the burglary statute “sets out

  2
     See Omargharib v. Holder, 775 F.3d 192, 198–99 (4th Cir. 2014)
(agreeing with Rendon); United States v. Abbott, 748 F.3d 154, 159 (3d
Cir. 2014) (looking beyond the statutory text, without explanation); United
States v. Pate, 754 F.3d 550, 554–55 (8th Cir.) (same), cert. denied, 135
S. Ct. 386 (2014); Omargharib, 775 F.3d at 201 (Niemeyer, J.,
concurring) (questioning the meaning of footnote 2); Trent, 767 F.3d at
1058–61 (same); United States v. Howard, 742 F.3d 1334, 1343 n.3 (11th
Cir. 2014) (same).
                    RENDON V. HOLDER                        11

one or more elements [the element of intent] in the
alternative—for example, stating that burglary involves entry
[with intent to commit larceny] or [any felony].” Id.

     The textual approach is in no way problematic—
constitutionally, statutorily, or otherwise. Consider a state
drug-possession criminal statute that contains a list of
controlled substances, some of which meet the federal
definition and some of which do not. If the jury instructions
required the jury to find that the defendant possessed, say,
cocaine (a drug on the federal schedules), then we know that
the jury unanimously found that the defendant possessed
cocaine. But if the instructions required only that the
defendant possessed an unspecified “controlled substance,”
then we do not know whether the jury found that he or she
possessed cocaine or some drug not listed in the federal
schedules, such as “khat.” Similarly, if the instructions
required the jury to find that the defendant possessed either
cocaine or khat, then we also do not know whether the jury
found that he or she possessed a federally scheduled drug
unless a special verdict form or judgment makes clear that the
only substance possessed was cocaine. In all cases, the
modified categorical approach will return a match only if we
know that what the jury found is within the federal definition.
It is irrelevant whether, in the abstract, a jury would have to
be unanimous in the unusual case in which evidence
suggested that a defendant possibly possessed both cocaine
and khat.

    The Supreme Court rejected that reasoning with respect
to facts with no statutory hook because, at trial, “extraneous
facts and arguments may confuse the jury” and, at a plea
colloquy, defendants might decline to object to extraneous
facts so as not to “irk the prosecutor or court.” Descamps,
12                   RENDON V. HOLDER

133 S. Ct. at 2289. Where the text is silent, we might worry
that the defendant would not “squabbl[e] about superfluous
factual allegations.” Id. But, critically, when it comes to a
statutory list of alternatives from which a jury must find—or
a defendant must admit—one alternative, those concerns have
no realistic practical application. It is exceedingly unlikely
that a jury would find, or that a defendant would admit, an
inapplicable item on the statutory list. Rather, the Shepard
documents allow the court to know whether a defendant
admitted, or a jury found, a specific statutory alternative.
Although one might conjure up a scenario in which a
defendant somehow falsely admitted that he committed the
crime involving a particular statutory alternative, the
categorical approach ultimately is grounded in reality, not in
an exercise in improbable theoretical musings. See Gonzales
v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (requiring, in
the application of the categorical approach, “a realistic
probability, not a theoretical possibility,” that the state would
apply its statute in a particular way).

     C. The Issue Is Exceptionally Important

    The modified categorical approach arises frequently in
both immigration and criminal cases—categories that
comprise a substantial majority of our docket. Rendon’s rule
will apply to future panels of this court, district court judges
in the Ninth Circuit, the Board of Immigration Appeals
(“BIA”), and immigration judges. Going forward, instead of
simply reading the statutory text, we now will be required to
delve into the nuances of a seemingly endless variety of state
laws in order to determine whether, in the abstract, a jury
must unanimously agree as to which statutory alternative the
                          RENDON V. HOLDER                                   13

defendant committed—a notoriously uncertain inquiry.3 In
other words, Rendon not only contradicts the Supreme
Court’s express holding, but it sets us—and district judges,
the BIA, and immigration judges—down a complicated path
of examining state law that leads to uncertain results.

    Rendon also sows confusion in our existing caselaw. For
example, the Supreme Court has looked to the Shepard
documents when analyzing textually disjunctive statutes such
as burglary in Massachusetts and battery in Florida. Shepard
v. United States, 544 U.S. 13, 17 (2005); Johnson, 559 U.S.

