                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 19a0104n.06

                                             No. 18-3537


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                       FILED
                                                                                     Mar 05, 2019
    JOSE SANDOVAL HERNANDEZ,                                )                    DEBORAH S. HUNT, Clerk
                                                            )
          Petitioner,                                       )
                                                            )
                                                                    ON PETITION FOR REVIEW
    v.                                                      )
                                                                    FROM THE UNITED STATES
                                                            )
                                                                    BOARD OF IMMIGRATION
    WILLIAM P. BARR, Attorney General,                      )
                                                                    APPEALS
                                                            )
          Respondent.                                       )
                                                                                OPINION
                                                            )
                                                            )


         BEFORE:        CLAY and STRANCH, Circuit Judges; PEARSON, District Judge.*

         JANE B. STRANCH, Circuit Judge. Jose Sandoval Hernandez petitions for review of a

Board of Immigration Appeals (BIA) ruling that he is ineligible for cancellation of removal

because he was convicted of an aggravated felony. Because Michigan’s felony-firearm statute is

divisible and, applying the modified categorical approach, Sandoval Hernandez was convicted of

an aggravated felony, we DENY the petition for review.

                                        I. BACKGROUND

         Sandoval Hernandez is a lawful permanent resident who was admitted to the United States

when he was seven years old. He is now 27 years old. His father and some of his sisters are U.S.

citizens; his other siblings are lawful permanent residents.



*
 The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting
by designation.
No. 18-3537, Sandoval Hernandez v. Barr


       Sandoval Hernandez was indicted on three felony counts under Michigan law in 2015:

(1) assault with a dangerous weapon (felonious assault), (2) carrying a concealed firearm, and

(3) “felony firearm.” The indictment for the felony-firearm count states that he “did carry or have

in his/her possession a firearm, to wit: a pistol, at the time he/she committed or attempted to

commit a felony, to wit: Assault with a Dangerous Weapon; contrary to MCL 750.227b.”

Sandoval Hernandez pleaded guilty to the charges of assault with a dangerous weapon and felony

firearm. He was sentenced to eight days’ imprisonment for the felonious assault, consecutive to

two years’ imprisoment for felony firearm. The concealed-weapon count was dismissed. His only

prior conviction was for driving without a valid license.

       Before Sandoval Hernandez was released from state prison, the Department of Homeland

Security served him with a Notice to Appear. The amended Notice to Appear alleged that he was

removable from the United States, despite being a lawful permanent resident, because he had been

convicted of an aggravated felony—specifically, “a crime of violence . . . for which the term of

imprisonment ordered [was] at least one year.” The Notice to Appear also alleged that he could

be deported because he had been convicted of a firearms offense.

       Sandoval Hernandez admitted that he had been convicted of a firearms offense and denied

that he had been convicted of an aggravated felony. He conceded that he was removable based on

the firearms offense but sought cancellation of removal. Convictions for either a firearms offense

or an aggravated felony would make him removable. 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(C).

But, crucially, only a conviction for an aggravated felony would make him ineligible for

discretionary cancellation of removal. See 8 U.S.C. § 1229b(a). And a conviction for a “crime of

violence” is only an aggravated felony if it resulted in a “term of imprisonment [of] at least one

year.” 8 U.S.C. § 1101(a)(43)(F). The immigration judge determined that Sandoval Hernandez




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had been convicted of “an aggravated felony crime of violence” and thus he was ineligible for

cancellation of removal.

       The BIA affirmed in a three-page unpublished decision. First, the BIA noted that Sandoval

Hernandez’s conviction for felonious assault, although for a crime of violence, was not an

aggravated felony because it “did not result in the imposition of a term of imprisonment of a year

or greater.” Next, the BIA found that the commission or attempted commission of “the underlying

felony is an element of the felony firearms offense.” The BIA reasoned as follows. Because the

underlying felony for Sandoval Hernandez’s felony-firearm offense—felonious assault—was

categorically a crime of violence, so too was his felony-firearm conviction. And because he

sentenced to two years on the felony-firearm count, Sandoval Hernandez was convicted of an

aggravated felony that made him “statutorily ineligible to pursue cancellation of removal.”

       Sandoval Hernandez filed a timely petition for review of the BIA’s order.

                                       II. ANALYSIS

       When the BIA “reviews the IJ’s decision and issues a separate opinion, . . . this [c]ourt

reviews the Board’s decision as the final agency determination.” Kamar v. Sessions, 875 F.3d

811, 817 (6th Cir. 2017). We do not defer “to the BIA’s interpretation of a state criminal statute;

that issue is reviewed de novo.” Serrato-Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009).

