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

                                  No. 12-60977
                                                                          Fifth Circuit

                                                                        FILED
                                                                  October 23, 2014
                                                                   Lyle W. Cayce
DONALD EFREN FRANCO-CASASOLA,                                           Clerk


                                            Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent



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


                 ON PETITION FOR PANEL REHEARING


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge.
      Donald Efren Franco-Casasola’s petition for panel rehearing is DENIED.
We withdraw our prior opinion of March 6, 2014, and substitute the following.
      The Board of Immigration Appeals (“BIA”) determined that Franco-
Casasola was ineligible for cancellation of removal due to his conviction of an
aggravated felony. In our prior panel opinion, we concluded the BIA did not
err in determining that his statute of conviction was divisible. We applied the
modified categorical approach to decide he had been convicted of an aggravated
felony. In his petition for rehearing, Franco-Casasola contends that under the
recent Supreme Court authority, it was error to conclude that his statute of
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                                 No. 12-60977
conviction was divisible. See Descamps v. United States, 133 S. Ct. 2276 (2013).
We disagree. Accordingly, we DENY the petition for review. We substitute
the following opinion to explain the Court’s holding in Descamps.
              FACTUAL AND PROCEDURAL BACKGROUND
      Franco-Casasola, a native and citizen of Guatemala, was admitted as an
immigrant in Los Angeles, California, on May 29, 1992. On June 6, 2011, the
Department of Homeland Security (“DHS”) issued a notice to appear alleging
that on April 1, 2011, Franco-Casasola was convicted of the fraudulent
purchase of firearms for export in violation of 18 U.S.C. § 554(a). The notice
alleged he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien
convicted of an aggravated felony, namely “illicit trafficking in firearms.” See
8 U.S.C. § 1101(a)(43)(C). Franco-Casasola denied the charges of removability
and filed an application for cancellation of removal.      DHS responded by
contending he was ineligible for cancellation of removal because of his
conviction for an aggravated felony. See 8 U.S.C. § 1229b(a).
      The Immigration Judge (“IJ”) held an evidentiary hearing.            DHS
submitted the indictment charging Franco-Casasola with conspiracy to
purchase and export firearms and ammunition to drug cartels in Guatemala
in violation of Section 554(a). Franco-Casasola pled guilty to buying five semi-
automatic pistols knowing they were intended for export to Guatemala. The
IJ decided that Franco-Casasola’s conviction under Section 554(a) did not
constitute the aggravated felony of illicit trafficking in firearms, making him
eligible for discretionary relief from removal. It then determined, after having
also heard testimony of Franco-Casasola’s permanent resident status, work
history, and family ties to the United States, that his case merited a favorable
exercise of discretion and granted his application for cancellation of removal.
DHS appealed to the BIA.


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                                 No. 12-60977
      The BIA disagreed with the IJ. It concluded that Franco-Casasola’s
conviction under Section 554(a) did constitute the aggravated felony of illicit
trafficking in firearms, thereby making cancellation of removal unavailable.
Franco-Casasola timely petitioned for review, and we denied his petition,
agreeing with the conclusion of the BIA. We now consider Franco-Casasola’s
petition for rehearing of our prior opinion.
                                 DISCUSSION
      Generally, this court reviews only the final decision of the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). The BIA’s determination that an
alien is ineligible for cancellation of removal is a question of law we review de
novo. Vasquez-Martinez v. Holder, 564 F.3d 712, 715 (5th Cir. 2009). While
we give deference to the BIA’s interpretation of immigration statutes, we
review de novo the BIA’s determination of whether a particular state or federal
crime qualifies as an aggravated felony. Id. at 717; Patel v. Mukasey, 526 F.3d
800, 802 (5th Cir. 2008).
      An alien is eligible to seek discretionary cancellation of removal if he has
been a lawful permanent resident for at least five years, has resided in the
United States continuously for seven years after having been admitted under
any status, and has not been convicted of an aggravated felony. 8 U.S.C.
§ 1229b(a). An alien seeking cancellation of removal has the burden of showing
by a preponderance of the evidence “that he is not an aggravated felon and is
therefore statutorily eligible for relief.” Vasquez-Martinez, 564 F.3d at 715.
      The question presented on appeal is how to determine whether a prior
offense qualifies as an aggravated felony.      We start with the categorical
approach in making that determination. Larin-Ulloa v. Gonzalez, 462 F.3d
456, 463 (5th Cir. 2006). Using this approach, the court “refer[s] only to the
statutory definition of the crime for which the alien was convicted . . . and
ask[s] whether that legislatively-defined offense necessarily fits within the
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INA definition of an aggravated felony.” Id. (citations omitted). The statute
under which Franco-Casasola was convicted provides:
      Whoever fraudulently or knowingly exports or sends from the
      United States, or attempts to export or send from the United
      States, any merchandise, article, or object contrary to any law or
      regulation of the United States, or receives, conceals, buys, sells,
      or in any manner facilitates the transportation, concealment, or
      sale of such merchandise, article or object, prior to exportation,
      knowing the same to be intended for exportation contrary to any
      law or regulation of the United States, shall be fined under this
      title, imprisoned not more than 10 years, or both.
18 U.S.C. § 554(a). This unusual criminal statute depends on there being other
laws or regulations that make unlawful the specific actions taken. As we will
explain, the relevant elements of those other laws and regulations will also be
included in an indictment and the fact-finder will need to determine they were
committed. The aggravated felonies listed in the Immigration and Nationality
Act include “illicit trafficking in firearms or destructive devices. . . .” 8 U.S.C.
§ 1101(a)(43)(C). The government does not argue that we should also examine
the other statute and regulations incorporated into this specific indictment and
apply the categorical approach to the entirety. In any event, the categorical
approach does not answer whether Franco-Casasola’s conviction was for the
aggravated felony of illicit trafficking in firearms.
      We turn to the modified categorical approach. Larin-Ulloa, 462 F.3d at
464. This alternative requires that the statute of conviction be divisible. Id.
When a statute of conviction is divisible, the modified categorical approach
allows examination of “the charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by the trial judge
to which the defendant assented” in addition to the language of the statute of
conviction to determine if a prior conviction constitutes an aggravated felony.
Id. (citations and quotations omitted).

