Sandoval v. Sessions

• Decision Date: 27 January 2017
• Docket Number: No. 13-71784,13-71784
• Citation: 866 F.3d 986
• Parties: Leonel SANDOVAL, aka Lione Sandoval, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

866 F.3d 986

Leonel SANDOVAL, aka Lione Sandoval, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 13-71784

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 8, 2016 Portland, Oregon

Filed January 27, 2017

Amended August 8, 2017

Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.

Song E. Park (argued), Bryan S. Beier, and Patrick J. Glen, Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: M. Margaret McKeown, William A. Fletcher and Raymond C. Fisher, Circuit Judges.

FISHER, Circuit Judge:

OPINION

Sandoval was convicted of delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a).¹ Oregon law permits conviction for delivery under this statute based on mere solicitation. Because the Controlled Substances Act does not punish soliciting delivery of controlled substances, § 475.992(1)(a) cannot be a categorical match to an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Further, because § 475.992(1)(a) is indivisible, the modified categorical approach does not apply. Therefore, we grant Sandoval's petition and remand for further proceedings.

I

Leonel Sandoval moved to the United States from Mexico when he was nine years old. He adjusted to lawful permanent resident status in 1990. His wife of over 26 years and two children are United States citizens.

In 1998, Sandoval was convicted of delivery of a controlled substance under Oregon law. The indictment identified the controlled substance as heroin. He performed community service at a forest project and was placed on probation for two years. Since then, he has not been convicted of any other criminal activity.²

Twelve years later, the government instituted removal proceedings against him. It alleged two grounds for removal based on Sandoval's 1998 conviction: (1) that the conviction was an aggravated felony and (2) that the conviction was related to a controlled substance. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Under the second charge, Sandoval could seek cancellation of removal based on his long-standing residence and family ties in the United States. But the first charge made him ineligible for such relief. See id. § 1229b(a)(3). Accordingly, Sandoval argued the government had failed to offer clear and convincing evidence he was convicted of an aggravated felony because Oregon's statute is broader than a federal controlled substance offense given that it punishes solicitation in addition to actual and attempted delivery. The IJ and BIA rejected this argument, concluded he was ineligible for cancellation of removal and ordered him removed.

Sandoval timely petitioned for review. We have jurisdiction and review Sandoval's petition de novo. See 8 U.S.C. § 1252(a)(2)(D) ; Daas v. Holder , 620 F.3d 1050, 1053 (9th Cir. 2010) ; see also Coronado-Durazo v. INS , 123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an agency's interpretations of state law or provisions of the federal criminal code. See Hoang v. Holder , 641 F.3d 1157, 1161 (9th Cir. 2011).

II

To determine whether a state criminal conviction is an aggravated felony, we must follow the "categorical approach." See Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under the categorical approach, we "compare the elements of the statute forming the basis of the [petitioner's] conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Id. Only if the elements in the petitioner's statute of conviction "are the same as, or narrower than, those of the generic offense" is the petitioner's conviction a categorical match. Id.

Under the categorical approach, we first determine the definition of the generic offense—here, an aggravated felony. This requires us to navigate a "maze of statutory cross-references." Carachuri-Rosendo v. Holder , 560 U.S. 563, 567, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). We start with the definition of "aggravated felony" as used in 8 U.S.C. § 1101(a)(43).

The term "aggravated felony" includes any "drug trafficking crime."³ 8 U.S.C. § 1101(a)(43)(B). Only felonies qualify as "drug trafficking crime [s]." See Lopez v. Gonzales , 549 U.S. 47, 55, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) ; see also Carachuri-Rosendo , 560 U.S. at 581–82, 130 S.Ct. 2577. A "felony" means an offense punishable by more than one year under federal law. See 18 U.S.C. § 3559(a)(5) ; see also Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 1683, 185 L.Ed.2d 727 (2013) ; Lopez , 549 U.S. at 60, 127 S.Ct. 625 ("In sum, we hold that a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.").⁴

Drug trafficking crimes include felonies punishable under the Controlled Substances Act. See 8 U.S.C. § 1101(a)(43)(B) ; 18 U.S.C. § 924(c)(2). Because heroin is a federally controlled substance, see 8 U.S.C. § 1101(a)(43)(B) ; 21 U.S.C. §§ 802(6), 812(c) (sched. I)(b)(10), knowingly distributing or possessing with intent to distribute heroin violates the Controlled Substances Act, see 21 U.S.C. § 841(a)(1). Doing so is a felony, i.e. , a crime punishable by more than one year of imprisonment under federal law. See 21 U.S.C. § 841(b)(1)(C). Accordingly, because distributing heroin is a drug trafficking crime, we must consider the meaning of "distribute."

