Leonel Sandoval v. Jefferson B. Sessions ( 2017 )


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  •                 FOR PUBLICATION
    
      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT
    
    
    LEONEL SANDOVAL, AKA Lione               No. 13-71784
    Sandoval,
                         Petitioner,          Agency No.
                                             A090-808-120
                    v.
    
    JEFFERSON B. SESSIONS III, Attorney      AMENDED
    General,                                  OPINION
                           Respondent.
    
    
           On Petition for Review of an Order of the
               Board of Immigration Appeals
    
           Argued and Submitted November 8, 2016
                      Portland, Oregon
    
                    Filed January 27, 2017
                   Amended August 8, 2017
    
      Before: M. Margaret McKeown, William A. Fletcher
            and Raymond C. Fisher, Circuit Judges.
    
                   Opinion by Judge Fisher
    2                     SANDOVAL V. SESSIONS
    
                                SUMMARY*
    
    
                                Immigration
    
       The panel filed an amended opinion granting Leonel
    Sandoval’s petition for review of the Board of Immigration
    Appeals’ decision finding him ineligible for cancellation of
    removal based on his conviction for delivery of a controlled
    substance under Oregon Revised Statutes § 475.992(1)(a),
    and remanded.
    
        The panel held that the Oregon law is not a categorical
    aggravated felony because its definition of “delivery”
    includes mere solicitation, and the federal Controlled
    Substances Act does not punish soliciting delivery of
    controlled substances. The panel further held that the
    modified categorical approach does not apply because the
    Oregon law is indivisible with respect to whether an
    “attempt” is accomplished by solicitation.
    
         Noting that the previously published version of this
    opinion also considered whether the Oregon law was an
    “illicit trafficking” aggravated felony, the panel declined to
    consider that issue because the BIA had not considered it.
    
    
    
    
        *
          This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
                        SANDOVAL V. SESSIONS                          3
    
                               COUNSEL
    
    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.
    
    
                               OPINION
    
    FISHER, Circuit Judge:
    
        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.
    
    
    
    
         1
           Section 475.992(1)(a) is currently codified at Oregon Revised
    Statutes § 475.752.
    4                    SANDOVAL V. SESSIONS
    
                                      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,
    
    
    
        2
           Sandoval was recently pardoned for his conviction, but we do not
    consider whether or how the pardon affects Sandoval’s ability to obtain
    relief from deportation.
                      SANDOVAL V. SESSIONS                       5
    
    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, 
    133 S. Ct. 2276
    ,
    2281 (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 (2010). We start with the definition of “aggravated
    felony” as used in 8 U.S.C. § 1101(a)(43).
    6                     SANDOVAL V. SESSIONS
    
        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 (2006); see also Carachuri-
    Rosendo, 560 U.S. at 581–82. 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, 
    133 S. Ct. 1678
    , 1683 (2013); Lopez, 549 U.S. at 60 (“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,
    
    
    
        3
           The previously published version of this opinion also considered
    whether § 475.992(1)(a) was an “illicit trafficking” offense under 8 U.S.C.
    § 1101(a)(43)(B), which is also an aggravated felony. See Sandoval v.
    Yates, 
    847 F.3d 697
    , 699, 701 (9th Cir. 2017). Because the BIA did not
    consider this issue, we decline to do so here.
        4
          The Controlled Substances Act defines “felony” as “any Federal or
    State offense classified by applicable Federal or State law as a felony.”
    21 U.S.C. § 802(13). But 18 U.S.C. § 3559(a) controls for immigration
    purposes. See Moncrieffe, 133 S. Ct. at 1683; see also Carachuri-
    Rosendo, 560 U.S. at 567.
                      SANDOVAL V. SESSIONS                       7
    
    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
    8                 SANDOVAL V. SESSIONS
    
    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).
                      SANDOVAL V. SESSIONS                       9
    