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                                  No. 12-60977
      The Supreme Court has never addressed a statute of conviction that
depends on other statutes and regulations to provide the specific elements of
the offense charged. We conclude the Court would not declare that Congress’s
method of defining a crime under Section 554(a) makes the modified
categorical approach inapplicable. Indeed, its application is straightforward.
The approach can apply if we remain loyal to the central tenet of divisibility
analysis of examining the statutorily provided elements of the offense. Only
those elements may be used to form the relevant generic offense:
      The modified approach thus acts not as an exception [to the
      categorical approach], but instead as a tool. It retains the
      categorical approach's central feature: a focus on the elements,
      rather than the facts, of a crime. And it preserves the categorical
      approach's basic method: comparing those elements with the
      generic offense's.

Descamps, 133 S. Ct. at 2285. Section 554(a) criminalizes actions that are
contrary to other laws and regulations. Once specifically identified in an
indictment, those laws and regulations can also be the subject of the modified
categorical approach. We will remain focused on the statutory elements of the
offense charged and not on the facts of the offense committed.
      The IJ and the BIA disagreed on the issue of whether Section 554(a) is
divisible for purposes of application of the modified categorical approach. The
BIA determined that Section 554(a) was divisible, relying on one of its earlier
decisions and explaining that its methodology for analyzing whether a statute
of conviction is divisible varies from the analysis this court uses. See Matter of
Lanferman, 25 I. & N. Dec. 721, 725 (BIA 2012). In Lanferman, the BIA
determined that in the immigration context, divisibility should be permitted
in “all statutes of conviction . . . regardless of their structure, so long as they
contain an element or elements that could be satisfied either by removable or
non-removable conduct.” Id. at 727 (citations omitted). In selecting this broad