The term "distribute" means "deliver." See 21 U.S.C. § 802(11). And "deliver" means "the actual, constructive, or attempted transfer of a controlled substance or a listed chemical, whether or not there exists an agency relationship." Id. § 802(8). Accordingly, one may commit a drug trafficking crime by actually delivering, attempting to deliver or possessing with intent to deliver heroin.

Because Sandoval argues the Oregon statute under which he was convicted criminalizes solicitation, we must next determine whether the meaning of "attempt" under the Controlled Substances Act includes solicitation. The Controlled Substances Act does not define the term "attempt." See 21 U.S.C. §§ 802, 846. Nevertheless, mere solicitation of controlled substances does not constitute "attempted" delivery under the Controlled Substances Act. See United States v. Rivera-Sanchez , 247 F.3d 905, 908–09 (9th Cir. 2001) (en banc), superseded on other grounds as stated in Guerrero-Silva v. Holder , 599 F.3d 1090, 1092 (9th Cir. 2010) ; see also Leyva-Licea v. INS , 187 F.3d 1147, 1150 (9th Cir. 1999) ; Coronado-Durazo , 123 F.3d at 1325–26. The Controlled Substances Act "does not mention solicitation," unlike "attempt" and "conspiracy." Rivera-Sanchez , 247 F.3d at 909 (quoting Leyva-Licea , 187 F.3d at 1150 ); see also Coronado-Durazo , 123 F.3d at 1325 ; 21 U.S.C. § 846 (prescribing felony punishment for attempting or conspiring to deliver a controlled substance). Although strongly corroborative of intent to commit a crime, offering to deliver a controlled substance does not cross the line between preparation and attempt for the purposes of the Controlled Substances Act. See Rivera-Sanchez , 247 F.3d at 908–09 ; see also United States v. Yossunthorn , 167 F.3d 1267, 1272–73 (9th Cir. 1999) (ordering drugs from a known supplier was not an attempt when there was no agreement as to essential details regarding the transaction).

Therefore, to qualify as an aggravated felony, a drug trafficking crime for delivery of heroin must satisfy the following elements: (1) knowing or intentional (2) delivery, attempted delivery, conspiracy to deliver or possession with intent to deliver (3) heroin. This offense may not be accomplished by merely soliciting delivery—i.e. , offering delivery—of heroin. The next question is whether Sandoval's Oregon statute of conviction matches this federal definition.

Sandoval was convicted of delivering a controlled substance. His indictment identifies the controlled substance as heroin and cites Oregon Revised Statutes § 475.992. The only portion of that statute proscribing delivery of heroin states:

[I]t is unlawful for any person to manufacture or deliver a controlled substance. Any person who violates this subsection with respect to: (a) A controlled substance in Schedule I, is guilty of a ... felony.

Or. Rev. Stat. § 475.992(1)(a) (1998). The term "deliver" means "the actual, constructive or attempted transfer" of a controlled substance from one person to another. Id. § 475.005(8) (1998). "A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime." Id. § 161.405(1) (1998).

Under Oregon law, solicitation—even without possession—is a "substantial step toward committing the crime of attempted delivery under ORS 475.992(1)." State v. Sargent , 110 Or.App. 194, 822 P.2d 726, 728 (1991) ; see also State v. Lawrence , 231 Or.App. 1, 217 P.3d 1084, 1086 (2009). And, taking a substantial step toward committing the crime of attempted delivery by solicitation "constitutes delivery" in Oregon. Sargent , 822 P.2d at 728.

Sargent relied on State v. Self , 75 Or.App. 230, 706 P.2d 975 (1985), in concluding that mere solicitation supported a conviction for delivery of controlled substances under § 475.992(1)(a). See Sargent , 822 P.2d at 728. In Self , the defendant was convicted under Oregon's generic solicitation statute, Oregon Revised Statutes § 161.435. See 706 P.2d at 977. The court set out the specific facts:

At the time of the commission of the instant offense, defendant was serving a sentence in the Lane County Jail. While at that facility, he telephoned one Webb, whose foster daughter he knew, in an attempt to obtain Webb's help in securing $2000 for the release from jail of a third party, Brown. Defendant made

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