   3
        For example, when Justice Alito examined the juror unanimity
question concerning the state statutes of the Court’s three earlier cases, he
was able to reach only tentative conclusions with respect to two of them.
See, e.g., Descamps, 133 S. Ct. at 2298 (Alito, J., dissenting) (“I have not
found a Massachusetts decision squarely on point, but there is surely an
argument that the Massachusetts Legislature did not want to demand juror
agreement on this question.”); id. (“It is a distinct possibility (one not
foreclosed by any Florida decision of which I am aware) that a conviction
under this provision does not require juror agreement . . . .”). With respect
to the last case, even a tentative conclusion was hard to reach. See id. at
2298 n.2 (“The remaining case, Taylor v. United States, 495 U.S. 575
(1990), may also have involved a statute that was not divisible, but the
situation is less clear. . . . It is not entirely clear whether a Missouri court
would have required jurors to agree on a particular choice from this
list. . . . [I]t is possible that the Missouri court did not mean to say that the
type of building was an element . . . .” (citations omitted)); see also
Omargharib, 775 F.3d at 200 (Niemeyer, J., concurring) (“While Judge
Floyd concludes that the applicable Virginia law defines alternative
means, thereby precluding use of the modified categorical approach under
current law, I find it especially difficult to comprehend the distinction.
Virginia’s law could just as easily be viewed as prescribing two crimes
. . . .”); United States v. Ramirez-Macias, 584 F. App’x 818, 820 (9th Cir.
2014) (unpublished) (Hawkins, J., concurring) (stating that, whether
California law requires juror unanimity with respect to the type of drug
possessed “is fairly open to debate” and “much rides on the answer to this
question [of juror unanimity]”).
14                      RENDON V. HOLDER

at 137. If we determine, as Justice Alito asserted, Descamps,
133 S. Ct. at 2298, that those crimes list alternative means,
will we decline to look to the approved documents, thereby
effectively overruling Shepard and Johnson? Or will we hold
that those state statutes are exceptions to Rendon’s rule for
the arbitrary reason that the Supreme Court happened to
decide cases involving those statutes?

    A similar analysis applies to our own cases. In cases we
decided after Descamps and before Rendon, we simply have
looked to the Shepard documents when confronted with a
textually disjunctive statute. See, e.g., Murillo-Prado v.
Holder, 735 F.3d 1152, 1156–57 (9th Cir. 2013) (using
Shepard documents after noting that the Arizona racketeering
statute provides a disjunctive list); Duenas-Alvarez v. Holder,
733 F.3d 812, 815 (9th Cir. 2013) (using Shepard documents
after noting that the California vehicle-theft statute provides
a disjunctive list). If a later panel determines that, applying
Rendon’s methodology, the statutes list alternative means,
may the panel overrule the earlier cases?4 If not, must the
panel simply look to the Shepard documents, even though the
panel believes that Rendon forbids that approach?

    This is not an idle concern. In Coronado v. Holder,
759 F.3d 977 (9th Cir. 2014), cert. denied, 2015 WL 852424
(U.S. Mar. 2, 2015) (No. 14-461), decided before Rendon, we
held that we may look to the Shepard documents to determine
the controlled substance involved in a previous conviction


  4
     Of course, the decision of one three-judge panel cannot overrule
another three-judge panel unless intervening higher authority “is clearly
irreconcilable with our prior circuit authority,” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc), which is questionable in this
context.
                        RENDON V. HOLDER                              15

under California drug-crime laws. Although a post-Rendon
case applied that approach, at least one judge questioned the
correctness of Coronado under Rendon’s approach. United
States v. Ramirez-Macias, 584 F. App’x 818, 820 (9th Cir.
2014) (unpublished) (Hawkins, J., concurring). Petitions for
rehearing en banc remain outstanding in Ramirez-Macias and
several other cases involving California drug-crime laws.

    Those drug laws illustrate the absurdity of Rendon’s
approach. In nearly every drug conviction in California, there
is only one substance at issue. In order for the jury to
convict, it must find that the defendant possessed5 that
substance. Similarly, in order for a court to accept a
defendant’s plea, the defendant must admit to possessing that
substance. It is unclear whether a prosecutor ever charges a
defendant—in a single count—with possessing “any one of
several” controlled substances. Indeed, despite thousands of
drug convictions over decades of enforcement, there is no
California court case on point answering whether a jury must
be unanimous in that exceedingly unusual circumstance. Yet
Rendon seems to require that we ask that exact question.
Moreover, if we determine that, in the abstract, juror
unanimity is not required, then it seems we must ignore all
California drug convictions in every context, even if everyone
agrees that there was only one substance at issue in the case
at hand. The absurdity of that conclusion is only amplified by
the fact that the Supreme Court told us precisely not to
undertake this entire inquiry, now mandated by Rendon.




  5
    I use possession in text, but the analysis applies equally to all drug
convictions, including delivery, sale, conspiracy, manufacture, etc.
16                    RENDON V. HOLDER

     D. Conclusion

     Rendon holds that we may look to the Shepard documents
only if a statute lists alternative elements, but not if the statute
lists alternative means. Rendon, 764 F.3d at 1084–85.
Descamps held that we look to the Shepard documents
“[w]hatever a statute lists (whether elements or means).”
133 S. Ct. at 2285 n.2. Rendon requires us to look to state
law to determine juror unanimity, the same inquiry
undertaken by the dissent in Descamps. Rendon, 764 F.3d at
1088–90. Descamps held that “a court need not parse state
law in the way the dissent suggests: When a state law is
drafted in the alternative, the court merely resorts to the
approved documents.” 133 S. Ct. at 2285 n.2. In the face of
this clear conflict, Rendon is silent.