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methodology for determining divisibility, the BIA specifically rejected as too
formulaic this Court’s divisibility approach. Id. at 725 (citing Amouzadeh v.
Winfrey, 467 F.3d 451, 455 (5th Cir. 2006); Larin-Ulloa, 462 F.3d 456). Here,
the BIA applied its Lanferman decision to conclude Section 554(a) was
divisible.
       After the initial briefing in this case, the Supreme Court addressed the
function of the modified categorical approach:        “It helps effectuate the
categorical analysis when a divisible statute, listing potential offense elements
in the alternative, renders opaque which element played a part in the
defendant’s conviction.” Descamps, 133 S. Ct. at 2283. The court explained
that a statute defining an offense overbroadly is not divisible, a point we
discuss below; a divisible statute is one defined “alternatively, with one
statutory phrase corresponding to the generic crime and another not.” Id. at
2286. The approved documents could then be used in the modified approach
to discover “which statutory phrase, contained within a statute listing several
different crimes, covered a prior conviction.”      Id. at 2285 (citations and
quotations omitted).
       The Ninth Circuit’s Descamps decision concluded that the conceptual
difference between divisible and indivisible statutes, i.e., that a divisible
statute “creates an explicitly finite list of possible means of commission, while
[an indivisible one] creates an implied list of every means of commission that
otherwise fits the definition of a given crime,” was not a meaningful one for
purposes of the modified categorical approach.      Id. at 2289 (citations and
quotations omitted; alterations in original). The Court used the Ninth Circuit’s
own example to illustrate why the difference is, in fact, meaningful. The
example used is the contrast between a statute that uses the term “weapon”
and another that lists every kind of weapon in the statutory text of the offense.
Id.   The Supreme Court warned against the Ninth Circuit’s approach of
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reconceiving broad, indivisible statutes, like the “weapon” example, into
divisible ones; unlike statutes with explicitly finite lists of means of
commission, indivisible statutes do not enable the conclusion that “a jury (or
judge at a plea hearing) has convicted the defendant of every element of the
generic crime.” Id. at 2289-90. “As long as the statute itself requires only an
indeterminate ‘weapon,’ that is all the indictment must (or is likely to) allege
and all the jury instructions must (or are likely to) mention.” Id. at 2290.
      This example of what the Supreme Court rejected assists our analysis,
as Section 554(a) provides a statutory means to make the objects of its reach
determinate.    Franco-Casasola’s statute of conviction prohibits exporting,
buying, selling, and other activities that facilitate the transportation of
“merchandise, article[s], or object[s] contrary to any law or regulation of the
United States. . . .” 18 U.S.C. § 554(a). Franco-Casasola violated the statute
by fraudulently purchasing firearms for export to Guatemala. It is true that
Section 554(a) does not list various merchandise, articles, or objects, and does
not list “firearms” as an alternative element of the offense. It does, however,
create an explicitly finite list of merchandise, articles, and objects in that it
requires the defendant’s actions to be “contrary to any law or regulation of the
United States.” The statute thereby incorporates as divisible elements the
finite, though lengthy, list of every statute and regulation of the United States
that make facilitating the transportation of “merchandise, article[s], or
object[s]” an act that is “contrary to any law[.]”
      A prosecutor charging a violation of Section 554(a) must select the
relevant elements from the possible alternative statutes and regulations. See
Descamps, 133 S. Ct. at 2289-90. Unlike the class of “overbroad” statutes
Descamps describes, Section 554(a) requires the government to allege the
defendant illegally facilitated the transportation of specific items identified in
a statute.   The problem in the Descamps example was that no statutory
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                                  No. 12-60977
language indicated the kind of weapon relevant to the crime. The statutes and
regulations identified in this indictment satisfy the divisibility requirement of
Descamps and enable us “to determine whether the conviction was ‘necessarily’
for a particular crime defined by the statute that meets the [relevant]
criterion.” Larin-Ulloa, 462 F.3d at 464 (citing Shepard v. United States, 544
U.S. 13, 20-21 (2005)).
      Consequently, the statute is divisible. Of course, that fact does not
answer our ultimate question, which is whether this conviction was for a
firearms-trafficking offense. For example, in a recent decision, the part of a
divisible statute on which the conviction was based did not satisfy the relevant
criterion, which was that a prior conviction be for drug trafficking, though
other parts of the divisible statute would have sufficed. See United States v.
Nunez-Segura, 566 F. App’x 389, 393 (5th Cir. 2014). The government argued
that record evidence outside of the statute should be used to narrow the
statutory language, but we rejected that approach. Id. at 393-94. Though the
opinion is not precedential, we conclude it is consistent with our analysis here.
      We now apply the modified categorical approach to determine if the
applicable part of this finite list of alternative ways to commit a Section 554(a)
crime constituted trafficking in firearms. When there has been a “guilty plea
conviction[] under such a divisible statute, we may consider, in addition to the
language of the statute [here, all the statutes and regulations criminalizing
the transportation of merchandise, articles, or objects], the charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” Larin-Ulloa, 462
F.3d at 464 (citations and quotations omitted).
      Franco-Casasola pled guilty to Count 18 of the indictment. As just noted,
the indictment is one of the approved sources for determining which of several
divisible elements of an offense apply to the conviction. One reason for its
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                                 No. 12-60977
inclusion in the approved sources for providing the needed narrowing of
broader statutes is that an indictment must “contai[n] the elements of the
offense charged and fairly infor[m] a defendant of the charge against which he
must defend . . . .” United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007)
(quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). A defendant then
is entitled to have jury instructions articulate all the essential elements of a
charged offense. United States v. Hickman, 331 F.3d 439, 443 (5th Cir. 2003).
      The difficulty in Descamps was that the indictment could not narrow the
overly-broad statute to a generic burglary because one element of generic
burglary was not in the statute. “Whereas burglary statutes generally demand
breaking and entering or similar conduct, California's does not: It covers, for
example, a shoplifter who enters a store, like any customer, during normal
business hours.” Descamps, 133 S.Ct. at 2282. The district court in Descamps
had determined from the plea colloquy in state court that a breaking and
entering had actually occurred.     Id.    The colloquy, though, merely gave
evidence of what Descamps factually had done and could not narrow the
statutory crime. Thus the district court had gone outside the statute to narrow
it. Regardless of whether Descamps actually broke and entered and thereby
committed generic burglary, the statute of conviction itself “does not require
the factfinder (whether jury or judge) to make that determination.” Id. at 2293.
      As we will show, Franco-Casasola’s statute of conviction, namely, Section
554(a), requires that he have also violated other statutes, which themselves
provide elements that must be charged and proven to fact-finders. Thus, even
though Section 554(a) does not contain all the needed terms for our analysis of
whether Franco-Casasola committed an aggravated felony, neither an
indictment nor proper jury instructions would have charged him only with
fraudulently buying in a manner that facilitated the transportation of “any
merchandise, article or object, prior to exportation, knowing the same to be
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                                 No. 12-60977
intended for exportation contrary to any law or regulation of the United
States.” This indictment, as it was required to do, also charged specific laws
that he violated and identified the operative terms. As we will show, jury
instructions would have done the same.         Thus Section 554(a) is not an overly
broad statute as was that for burglary in California where, after conviction,
only the facts of the crime but not the statute provided the necessary elements
for an aggravated felony. Instead, reliance solely on the indictment will allow
identification of the statutory elements that apply to the offense for which this
defendant was charged and which a judge in accepting his guilty plea had to
determine he had committed.
      The indictment charged Franco-Casasola with violating Section 554(a)
by engaging in conduct contrary to the Arms Export Control Act and certain
International Trafficking in Arms Regulations. The merchandise identified in
the indictment were five semi-automatic pistols of a specific manufacture. The
specific language of the Count is this:
             On or about October 21, 2008, in the Middle District of
      Tennessee and elsewhere, defendant DONALD EFREN FRANCO,
      aided and abetted by others known and unknown to the Grand
      Jury, did fraudulently and knowingly buy, receive, conceal and
      facilitate the transportation, concealment and sale, prior to export
      from the United States, of merchandise, articles and objects, to wit:
      five FNH, Model Five-seven, 5.7 x 28mm semi-automatic pistols
      bearing serial numbers [XXX], knowing these to be intended for
      export to Guatemala without having obtained the required license
      and authorization from the United States Department of State,
      contrary to the Arms Export Control Act, Title 22, United States
      Code, Section 2778(b)(2) and (c), and the International Trafficking
      in Arms Regulations, Title 22, Code of Federal Regulations,
      Sections 121.3, 123.1 and 127.1.
             In violation of Title 18, United States Code, Sections 554(a)
      and 2.
      The indictment started with the broad language under Section 554(a),
then worked through each of the narrowing statutes and regulations.               In
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                                         No. 12-60977
summary, the charge under the base statute is for buying and facilitating the
transportation of “any merchandise, article, or object contrary to any law . . . .”
18 U.S.C. § 554(a). The indictment then identifies the Armed Export Control
Act as such a law. Its statutory elements are that “no defense articles or
defense services designated by the President . . . may be exported or imported
without a license for such export or import.” 22 U.S.C. § 2778(b)(2); see also §
2278(c) (prescribing the penalties for violations).                   Then the regulations
identified in the indictment elaborate on the “defense articles.” 1                     Defense
articles can be exported, but a cited regulation provides that “approval of the
Directorate of Defense Trade Controls” must be obtained. 22 C.F.R. § 123.1(a).
The final regulation cited in the indictment says it is unlawful “[t]o export or
attempt to export from the United States any defense article . . . .” 22 C.F.R. §
127.1(a)(1). A regulation not listed in the indictment defines defense articles
as “firearms,” “technical data,” and “defense services.” 22 C.F.R. § 121.1.
       We highlight a few parts of the indictment. The statutes cited in the
indictment clarify that Franco-Casasola could not have been convicted without
finding that he conspired to export “defense articles.” The indictment did not
use the phrase “defense articles” but instead articulated the relevant one that
is explicitly covered by a referenced regulation, namely, firearms.                           The
indictment charges that the defendant engaged in conduct under the Arms
Export Control Act specifically with regards to five semi-automatic pistols. At
no point is it necessary to rely on factual assertions to narrow a broader word
such as “weapons.” Instead, each step of the analysis under the statutes and
regulations listed in the indictment follows the modified categorical approach
of narrowing a list — quite a list, but still just a list.