        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,
    
    822 P.2d 726
    , 728 (Or. Ct. App. 1991); see also State v.
    Lawrence, 
    217 P.3d 1084
    , 1086 (Or. Ct. App. 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, 
    706 P.2d 975
     (Or. Ct. App.
    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 about six phone calls, the first two to the
           foster daughter. During the fourth call, when
           asked by Webb about collateral, defendant for
           the first time said that, after his release,
           Brown would go to two places in Eugene and
           get the money to repay Webb. Then, as a
           further reward, Webb and Brown would go to
           San Francisco, where Brown would obtain
           and give Webb five kilos of cocaine.
    10                 SANDOVAL V. SESSIONS
    
    Id. Self was convicted of “solicitation of attempted delivery
    of an illegal substance.” Id. The appellate court affirmed.
    See id.
    
        That the appellate court in Sargent said the facts of Self
    were “illustrative” is telling. See Sargent, 822 F.2d at 728.
    Self did not possess or even offer to deliver the cocaine. See
    Self, 706 P.2d at 977. Instead, he tried to arrange the release
    of a third party, promising that same third party would obtain
    cocaine in exchange for assistance in the third party’s release.
    See id. There was no agreement to accomplish this scheme.
    See id. Further, the court recited no facts indicating the third
    party’s willingness to perform the promised criminal acts.
    See id. Nevertheless, the appellate court in Sargent pointed
    to Self as the “illustrative” case supporting its conclusion that
    “delivery” under § 475.992(1)(a) includes solicitation.
    Sargent, 822 P.2d at 728. This holding has not been
    disturbed by later Oregon case law.
    
        For example, in State v. Pollock, 
    73 P.3d 297
     (Or. Ct.
    App. 2003), aff’d on other grounds, 
    102 P.3d 684
     (Or. 2004)
    the court reversed a pretrial order suppressing evidence
    against a defendant charged under § 475.992 for delivery of
    a controlled substance. In Pollock, an officer had been told
    by witnesses that the defendant had tried to sell them ecstasy,
    a controlled substance. See id. at 298. The trial court found
    that “an offer to sell a controlled substance is, standing alone,
    insufficient to establish probable cause to believe that an
    attempted transfer has occurred.” Id. at 299. The appellate
    court reversed:
    
            We conclude that offering to sell a controlled
            substance constitutes a substantial step
            toward a completed transfer of that substance.
                       SANDOVAL V. SESSIONS                      11
    
           As the court explained in State v. Walters,
           
    311 Or. 80
    , 85, 
    804 P.2d 1164
    , cert. den.,
           
    501 U.S. 1209
    , 
    111 S. Ct. 2807
    , 
    115 L. Ed. 2d 979
     (1991), “‘to be a substantial step the act
           must be “strongly corroborative of the actor’s
           criminal purpose,”’ . . . i.e., [the] defendant’s
           conduct must (1) advance the criminal
           purpose charged and (2) provide some
           verification of the existence of that purpose.”
           (Citations omitted.) An offer to sell a
           controlled substance meets the two-part test
           the court identified in Walters.               It
           “substantially advances” the goal of
           completing the transaction. See id. An offer
           to sell goes beyond mere preparation and
           shows a commitment to completing the
           transfer if the offer is accepted. Additionally,
           the offer “provide[s] some verification of the
           existence of [defendant’s criminal] purpose.”
           See id. Taking defendant at his word, he
           would have immediately transferred the
           ecstasy to Andersen and Carver if they had
           accepted his offer. At a minimum, the officer
           reasonably could conclude from defendant’s
           offer to sell a controlled substance that it was
           more likely than not that he had intentionally
           taken a substantial step toward the completed
           transfer of that substance.
    
    Id. at 300 (alterations in original) (emphases added). Thus,
    under Oregon law, the offer to deliver a controlled substance
    is enough to complete a substantial step toward an intended
    transfer, i.e., offering to deliver a controlled substance is an
    attempt under Oregon law. See id. But the mere offer to
    12                SANDOVAL V. SESSIONS
    
    deliver a controlled substance – i.e., the act of soliciting
    delivery – is not a drug trafficking crime under the Controlled
    Substances Act. See Rivera-Sanchez, 247 F.3d at 908–09.
    Accordingly, a statute that punishes the mere offer to deliver
    a controlled substance is not an aggravated felony under the
    categorical approach. See id. at 909.
    
