Johnson v. Barr ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 31, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
EVERETTE LIVINGSTON JOHNSON,
a/k/a Everette Burns, a/k/a Everette Allen,
Petitioner,
v. No. 19-9550
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
Petition for Review of an Order from the
Board of Immigration Appeals
_________________________________
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
_________________________________
1
The late Honorable Monroe G. McKay, United States Senior Circuit Judge,
heard oral argument and participated in the panel’s conference of this appeal, but
passed away before its final resolution. The practice of this court permits the
remaining two panel judges, if in agreement, to act as a quorum in resolving the
appeal. United States v. Wiles, 106 F.3d 1516, 1516 n* (10th Cir. 1997); 28 U.S.C.
§ 46(d).
CARSON, Circuit Judge.
_________________________________
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.
I.
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
2
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, 136 S. Ct. 2243, 2249 (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.
3
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).
II.
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, 135 S. Ct. 1980, 1986, 1987 (2015). Under the categorical approach, a state
drug conviction cannot qualify as a basis for removal if the state statute’s elements
4
are broader than the federal analogue. Descamps v. United States, 570 U.S. 254, 257
(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.
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. 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.
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
5
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.
III.
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
2
Johnson pleaded guilty to possessing hydrocodone, a schedule II substance,
the possession of which is prohibited by both the Colorado statute and the CSA.
6
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.
A.
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
hydroxybutyrate. Id. Had the Colorado legislature intended for a specific controlled
7
substance listed in schedule I or II to constitute an essential element, it could have
separately listed the substance in the statute as it did with flunitrazepam, ketamine,
and gamma hydroxybutyrate. But the legislature did not do so. Instead, the
legislature chose to subsume all substances listed in schedule I or II as a “means” to
prove that a person possessed a schedule I or II controlled substance. We therefore
conclude that the statutory language demonstrates that a jury need only conclude
beyond a reasonable doubt that the defendant possessed a schedule I or II substance;
a jury does not, however, need to determine beyond a reasonable doubt the specific
identity of the substance.
The government contends that the Colorado statute inherently requires that a
jury identify the specific controlled substance because that is the only way the jury
can categorize a controlled substance as schedule I or II. But we, as well as the
Supreme Court, reject such arguments. In Mathis, the Supreme Court reasoned that
where “a statute requires use of a ‘deadly weapon’ as an element of a crime and
further provides that the use of a ‘knife, bat, or similar weapon’ would all qualify,”
such a statute merely “specifies diverse means of satisfying a single element of a
single crime.” 136 S. Ct. at 2249 (emphasis added). “A jury could convict even if
some jurors conclude[d] that the defendant used a knife while others conclude[d] he
used a gun, so long as all agreed that the defendant used a ‘deadly weapon.’” Id.
(internal quotation marks and citation omitted) (alterations in original).
Relevant here, C.R.S. § 18-18-403.5(2)(a) provides that a person knowingly
possesses a controlled substance by possessing a “substance listed in schedule I or II
8
of part 2 of this article.” Thus, the statute treats all controlled substances listed in
schedules I and II categorically—based on schedule, not identity. We thus conclude
that the identity of a controlled substance is like a “knife, gun, bat, or similar
weapon”—i.e., the identity of the substance constitutes “specifie[d] diverse means”
of proving that the defendant possessed a schedule I or II controlled substance.3
Mathis, 136 S. Ct. at 2249. Thus, a jury need not unanimously decide the specific
identity of the substance, so long as it can unanimously agree that the defendant
possessed a schedule I or II controlled substance.
B.
We also conclude that the statutory punishments under the Colorado statute
indicate that the identity of a particular controlled substance is not an element of the
offense. For example, C.R.S. § 18-18-403.5 carries different punishments based on
schedule groupings. “If statutory alternatives carry different punishments then . . .
they must be elements.” Mathis, 136 S. Ct. at 2256. A conviction under § 18-18-
403.5(2)(a) for possession of a schedule I or II controlled substance is a level 4 drug
felony. But a conviction under § 18-18-403.5(2)(c) for possession of a schedule III,
IV, or V controlled substance is a level 1 drug misdemeanor. Thus, although the
alternative schedule groupings carry different punishments, the individual substances
listed within each schedule do not.