    As described above, Rendon’s undue and unsupported
complicating of the modified categorical approach will have
substantial effects on our immigration and criminal cases.
But my concern extends beyond even those considerable
shores. I am troubled on a deeper level by the panel’s
decision simply to ignore an on-point holding of the Supreme
Court and by the full court’s decision not to rehear this case
en banc to correct that egregious error. The proper
functioning of our tiered judicial system requires that we
follow the Supreme Court’s holdings, even if we disagree
with them. With regret, I dissent from the denial of rehearing
en banc.
                     RENDON V. HOLDER                         17

KOZINSKI, Circuit Judge, dissenting from the denial of
rehearing en banc:

    Judge Graber’s dissental provides many excellent reasons
why this case should have been reheard en banc. I write only
to suggest an alternative reading of Descamps’s footnote 2,
one that I believe better reconciles the footnote’s text with the
rest of the Court’s opinion.

    In my view, footnote 2 indicates that, when confronted
with a statute phrased in the disjunctive, we should look to
the Shepard documents for the limited purpose of
determining what that statute’s elements are. Footnote 2
states, “Whatever a statute lists (whether elements or means),
the [Shepard] documents . . . reflect the crime’s elements.”
Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)
(emphasis added). It also says, “When a state law is drafted
in the alternative, [a] court merely resorts to the approved
documents and compares the elements revealed there to those
of the generic offense.” Id. (emphasis added). These
sentences clearly indicate that the Court believed a crime’s
elements can be discerned from the Shepard documents, and
that we are permitted to look to them for that purpose.

    This does not mean, however, that we should use the
modified categorical approach irrespective of whether a
statute lists “elements” or “means.” Rather, Descamps
permits us to peek at the Shepard documents in order to
determine which approach to use. If those documents show
that a statutory term was an element of the offense, we may
employ the modified categorical approach and use the
documents to determine whether a defendant committed a
state crime falling within the ambit of the relevant federal
statute. But if the Shepard documents instead show that the
18                   RENDON V. HOLDER

statutory alternative was simply a means of committing the
offense, then we are not permitted to further use those
documents to determine whether the defendant in fact
committed an offense falling within the federal definition.

    In this case, therefore, the panel should have initially
looked to the Shepard documents for the sole and limited
purpose of determining whether “intent to commit larceny”
was an element of the offense. If the documents revealed it
was not an element, the panel could conclude—as it did—that
California Penal Code section 459 is categorically broader
than an attempted theft offense under 8 U.S.C.
§ 1101(a)(43)(U), and that petitioner’s conviction under the
state statute did not render him ineligible for cancellation.
That is so even if the Shepard documents also revealed that
petitioner, as a factual matter, had an intent to commit larceny
and had therefore attempted to commit a “theft offense”
within the meaning of the federal statute. In short, a court
should first look to the Shepard documents to determine a
crime’s elements, and then, on that basis, decide whether the
categorical or modified categorical approach is appropriate.

    Such a methodology is the best, and perhaps only, way to
reconcile the text of Descamps’s footnote 2 with the rest of
the opinion. Given Descamps’s singular focus on conducting
“an elements-based inquiry” rather than an “evidence-based
one,” Descamps, 133 S. Ct. at 2287, it would make little
sense for us to treat elements and means interchangeably. On
the other hand, I cannot endorse the panel’s implicit
conclusion that footnote 2 is just a cluster of errant sentences,
irreconcilable with the rest of the opinion and free for us to
disregard. Descamps makes clear that “a court need not parse
state law” to determine a crime’s elements, and the panel’s
                     RENDON V. HOLDER                        19

holding is in open conflict with that pellucid instruction. Id.
at 2285 n.2.

    I admit that examining the Shepard documents to
determine an offense’s elements comes with its own set of
problems. The documents may not clearly reveal which
statutory terms are, in fact, elements. And, even if they do,
reliance on such documents will inevitably mean that
convictions under the same state statute will sometimes be
treated differently for federal law purposes. But there’s no
perfect way of handling disjunctive statutes, and the approach
footnote 2 adopts seems to me as good as any. It limits
judicial fact-finding to the narrow and inescapable task of
determining what an offense’s elements are. And it doesn’t
require us to engage in the laborious and often inscrutable
exercise of parsing state law.

    More importantly, whether or not one agrees with
Descamps’s methodology, we are obligated to implement it.
Given the degree of conflict and confusion amongst the
circuits, the Supreme Court will surely revisit this issue
sooner rather than later. And, when it does so, I believe it
will tell us in no uncertain terms that the panel’s opinion here
has led us badly astray.