        The government contends a conviction under
    § 475.992(1)(a) requires more than simply offering to deliver
    a controlled substance. It relies on State v. Johnson, 
    123 P.3d 304
     (Or. Ct. App. 2005). We are not persuaded.
    
        In Johnson, the defendant was convicted of both
    attempted murder and solicitation to commit murder. See id.
    at 306. During phone conversations and in online chats, the
    defendant asked a friend to kill both his wife and daughter,
    suggesting methods for the murders and offering to make sure
    the friend would “never want for anything” if she did as
    asked. See id. Because the state had no evidence of a
    “concrete” plan outlined for the murder of his wife and child,
    the defendant argued the evidence was insufficient to support
    a solicitation or attempt conviction. See id. at 307–08. The
    appellate court disagreed and affirmed his conviction on
    appeal. See id. at 310. The government contends Johnson
    stands for the proposition that mere solicitation – simply
    offering to deliver a controlled substance – is not enough to
    convict under § 475.992(1)(a). We do not read it that
    broadly.
    
        First, Johnson did not involve a controlled substance
    offense under Oregon law. See id. at 305. Instead, it dealt
    with attempted murder and solicitation to commit murder.
                        SANDOVAL V. SESSIONS                         13
    
    See id. at 306.5 Thus, it is not clear whether Johnson is
    applicable here.
    
       Second, even if Johnson is applicable, the standards the
    court outlined match those in Sargent:
    
            In State v. Sargent . . ., we held that, “if a
            person solicits another to engage in conduct
            constituting an element of the crime of
            delivery, e.g., to provide to the person a
            controlled substance for the purpose of
            distribution to third parties, the person has
            attempted delivery . . . .” We see no reason to
            depart from that reasoning here, and we
            decline to hold that solicitation of a knowing
            agent is categorically disqualified as a
            “substantial step” under ORS 161.405.
            Rather, as the statute plainly states,
            solicitation requires a “substantial step.”
            Solicitation of a guilty person qualifies as a
            “substantial step” if, under the facts, the
            defendant’s actions exceed mere preparation,
            advance the criminal purpose charged, and
            provide some verification of the existence of
            that purpose.
    
    Id. at 309–10 (footnotes omitted). The appellate court’s
    reasoning in Johnson was that solicitation is both strong
    evidence of criminal purpose and a substantial step toward
    accomplishing that purpose under Sargent. See id. Nothing
    in Johnson requires a defendant to take some affirmative act
    
        5
          We do not consider whether solicitation to commit murder is an
    aggravated felony.
    14                    SANDOVAL V. SESSIONS
    
    to further the goal of the requested criminal behavior or
    specify how the crime would take place. See id. at 308
    (“[The] details of how the crime is to be committed need not
    be specified.”).6 Johnson does not limit Sargent in any way.
    
           In sum, the government’s argument fails to acknowledge
    Sargent’s and Pollock’s explicit statements that a conviction
    under § 475.992(1)(a) may be supported by merely offering
    to deliver controlled substances. See Sargent, 822 P.2d at
    728 (“We conclude that, if a person solicits another to engage
    in conduct constituting an element of the crime of delivery
    . . ., the person has taken a substantial step toward committing
    the crime of attempted delivery . . . [and] [u]nder that statute,
    the conduct constitutes delivery.”); Pollock, 73 P.3d at 300
    (“We conclude that offering to sell a controlled substance
    constitutes a substantial step toward a completed transfer of
    that substance.”). As we have repeatedly held, solicitation of
    controlled substances is not an aggravated felony under the
    Controlled Substances Act. See, e.g., Rivera-Sanchez,
    247 F.3d at 909.
    
