Johnson v. Barr
| Decision Date | 31 July 2020 |
| Docket Number | No. 19-9550,19-9550 |
| Citation | 967 F.3d 1103 |
| Parties | Everette Livingston JOHNSON, a/k/a Everette Burns, a/k/a Everette Allen, Petitioner, v. William P. BARR, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Joshua Mitson (Hans Meyer, with him on the briefs), Meyer Law Office P.C., Denver, Colorado, for Petitioner Everett Johnson.
Kohsei Ugumori, Senior Litigation Counsel (Joseph H. Hunt, Assistant Attorney General, and Emily Anne Radford, Assistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
Before BACHARACH and CARSON, Circuit Judges.1
Petitioner Everett Johnson, a citizen of the Bahamas, became a United States permanent resident in 1977. But in 2016, he pleaded guilty to possessing a schedule II controlled substance in violation of Colorado law. Soon after, the Department of Homeland Security (DHS) charged Johnson as removable from the United States based on the state drug conviction. The Board of Immigration Appeals (BIA) then ordered Johnson's removal from the United States back to the Bahamas. Johnson now petitions for review of that decision.
Our jurisdiction arises under 8 U.S.C. § 1252. We address whether Johnson's state drug conviction under the 2016 version of Colorado Revised Statute (C.R.S.) § 18-18-403.5(1), (2)(a) subjects him to deportation from the United States. Because C.R.S. § 18-18-403.5(1), (2)(a) is overbroad and indivisible as to the identity of a particular controlled substance, Johnson's conviction cannot subject him to removal from the United States. We therefore grant Johnson's petition for review, vacate the BIA's order, and remand to the BIA for further proceedings consistent with this opinion.
After pleading guilty to possessing hydrocodone, a schedule II controlled substance under Colorado law, DHS initiated removal proceedings against Johnson. DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(B)(i), a provision in the Immigration and Nationality Act that authorizes removing an alien for a state law conviction "relat[ed] to a controlled substance (as defined in section 802 of Title 21)."
Johnson moved to terminate the removal proceedings before an immigration judge. He argued that under the categorical/modified categorical approach as established by the United States Supreme Court, his state drug conviction did not qualify as a removable offense under 8 U.S.C. § 1227(a)(2)(B)(i). Johnson claimed that C.R.S. § 18-18-403.5(1), (2)(a) was broader than its federal counterpart, the Controlled Substances Act, 21 U.S.C. § 801, et seq. (the CSA). More specifically, Johnson asserted that the Colorado statute was overbroad because it criminalized possessing a substance called morpholine—a substance the CSA does not criminalize.
The Immigration Judge (IJ) denied Johnson's motion to terminate. The IJ concluded that even though the Colorado statute criminalized possessing more substances than federal law, it was divisible rather than indivisible, permitting application of the modified categorical approach. The modified categorical approach allows a court to examine a limited category of court records, including the charging document, jury instructions, and plea agreement, to determine which specific crime the defendant committed. Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). And after reviewing Johnson's conviction record, the IJ determined that DHS could remove Johnson because he pleaded guilty to possessing a substance prohibited by both the Colorado statute and the CSA.
Johnson appealed to the BIA. The BIA agreed with the IJ that the Colorado statute was overbroad and thus did not categorically constitute a removable offense under federal law. But the BIA likewise determined that the statute was divisible and applied the modified categorical approach. And after reviewing Johnson's actual conviction record, the BIA dismissed Johnson's appeal and ordered him removed to the Bahamas.
When reviewing a BIA ruling, we review legal issues de novo, including whether a statute of conviction is divisible under the modified categorical approach. Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018).
The Immigration and Nationality Act authorizes the removal of an alien convicted of violating a state law "relating to a controlled substance (as defined in section 802 of Title 21)." 8 U.S.C. § 1227(a)(2)(B)(i). No one disputes that Johnson violated Colorado state law. Instead, the parties dispute whether Johnson's state law violation subjects him to deportation as a violation "relating to a controlled substance." We must therefore determine whether Johnson's Colorado drug conviction qualifies as a violation of state law "relating to a controlled substance," as defined in the CSA.