       The issue presented by this case is a narrow one. Sandoval Hernandez admits that assault

with a deadly weapon is a crime of violence—as he must under our binding precedent. See United

States v. Harris, 853 F.3d 318, 321–22 (6th Cir. 2017). The Government, in turn, concedes that a

defendant can be convicted of felony firearm without committing a crime of violence, making the

statute overbroad. Thus, the sole issue in contention is whether the felony-firearm statute is

divisible. If it is, and application of the modified categorical approach reveals that Sandoval

Hernandez was convicted of an offense that has an element the commission or attempted


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commision of felonious assault, we must deny the petition for review. If this statute is indivisible,

on the other hand, we must grant the petition for review because the statute is overbroad.1

        Sandoval Hernandez argues that the BIA erred in finding that the felony-firearm statute

was divisible because the felony-firearm statute does not “list elements of the crime in the

alternative.” He instead contends that the felony-firearm statute is both indivisible and overbroad.

In other words, it is not an aggravated felony because a defendant “can be convicted under the

felony firearm statute without committing a crime of violence.” The Government responds that

this statute “contains a divisible ‘felony’ element”; because “a jury must find the underlying

felony’s elements beyond a reasonable doubt . . . the underlying felony’s elements are also

elements of a felony-firearm conviction.” Thus, it argues, Sandoval Hernandez was convicted of

an aggravated felony because the underlying felony, assault with a deadly weapon, is categorically

a crime of violence.

        As relevant here, a person commits the offense of felony firearm when he or she “carries

or has in his or her possession a firearm when he or she commits or attempts to commit a felony,”

except for certain offenses relating to gun possession, carrying, sale, or alteration. Mich Comp.


1
  Because Sandoval Hernandez did not raise the issue, we do not reach the question of whether he has a
Padilla claim for defense counsel’s failure to negotiate a plea to count two of the indictment (concealed
carry of a firearm) instead of count three (felony firearm). But, under our precedent, he can demonstrate
Strickland prejudice “by showing that he would have negotiated a plea deal that did not carry adverse
immigration consequences.” Rodriguez-Penton v. United States, 905 F.3d 481, 488 (6th Cir. 2018). And
given that the Michigan concealed-firearms statute does not include an antique weapons exception, this
offense is likely not an aggravated felony. See Mich. Comp. Laws Ann. §§ 750.222(e)–(f), 750.227(2);
United States v. Aguilera-Rios, 769 F.3d 626, 634–37 (9th Cir. 2014) (holding that state statutes “that allow
conviction for offenses using antique firearms” are not categorically firearms aggravated felonies). We
further note that the concealed carry of a firearm count could be punished by two years’ imprisonment, the
same term of imprisonment imposed for the felony-firearm count. See Mich. Comp. Laws Ann. § 750.27(3)
(providing for a punishment of up to five years). Thus, because Sandoval Hernandez could have served the
same prison sentence had he instead pleaded guilty to the concealed-carry count, there is no reason readily
apparent from the record why the prosecution would have preferred that he plead guilty to the felony-
firearm count rather than the concealed-carry count. If defense counsel did not consider the immigration
consequences of a conviction during plea bargaining or try to negotiate a plea that would not result in his
client’s deportation, Sandoval Hernandez may have a colorable Padilla claim.


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Laws Ann. § 750.227b(1). There are three elements to this crime: (1) carrying or possessing a

firearm (2) at the time of (3) the commission or attempted commission of another felony. The

question, then, is whether the commission of a felony element is divisible by the underlying crime

or whether, instead, commission of the underlying crime is merely a means to satisfy this element.

                                    A. Elements versus Means

       The Supreme Court clarified the distinction between “elements” and “means” in Mathis v.

United States, 136 S. Ct. 2243 (2016). An element of a crime is something that must be proven

for conviction. Id. at 2249. Thus, if commission or attempted commission of a specific underlying

felony is an element of felony firearm, then the jury must find or the defendant must admit that he

committed or attempted to commit that particular felony. See id. On the other hand, if the

underlying felony is merely a means to satisfy an element—i.e., a “factual way[] of committing

some component of the offense”—then “a jury need not find (or a defendant admit)” the

commission of any particular underlying crime. Id. To take an example from Mathis, “suppose a

statute requires use of a ‘deadly weapon’ as an element of a crime and further provides that the use

of a ‘knife, gun, bat, or similar weapons would all qualify.’” Id. These listed weapons are means,

not elements, because “[a] jury could convict even if some jurors concluded that a defendant used

a knife while other concluded that he used a gun, so long as all agreed that the defendant used a

deadly weapon.” Id. (alterations, citations, and internal quotation marks omitted).