       1  The first regulation apparently was cited in error, as it defines “aircraft” as a defense
article for the purposes of import or export controls. 22 C.F.R. § 121.3.
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                                 No. 12-60977
      The indictment thus charged Franco-Casasola under Section 554(a),
which itself relies on actions that violate other laws and regulations, and also
the specific statutory manner in which this Section 554(a) offense was
committed. Before accepting Franco-Casasola’s guilty plea, the district judge
needed to “compare: (1) the conduct to which the defendant admits; and (2) the
elements of the offense charged in the indictment.” United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012) (citing United States v. Marek, 238 F.3d 310,
315 (5th Cir. 2001)). Acceptance of a guilty plea implies that the district court
determined that the accused’s “admitted conduct satisfied every element” of
the indicted offense. Id. The elements of the indicted offense under Section
554(a) are not just the general ones of that statute but also the more specific
elements charged that are based on the accompanying statutory violations
described in the indictment. In other words, not only must Franco-Casasola
be convicted of the elements of Section 554(a) which are a predicate to any
indictment under that statute, he must also have been found guilty of each
element of the other statutes that complete the offense. We have quoted the
indictment. We have demonstrated that the elements of the offense that he
fraudulently bought five semi-automatic pistols, knowing that they were
intended for export to Guatemala and that the required license for the export
had not been obtained, are all elements based on the statute or the regulations
authorized by the statutes. Unlike in Descamps, the judge needed to determine
that Franco-Casasola had violated these specific provisions.
      Though this conviction resulted from a guilty plea, our analysis must
also be applicable to a jury trial. Jury instructions need to charge each of the
essential elements from the indictment, leaving it for jurors to determine
whether the evidence supported each of those elements. Hickman, 331 F.3d at
443; see also Decamps, 133 S. Ct. at 2293. Two discovered examples of Section
554(a) prosecutions from this circuit reveal that the instructions have
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                                No. 12-60977
contained this kind of specificity for jurors, based on indictments which
provided a thorough recounting of the general elements of Section 554(a) and
the specific elements of the additional laws that complete the charged offense.
See United States v. Reyes, 559 F. App’x 274 (5th Cir. 2014) (indictment and
instructions are in 2:11-cr-01974-AM-3 (W.D. Tex.), ECF No. 17 (indictment),
and No. 131 (instructions); United States v. Bernardino, 444 F. App’x 73 (5th
Cir. 2011) (indictment and instructions are in 4:09-cr-00160-A-5 (N.D. Tex.),
ECF No. 65 (indictment), and No. 147 (instructions)).
      In an appeal from one of those convictions, we rejected the argument that
another instruction had improperly been denied. Bernardino, 444 F. App’x at
74. The instruction would have informed jurors of a different mens rea
allegedly relevant to the Arms Export Control Act, 22 U.S.C. § 2778(b)(2). We
held that the defendant was convicted under Section 554(a), not under Section
2278(b)(2), and that the mental state necessary for Section 554(a) was the only
one that had to be explained to jurors. Id. What he requested was this
instruction: “That the defendant acted ‘willfully,’ that is, that the defendant
knew such license was required for the export of these articles and intended to
violate the law by exporting them without a license.” As can be seen from a
review of the instructions as cited above, all other elements of the Section
2778(b)(2) offense were explained to jurors, such as requiring a finding that
the exported items were on the United States Munitions List and that the
defendant had failed to obtain a license as required by Section 2778.
      Should there be inconsistent provisions between Section 554(a) and one
of the additionally indicted statutes, such as for the applicable mental state,
those inconsistencies need to be resolved when instructing jurors. By its very
nature, Section 554(a) requires that there be other laws that complete the
offense that is charged. An indictment under Section 554(a) requires stating
the other laws the defendant acted contrary to.
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                                  No. 12-60977
      We have gone one step further than the Supreme Court has had to so far
but have not strayed from the path it has marked. A divisible statute is one
defined “alternatively, with one statutory phrase corresponding to the generic
crime and another not.” Descamps, 133 S. Ct. at 2286. In conducting the
Section 554(a) analysis, which by its nature relies on other statutes and on
regulations, we have considered the elements of Section 554(a) itself, the
elements of the additional statutes identified in the indictment that are
necessary to determine the specific Section 554(a) offense in the case, and the
regulations cited in the indictment. That is appropriate. Divisibility analysis
requires the optional means of committing a crime that can be narrowed by an
indictment or other Shepard document to appear in the statutes on which the
conviction is based. This rather unusually-defined but still statutorily-defined
crime under Section 554(a) requires consideration of multiple statutes and
federal regulations. Each of the “phrases” (to use the Descamps term) that
informs us whether the charged crime fits the generic crime comes from those
statutes or regulations, not from the facts of the offense. Franco-Casasola was
convicted of these elements. He did not simply commit them.
      In summary, under the Descamps analytical framework, Section 554(a)
is a divisible statute defined in various alternatives by the finite list of United
States statutes and regulations that a defendant’s conduct could violate. By
examining the charging documents, we can determine which law the defendant
violated. That analysis shows his conviction was for “illicit trafficking in
firearms,” which is an aggravated felony.
      We note that even though we are applying Descamps, the BIA had earlier
relied on a different approach for determining whether a statute is divisible.
See Lanferman, 25 I. & N. Dec. at 727. The BIA argued in its pre-Descamps
briefing that its approach can be applied in its proceedings despite contrary
Fifth Circuit authority. Nonetheless, while this case has been pending, the
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BIA has abandoned Lanferman and acknowledged in a precedential opinion
that the decision is inconsistent with Descamps. Matter of Chairez-Castrejon,
26 I. & N. Dec. 349, 353 (BIA 2014). The BIA stated that “going forward we
are also bound to apply divisibility consistently with the individual circuit’s
interpretation of divisibility under Descamps.” Id. at 354.
      Accordingly, Descamps controls on the application of the modified
categorical approach to determining whether Franco-Casasola had been
convicted of an aggravated felony. Under Descamps, Section 554(a) is divisible
and the BIA did not err in application of the modified categorical approach.
      Franco-Casasola’s petition for review is DENIED.