We begin by applying the categorical approach to "assess whether [Johnson's] state drug conviction triggers removal under the immigration statute." Mellouli v. Lynch, 575 U.S. 798, 135 S. Ct. 1980, 1986, 1987, 192 L.Ed.2d 60 (2015). Under the categorical approach, a state drug conviction cannot qualify as a basis for removal if the state statute's elements are broader than the federal analogue. Descamps v. United States, 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; Mathis, 136 S. Ct. at 2251. Here, we look specifically at whether the Colorado drug statute criminalizes more substances than "defined in section 802 of Title 21," i.e., the federal CSA. If it does, then the Colorado statute is "overbroad," and no "categorical match" exists between the Colorado statute and its federal analogue. Descamps, 570 U.S. at 276–77, 133 S.Ct. 2276.
We agree with the parties that C.R.S. § 18-18-403.5 is broader than the CSA because the Colorado statute criminalizes possessing morpholine, while the CSA does not. And because the Colorado statute criminalizes a wider breadth of activity than the CSA, no "categorical match" exists between the Colorado statute and its federal analogue. Id.
Our inquiry, however, does not end just because the statute is overbroad. Instead, we must next consider whether the overbroad statute is divisible—that is, whether it "comprises multiple, alternative versions of the crime." Id. at 262, 133 S.Ct. 2276. If the alternatives are "elements," then the statute is divisible, and we apply the modified categorical approach. Id. The modified categorical approach acts "as a tool" to determine which version of the crime underlies the defendant's conviction. Id. at 263, 133 S.Ct. 2276.
Elements "are the constituent parts of a crime's legal definition" that "the prosecution must prove" and "what the jury must find beyond a reasonable doubt to convict the defendant." Mathis, 136 S. Ct. at 2248 (internal quotation marks and citation omitted). "Means," on the other hand, merely describe "[h]ow a given defendant actually perpetrated the crime." Id. at 2251. Where a statute lists "diverse means of satisfying a single element," or "spells out various factual ways of committing some component of the offense," then such "means" are legally extraneous circumstances that do not constitute elements. Id. at 2249. If the statute lists alternative means rather than elements, then we do not apply the modified categorical approach, and the state conviction cannot qualify as a predicate to removal from the United States. See id. at 2251.
Having concluded that C.R.S. § 18-18-403.5(1), (2)(a) criminalizes more substances than the federal CSA and is thus "overbroad," we now address whether the Colorado statute is divisible.
This case turns on whether the Colorado statute is divisible as to the identity of the particular controlled substance (here, hydrocodone). In other words, we must analyze whether the specific controlled substance is an "element" under C.R.S. § 18-18-403.5(1), (2)(a) or merely a "means" of committing the offense. If the specific controlled substance is merely a means of committing the offense, then the statute cannot serve as a basis for removal. Mathis, 136 S. Ct. at 2255–57 ; United States v. McKibbon, 878 F.3d 967, 974–76 (10th Cir. 2017). If, however, the specific identity of the controlled substance is an element, then neither party disputes that Johnson's actual crime of conviction matches the CSA.2
The Supreme Court recognizes several authoritative state law sources that may determine whether a statute is divisible. Mathis, 136 S. Ct. at 2256. These include the statute itself, the punishments for different offenses under the statute, and state case law. Id. at 2255–57. Only if these sources fail "to provide clear answers," may we then look to Johnson's actual record of conviction. Id. at 2256.
We begin with the statutory text. The relevant statute of conviction states that "it is unlawful for a person knowingly to possess a controlled substance." Colo. Rev. Stat. § 18-18-403.5(1). Any person possessing:
any material, compound, mixture, or preparation that contains any quantity of flunitrazepam; ketamine ; gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; cathinones; or more than four grams of a controlled substance listed in schedule I or II of part 2 of this article 18 commits a level 4 drug felony.
Id. § 18-18-403.5(2)(a) (emphasis added). According to the government, this statutory language makes possessing the specific substance hydrocodone an element of Johnson's conviction. Johnson, on the other hand, contends that hydrocodone was not an element, but a means of satisfying the possession of a controlled substance element.
The statutory language suggests that the schedule of the controlled substance is an element, while the specific identity of the "substance listed in schedule I or II" is a "means" to satisfy that element. Id. Further, the statute specifically names three other substances not found in schedule I or II: flunitrazepam, ketamine, and gamma...
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