       Determining whether something is an element or a means can be tricky. In some cases,

decisional law may provide a clear answer. For example, in Mathis, “the State Supreme Court

held” that the “listed premises in Iowa’s burglary law . . . are alternative methods of committing

one offense, so that a jury need not agree whether the burgled location was a building, other

structure, or vehicle.” Id. at 2256 (alterations, citations, and internal quotation marks omitted).




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Thus, the premises listed in the statute were means, not elements. “Likewise, the statute on its

face may resolve the issue. If statutory alternatives carry different punishment, then under

Apprendi they must be elements.” Id. But these sources will not always answer the question.

        “[I]f state law fails to provide clear answers,” federal courts can look at “the record of a

prior conviction itself. . . . [S]uch a peek at the record documents is for the sole and limited purpose

of determining whether the listed items are elements of the offense. Id. at 2256–57 (alterations,

citations, and internal quotation marks omitted). The relevance of these documents is that they

can “reveal what the prosecutor has to (and does not have to) demonstrate to prevail.” Id. at 2257

(citing Descamps v. United States, 570 U.S. 254, 272 (2013)). For instance, “an indictment and

jury instructions could indicate, by referencing one alternative term to the exclusion of all others,

that the statute contains a list of elements, each of which goes toward a separate crime.” Id.

                                          B. State Caselaw

        The Government argues that, in this case, state law makes clear that the commission of a

specific underlying felony is an element of felony firearm. The Government principally relies on

People v. Lewis, a case in which the defendants sought to overturn their felony-firearm convictions

by “asserting that since the jury acquitted them of the underlying felonies . . . , they necessarily

found that an element of the offense of felony-firearm had not been committed.” 330 N.W.2d 16,

17 (Mich. 1982). The Michigan Supreme Court rejected this argument, stating that a “conviction

of felony-firearm may be read as an implicit finding that the defendant did commit the felony,”

and that the inconsistent verdict could be explained by jury leniency or compromise. Id. at 19–20.

The court held that conviction of an underlying felony was not required for a felony-firearm

conviction, only the commission or attempted commission of an underlying felony. Id. at 21.




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No. 18-3537, Sandoval Hernandez v. Barr


       Lewis, however, cannot bear the weight the Government places on it. It stands for the

proposition—evident from the statute—that an individual must commit or attempt to commit

another felony to be convicted of felony firearm. But that does not mean that the specific

underlying felony is an element of the crime. Lewis does not foreclose the possibility that a jury

could convict an individual of felony firearm without agreeing on the underlying felony. If a jury

could find someone guilty of felony firearm even though some jurors think that the defendant

committed robbery and other jurors think that he only sold drugs, then the commission of the

underlying felony would be a means, not an element of the crime. See Mathis, 136 S. Ct. at 2249.

       The Government also relies on People v. Burgess, 353 N.W.2d 444 (Mich. 1984), in which

the Michigan Supreme Court reversed a felony-firearm conviction for failure to give a jury charge

on intoxication. The court held that this was reversible error because, although intoxication is not

a defense to felony firearm, “it is a defense to the underlying felony of assault with a dangerous

weapon.” Id. at 447. Burgess suggests that the specific underlying offense is an element of felony

firearm but does not definitively answer the question because felonious assault was the only

underlying felony that was charged in that case. Thus, if Burgess did not commit felonious assault

because he was too intoxicated to form a specific intent, he could not have committed felony

firearm either. But that does not answer the relevant question—whether the failure to give an

intoxication charge would require reversal of the felony-firearm conviction if there were other

underlying felonies, to which intoxication is not a defense, that the defendant may have committed.

       Most helpful to the Government is an argument it barely develops. The Michigan Supreme

Court has held that “where a defendant has committed separate felonies during a single transaction,

he may be convicted of more than one count of [felony firearm].” People v. Morton, 377 N.W.2d

798, 798, 801 (Mich. 1985). The court explained, “[w]e believe it clear that the Legislature




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intended . . . that every felony committed by a person possessing a firearm result in a felony-

firearm conviction.” Id. at 801; accord People v. Mitchell, 575 N.W.2d 283, 285 (Mich. 1998).

The logical implication is that the indictment must charge—and the prosecution must prove—the

underlying felony for each felony-firearm count to avoid multiplicity or raising double-jeopardy

concerns with multiple felony-firearm convictions. This logic entails the conclusion that the

commission of a particular felony is an element of the offense. See United States v. Martinez-

Lopez, 864 F.3d 1034, 1040 (9th Cir. 2017) (en banc) (holding that the “controlled substance”

element of a drug-trafficking law was divisible by the specific substance because “defendants are

routinely subjected to multiple convictions under a single statute for a single act as it relates to

multiple controlled substances” and “such convictions are recognized as separate crimes by the

California Supreme Court”).