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GRAVES, Circuit Judge, dissenting:
      Donald Efren Franco-Casasola asserts in his petition for rehearing that
the panel previously erred in concluding that his statute of conviction was
divisible under Descamps v. United States, 133 S.Ct. 2276 (2013). I agree and
would grant Franco-Casasola’s petition.
      In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607
(1990), the Supreme Court adopted a formal categorical approach setting out
that courts may look only to the statutory definitions, i.e., elements, of a
defendant’s prior offense and not “to particular facts underlying those
convictions.” Id. at 600. The Court also recognized “a narrow range of cases”
where a sentencing court could “go beyond the mere fact of conviction.” Id. at
602. This narrow range of cases represents the modified categorical approach,
which is permitted when a jury was actually required to find all of the elements
of a generic offense. “For example, in a State whose burglary statutes include
entry of an automobile as well as a building, if the indictment or information
and jury instructions show that the defendant was charged only with a
burglary of a building, and the jury necessarily had to find an entry of a
building to convict, then the Government should be allowed to use the
conviction for enhancement.” Id.
      The Supreme Court recently readdressed this in Descamps, which, as the
majority states, is the controlling precedent on the categorical approach and
the question of divisibility.
      Franco-Casasola’s statute of conviction says:
            Whoever fraudulently or knowingly exports or sends from
      the United States, or attempts to export or send from the United
      States, any merchandise, article, or object contrary to any law or
      regulation of the United States, or receives, conceals, buys, sells,
      or in any manner facilitates the transportation, concealment, or
      sale of such merchandise, article or object, prior to exportation,
      knowing the same to be intended for exportation contrary to any
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                                     No. 12-60977
      law or regulation of the United States, shall be fined under this
      title, imprisoned not more than 10 years, or both.