3
As an example, a jury could still return a guilty verdict under the statute,
even if half the jury concluded that the defendant possessed heroin (schedule I),
while the other half concluded that the defendant possessed raw opium (schedule II).
9
We also find persuasive our decision in Arellano v. Barr, 784 F. App’x 609
(10th Cir. 2019) (unpublished), in which we analyzed a strikingly similar 1997
Colorado statute dealing with possession of a controlled substance. We concluded
“that the substance is not an element” because unlike the schedules, which carry
different punishments, “the substances only carry different punishments if they fall in
different schedules.” Id. at 612–13 (internal quotation marks omitted). We thus held
that “because the schedules are ‘statutory alternatives [that] carry different
punishments,’ they are elements.” Id. at 613 (alteration in original). We find the
same true today.
Although the Colorado statute may be divisible as to the particular schedules,
the statute is indivisible as to the identity of the particular controlled substance. And
because the Colorado statute includes morpholine as a schedule II controlled
substance, and the CSA does not, the Colorado statute’s schedules sweep more
broadly. Thus, no categorical match exists between the state and federal schedules.
C.
State law can also help determine whether a statutory alternative is an
“element” or a “means.” See Mathis, 136 S. Ct. at 2256; United States v. Degeare,
884 F.3d 1241, 1248 (10th Cir. 2018). Here, no Colorado court opinion directly
answers the question as to whether the identity of a particular controlled substance is
an element or means.4 But Colorado’s jury instructions help explain which elements
4
Johnson cites People v. Perea, 126 P.3d 241 (Colo. App. 2005) to support his
position that C.R.S. § 18-18-403.5(1), (2)(a) is indivisible as to the identity of the
10
a jury must agree on to convict a defendant for the crime of possessing a controlled
substance.
The 2008 legacy jury instructions for possession of a controlled substance
read:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. possessed
5. the controlled substance.
See Chapter 18, Archived Chapters of Colorado Jury Instructions – Criminal (2008)
(emphasis added). In 2014, however, the Colorado Supreme Court changed the
instructions to read:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. possessed a controlled substance.
Chapter 18, Colorado Jury Instructions – Criminal (2014) (emphasis added).
Importantly, the Colorado Supreme Court broadened the language of the model jury
instructions from “the” controlled substance to “a” controlled substance before
Johnson pleaded guilty in 2016. Use of the definite article “the” refers to a specific
noun (namely, the specific controlled substance). Use of the indefinite article “a,”
particular substance. In Perea, the Colorado Court of Appeals held that a conviction
under the controlled substances statute requires “only that a person know that he or
she possesses a controlled substance, and not that he or she know the precise
controlled substance possessed.” 126 P.3d at 245. While we recognize that Perea
addresses the mens rea aspect of the statute, it bolsters our conclusion that the
identity of the specific controlled substance is not an element under the statute.
11
however, refers to non-specific nouns. This change in the jury instructions suggests
that the specific identity of a controlled substance is not an element under the statute.
And the applicable jury instructions reinforce our holding in Arellano that C.R.S.
§ 18-18-403.5(1), (2)(a) is divisible only as to the schedule, but indivisible as to the
particular substance within a schedule.
We conclude that under the categorical approach, C.R.S. § 18-18-403.5(1),
(2)(a) is broader than the CSA because it criminalizes possessing morpholine, while
the CSA does not. Moreover, because the identity of a particular substance listed in
schedule I or II is a means rather than an element of the offense, C.R.S. § 18-18-
403.5(1), (2)(a) is indivisible, and we thus do not apply the modified categorical
approach. Finally, because no categorical match exists between the Colorado statute
and the federal CSA, Johnson’s state drug conviction cannot qualify as a predicate
for removal from the United States.
VACATED AND REMANDED.
12