                                 C. Review of Record Documents

       The categorical approach demands certainty. See Mathis, 136 S. Ct. at 2257 (noting

“Taylor’s demand for certainty”). To dispel any remaining doubt about whether the felony-firearm

statute is divisible, we take “a peek at the record documents . . . for the sole and limited purpose”

of determining the elements of conviction. Id. at 2256 (alterations, citation, and internal quotation

marks omitted). The indictment alleges that Sandoval Hernandez “did carry or have in his/her

possession a firearm . . . at the time he/she committed or attempted to commit a felony, to wit:

Assault with a Dangerous Weapon.” “[B]y referencing one alternative term to the exclusion of all

others,” the indictment “indicate[s]” that the underlying felony—assault with a deadly weapon—

is an element of the crime. Mathis, 136 S. Ct. at 2257.

       Although Sandoval Hernandez pleaded guilty rather than going to trial, Michigan’s Model

Criminal Jury Instructions also support this conclusion. The felony-firearm instruction requires




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that the prosecution prove that a defendant committed or attempted to commit a specific underlying

crime, not just that he or she committed or attempted to commit a generic felony. It provides:

           (1) The defendant is also charged with the separate crime of possessing a
           firearm at the time [he/she] committed [or attempted to commit] the crime
           of __________.

           (2) To prove this charge, the prosecutor must prove each of the following
           elements beyond a reasonable doubt:

           (3) First, that the defendant committed [or attempted to commit] the crime
           of __________, which has been defined for you. It is not necessary,
           however, that the defendant be convicted of that crime.

           (4) Second, that at the time the defendant committed [or attempted to
           commit] that crime [he/she] knowingly carried or possessed a firearm.

       Mich. Crim. JI 11.34. The blank spaces indicate that the prosecution is required to prove

that a defendant committed a specific underlying felony to obtain a felony-firearm conviction.

That makes commission of the underlying felony an element. See Mathis, 136 S. Ct. at 2257;

Martinez-Lopez, 864 F.3d at 1040–41 (holding that, under the analysis required by Mathis, the

controlled-substance element of a state drug-trafficking law was divisible by the specific substance

and thus the statute was divisible); Swaby v. Yates, 847 F.3d 62, 67–69 (1st Cir. 2017) (same).

       Because the felony-firearm statute is divisible, we employ the “modified categorical

approach” to determine the elements of conviction. United States v. Covington, 738 F.3d 759,

762–63 (6th Cir. 2014). But we “use the modified approach only to determine which alternative

element in a divisible statute formed the basis of the defendant’s conviction.” Descamps, 570 U.S.

at 278. We do not use it “to substitute . . . a facts-based inquiry for [the] elements-based one”

required by the categorical approach. Id. “[T]he modified approach serves—and serves solely—

as a tool to identify the elements of the crime of conviction.” Mathis, 136 S. Ct. at 2253.




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No. 18-3537, Sandoval Hernandez v. Barr


        Looking once again at the record documents, the indictment makes clear that Sandoval

Hernandez was convicted of possessing a firearm while committing assault with a deadly weapon.

And this court has held that felonious assault is categorically a crime of violence. See Harris, 853

F.3d at 321–22.2 Thus, applying the modified categorical approach, Sandoval Hernandez’s

conviction for felony firearm was a crime of violence. Because he was sentenced to more than a

year of imprisonment, this conviction is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(F).

                                         III. CONCLUSION

        For the foregoing reasons, Sandoval Hernandez’s felony-firearm conviction is a conviction

for an aggravated felony. He is therefore statutorily ineligible for cancellation of removal. Though

Sandoval Hernandez has been living in this country since he was seven years old, he will now be

deported and separated from his family, all of whom are lawful permanent residents or United

States citizens. Because this result is mandated by law, we DENY the petition for review.




2
  Although Harris dealt with the Sentencing Guidelines, the definition of crime of violence used in
immigration law, taken from 18 U.S.C. § 16, is broader than that of the Guidelines. Compare 18 U.S.C.
§ 16(a) (defining “crime of violence” as “an offense that has an element the use, attempted use, or threatened
use of physical force against the person or property of another”), with USSG § 4B1.2(a) (defining “crime
of violence” as any offense, punishable by more than a year of imprisonment, that “has an element the use,
attempted use, or threatened use of physical force against the person of another”). Thus, if an offense is a
crime of violence under the Guidelines, like felonious assault, it is a crime of violence for aggravated-felony
purposes (but not the other way around). See United States v. Camp, 903 F.3d 594, 600 (6th Cir. 2018).


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