18 U.S.C. § 554(a).
      The majority says that the language “contrary to any law or regulation
of the United States” provides the “explicitly finite list” required by Descamps
to determine that the statute is divisible. However, the language quoted by
the majority is actually a quote from the Ninth Circuit, which was reversed.
Specifically, the Supreme Court said:
            The Ninth Circuit defended its (excessively) modified
      approach by denying any real distinction between divisible and
      indivisible statutes extending further than the generic offense.
      “The only conceptual difference,” the court reasoned, “is that [a
      divisible statute] creates an explicitly finite list of possible means
      of commission, while [an indivisible one] creates an implied list of
      every means of commission that otherwise fits the definition of a
      given crime.” Aguila–Montes, 655 F.3d, at 927. For example, an
      indivisible statute “requir[ing] use of a ‘weapon’ is not
      meaningfully different”—or so says the Ninth Circuit—“from a
      statute that simply lists every kind of weapon in existence ... (‘gun,
      axe, sword, baton, slingshot, knife, machete, bat,’ and so on).” Ibid.
      In a similar way, every indivisible statute can be imaginatively
      reconstructed as a divisible one. And if that is true, the Ninth
      Circuit asks, why limit the modified categorical approach only to
      explicitly divisible statutes?


      Descamps, 133 S.Ct. at 2289-90 (emphasis original). The Supreme Court
later said that to accept that reasoning “would altogether collapse the
distinction between a categorical and a fact-specific approach.” Id. at 2290.
      In my view, not only does the language “contrary to any law or regulation
of the United States” not provide an “explicitly finite list,” but the use of that
language in an attempt to distinguish this case from Descamps is in error.
      Section 554(a) prohibits exporting, buying, selling and other activities
facilitating the transportation of “merchandise, article[s], or object[s].” 18
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                                        No. 12-60977
U.S.C. § 554(a). Section 554(a) does not include a list of various merchandise,
articles or objects. Under Descamps, the offense in section 554(a) is defined in
terms that are overbroad. Because the statute requires only the export of an
indeterminate article or object, the statute falls into the category of indivisible
statutes that the Supreme Court warns against reconceiving as impliedly
divisible ones. See Descamps, 133 S.Ct. 2290.
      Section 554(a) does not contain “firearms” as an alternative element of
the offense and no part of the statute deals with gun trafficking. “Because of
the mismatch in elements [with the aggravated felony of illicit trafficking in
firearms], a person convicted under [section 554(a)] is never convicted of the
[aggravated felony].” Id. at 2292. In other words, “[Franco-Casasola] may (or
may not) have [trafficked firearms]. But [section 554(a)] – the crime of which
he was convicted – does not require the factfinder (whether jury or judge) to
make that determination.” Id. at 2293. A finding that Franco-Casasola was
convicted of illicit trafficking in firearms requires going beyond the statutory
text of section 554(a) to the record for evidence of Franco-Casasola’s conviction,
a circumstance-specific review precluded by Supreme Court precedent on the
categorical approach. Id. at 2286.
      Under Descamps, section 554(a) is not divisible and the BIA erred in
applying the modified categorical approach to look behind the statute of
conviction for evidence that Franco-Casasola committed an aggravated felony. 1
Moreover, even if section 554(a) was divisible, the modified categorical
approach would merely permit the court to “look beyond the elements and the
fact of conviction only for the limited purpose of ascertaining which of the



      1   Though unpublished, this is also consistent with this court’s recent decision in
United States v. Nunez-Segura, 566 Fed. App’x 389 (5th Cir. 2014) (prior drug conviction
where defendant admitted possessing methamphetamine with intent to sell was not drug
trafficking for purposes of imposition of sentence enhancement).
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                                      No. 12-60977
disjunctive elements the charged conduct implicated.”          United States v.
Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012). In this case, that would
mean    determining     whether    Franco-Casasola    smuggled     “merchandise,
article[s], or object[s]” - none of which correspond to the generic crime of
trafficking in firearms. Descamps, 133 S.Ct. at 2286. It would not allow the
court to look to facts underlying the conviction, including those contained in
the indictment, to determine whether Franco-Casasola’s conduct conforms to
the generic offense, as that is what the Supreme Court has “expressly and
repeatedly forbidden.” Id. at 2291.
       The majority purports to conclude that section 554(a) is divisible under
Descamps by its inclusion of “any law or regulation,” but then goes beyond the
statutory text to the record for evidence of Franco-Casasola’s conviction and to
locate a statute with an “explicitly finite list” which actually includes the term
“firearms” so as to justify the pre-determination regarding divisibility.        I
disagree with any such circular analysis. Franco-Casasola was convicted solely
under section 554(a) and there is no mention in Franco-Casasola’s judgment of
conviction of any other statutes discussed now by the majority.           Franco-
Casasola was not convicted of any violation under either the Arms Export
Control Act or the International Trafficking in Arms Regulations.
       Notwithstanding the error under Descamps in going beyond the text of
554(a), the other statutes and regulations cited by the majority do not support
its conclusions. While the indictment does say that Franco-Casasola failed to
obtain “the required license and authorization” under the Arms Export Control
Act, 22 U.S.C. § 2778(b)(2) and (c), and the International Trafficking in Arms
Regulations, 22 C.F.R. § 121.3, 123.1 and 127.1, none of those sections mention
“firearms.” As the majority concedes, those sections merely refer to “defense
articles,” “defense services,” and “aircraft.”


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                                    No. 12-60977
      Undeterred, the majority then culls the term “firearms” from a
regulation that is neither mentioned in the indictment, nor in the judgment of
conviction. However, 22 C.F.R. § 121.1 plainly says that “the following articles,
services, and related technical data are designated as defense articles and
defense services pursuant to sections 38 and 47(7) of the Arms Export Control
Act” and in no way reverts back to section 554(a), the only section under which
Franco-Casasola was indicted or convicted.
      While the majority ultimately concludes that there are “phrases” in one
or more of the multiple statutes and regulations it considered that “informs us
whether the charged crime fits the generic crime,” it fails to specify any
“phrases” establishing the elements of illicit trafficking in firearms in the
actual statute of conviction. Thus, the statements that Franco-Casasola was
“convicted of these elements” and “convicted for illicit trafficking in firearms”
are clearly erroneous.    Again, “[Franco-Casasola] may (or may not) have
[trafficked firearms].   But [section 554(a)] – the crime of which he was
convicted – does not require the factfinder (whether jury or judge) to make that
determination.” Descamps at 2293.
      As the majority concedes, the indictment did not charge Franco-Casasola
with violations of the Arms Export Control Act or the International Trafficking
in Arms Regulations, nor was he charged with anything to support any
statement that he transported “defense articles.” The indictment, which is
quoted by the majority, does not even include the phrase “defense articles.”
The relevant count of the indictment charged him with only a violation of
section 554(a). Notably, other defendants were charged in the same indictment
with violations of 22 U.S.C. 2778 - the Arms Export Control Act, which provides
its own penalty. Also, more importantly, Franco-Casasola was charged in
separate counts involving firearms under 18 U.S.C. §§ 922, 924. However,
Franco-Casasola was not convicted on those counts. Thus, any effort to revive
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                                     No. 12-60977
those counts is clearly improper. In reviving those counts, the majority is
improperly rewriting Franco-Casasola’s plea deal in contradiction of Supreme
Court precedent. See Taylor, 495 U.S. at 601–602; and Descamps, 133 S.Ct. at
2289.
        The majority cites Descamps at pages 2289 and 2290 for the proposition
that a prosecutor charging a violation of section 554 “must select the relevant
elements from the possible alternative statutes and regulations.” However,
Descamps says nothing about searching other statutes and regulations in an
attempt to locate possible elements that will correspond to a separate generic
crime. What the Court actually said on page 2290 was: “A prosecutor charging
a violation of a divisible statute must generally select the relevant element from
its list of alternatives.” Id. at 2290 (emphasis added). Further, page 2289 of
Descamps consists of the court’s criticism of the Ninth Circuit’s actions nearly
identical to the majority’s actions here.
        Moreover, the conclusion that a violation of section 554(a) depends on
proving violations of other laws, specifically the Arms Export Control Act or
the International Trafficking in Arms Regulations, is without citation to any
authority whatsoever. Further, I note that although the majority discusses
jury instructions at length, Franco-Casasola pleaded guilty. A guilty plea
analysis and a jury instruction analysis are not identical. Again, it is improper
for the majority to now rewrite Franco-Casasola’s plea bargain based on facts
it has obtained by looking beyond the statute of conviction. See Taylor, 495
U.S. at 601–602; and Descamps, 133 S.Ct. at 2289.
        Notwithstanding the irrelevancy of jury instructions, the authority cited
by the majority contradicts its conclusion. The majority cites United States v.
Bernardino, 444 F.App’x 73 (5th Cir. 2011), as support for its conclusion that
jury instructions and indictments must charge not only general elements of
section 554 (a) but also elements from other statutes and regulations.
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                                           No. 12-60977
Bernardino, which is unpublished, directly contradicts the majority’s
conclusion. In that case, Daniel Bernardino appealed his conviction under
section 554(a).      Just as here, Bernardino’s indictment charged him with
exporting firearms and ammunition under section 554(a) without first
obtaining a license required by 22 U.S.C. § 2778(b)(2). Bernardino requested
and was denied a jury instruction regarding the elements of section 2778(b)(2).
On appeal, this court affirmed the district court’s finding that Bernardino was
not entitled to a jury instruction regarding the elements of section 2778(b)(2)
and said “[a]ll of Bernardino’s arguments are premised on the mistaken view
that he was charged and convicted under a different provision, 22 U.S.C. §
2778(c), which imposes penalties for ‘willfully’ violating 22 U.S.C. § 2778(b)’s
licensing requirement.” Id. at 74. 2 Such is the case here, as Franco-Casasola
was neither charged nor convicted under 2778(b)(2) or (c). Thus, contrary to
the majority’s conclusion, even if Franco-Casasola had opted for a jury trial, he
would not have been entitled to an instruction regarding the elements of 2778.
       The majority then engages in a second improper analysis and apparently
determines that there was a factual basis for Franco-Casasola’s guilty plea –
an issue that is not before us. In doing so, it says “[a]cceptance of a guilty plea
implies that the district court determined that the accused’s ‘admitted conduct


       2 The majority opinion in Bernardino contains no statement that “[a]ll other elements
of the Section 2778(b)(2) offense were explained to jurors, such as requiring a finding that
the exported items were on the United States Munitions List and that the defendant had
failed to obtain a license as required by Section 2778,” and the majority here provides no
citation for such a statement. However, even if some of the Bernardino instructions touched
on elements of section 2778(b)(2), it does not change the conclusion of this court that no such
instructions are necessary in a conviction under section 554. By suggesting otherwise, the
majority now is, in effect, overruling Bernardino and concluding that defendants are entitled
to jury instructions on all elements of any statutes mentioned in the indictment. Likewise,
such an outcome would, in effect, establish the presumption that a guilty plea under one
statute also establishes the elements of any statutes mentioned in the indictment. Such an
outcome allows a court, such as the majority here, to later consider those other statutes as
having been part of the conviction, thus both rewriting and negating any benefit of the plea
bargain.
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                                    No. 12-60977
satisfied every element’ of the indicted offense.” However, the case cited by the
majority actually says that the “admitted conduct satisfied every element of 18
U.S.C. § 2422(b).” United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Here, that would mean determining that Franco-Casasola’s admitted
conduct satisfied the elements of section 554(a).      While the district court
considers the conduct and the elements of the offense charged in the
indictment, the conduct must only satisfy the elements of the statute of
conviction. See Bernardino, 444 F.App’x at 74.
      The majority concedes that it has gone “one step further” than the
Supreme Court. That “one step” is a giant leap. The leap from the statutory
text of section 554(a) (smuggling goods from the United States) under the guise
of “any law” to four other sections (mentioned in the indictment but not
charged) regarding licensing to export “defense articles,” and then to a
previously unmentioned section listing “firearms” as possible “defense articles”
under two specific sections not including section 554, is a feat squarely
forbidden by Descamps. The majority correctly notes the Descamps admonition
that a court may not look to facts underlying the conviction to determine if
Franco-Casasola’s conduct conforms to a generic offense.          Nevertheless,
“[i]nstead of reviewing documents like an indictment or plea colloquy only to
determine which statutory phrase was the basis for the conviction, [the
majority] look[ed] to those materials to discover what the defendant actually
did.” Descamps, 133 S.Ct. at 2288 (internal marks omitted).
      The majority agrees that we determine whether a prior offense qualifies
as an aggravated felony by using the categorical approach and determining
whether the statutorily-defined offense fits within the definition of the
aggravated felony. The majority further agrees that the statutorily-defined
offense of smuggling goods from the United States does not fit within the
aggravated felony of trafficking in firearms. Because none of the elements
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                                     No. 12-60977
necessary to establish a violation of smuggling goods corresponds to the generic
offense of illicit trafficking in firearms, a modified categorical approach does
not apply. Thus, it is improper to consider the indictment or other documents
– even if consideration of the indictment would provide evidence of a necessary
element of the generic offense. Accordingly, I would grant Franco-Casasola’s
petition for review and reverse the decision of the BIA.           Therefore, I
respectfully dissent.




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