        Because Oregon’s definition of “delivery” includes
    solicitation, § 475.992(1)(a) is not a categorical match to a
    “drug trafficking crime.” Therefore, Sandoval’s conviction
    
    
    
         6
           This was exemplified in State ex rel. Juvenile Department of Union
    County v. Krieger, 
    33 P.3d 351
    , 352 (Or. Ct. App. 2001), in which the
    Oregon appellate court affirmed “without discussion” a conviction for
    solicitation. There, a minor asked several students to help him “blow up
    or shoot up” their school. See id. All of these requests were rejected and
    the minor “never pursued any further discussion” or provided “specific
    plans to carry out the shooting or bombing.” Id. Nevertheless, the
    minor’s conviction for solicitation was summarily affirmed by the court.
    See id.
                       SANDOVAL V. SESSIONS                        15
    
    for delivery of heroin does not qualify as an aggravated
    felony under the categorical approach.
    
                                   III
    
        Our inquiry does not end here, however. We must next
    address whether the modified categorical approach may be
    used to determine whether Sandoval’s conviction qualifies as
    an aggravated felony.
    
        Only divisible statutes are subject to the modified
    categorical approach. See Lopez-Valencia v. Lynch, 
    798 F.3d 863
    , 867–69 (9th Cir. 2015) (holding Descamps divisibility
    analysis is applicable in the immigration context).
    “[D]ivisibility hinges on whether the jury must unanimously
    agree on the fact critical to the federal statute.” Id. at 868–69.
    Such critical facts are “elements,” which are the “things the
    ‘prosecution must prove to sustain a conviction.’” Mathis v.
    United States, 
    136 S. Ct. 2243
    , 2248 (2016) (quoting Black’s
    Law Dictionary 634 (10th ed. 2014)).
    
         To resolve the question of whether statutory alternatives
    are either elements or means, a court looks first to the statute
    itself and then to the case law interpreting it. See id. at
    2256–57; see also Almanza-Arenas v. Lynch, 
    815 F.3d 469
    ,
    479–82 (9th Cir. 2016) (en banc). If state law fails to answer
    the question, a court may look to Shepard documents, which
    may be helpful in determining divisibility. See Mathis,
    136 S. Ct. at 2256–57; see also Descamps, 133 S. Ct. at 2284
    (citing Shepard v. United States, 
    544 U.S. 13
    , 25–26 (2005)).
    But if the statute, case law and Shepard documents fail to
    speak plainly as to whether statutory alternatives are elements
    instead of means, the statute is indivisible and the modified
    categorical approach has no application. See Mathis,
    16                SANDOVAL V. SESSIONS
    
    136 S. Ct. at 2257; see also In re Chairez-Castrejon, 26 I. &
    N. Dec. 819, 819–20 (BIA 2016) (holding Descamps and
    Mathis divisibility analysis “applies in immigration
    proceedings nationwide to the same extent that it applies in
    criminal sentencing proceedings”).
    
         The government does not argue § 475.992(1)(a) is
    divisible. Instead, it urges us to remand to the BIA to
    determine whether § 475.992 is divisible. When an agency
    does not reach an issue for which it is owed Chevron
    deference, “the proper course, except in rare circumstances,
    is to remand to the agency for additional investigation or
    explanation.” INS v. Ventura, 
    537 U.S. 12
    , 16 (2002)
    (internal quotation marks omitted); see also Gonzales v.
    Thomas, 
    547 U.S. 183
    , 186 (2006). But interpreting criminal
    law is not a matter placed primarily in agency hands. See
    Hoang, 641 F.3d at 1161. We owe no deference to the
    decision of the BIA on this issue and there is no reason to
    remand for the BIA to decide the issue of divisibility in the
    first instance. See Rivera v. Lynch, 
    816 F.3d 1064
    , 1078 n.13
    (9th Cir. 2016) (“The question of [a state criminal statute’s]
    divisibility ‘requires neither factual development nor agency
    expertise’ and is properly analyzed by this court.” (quoting
    Chavez-Solis v. Lynch, 
    803 F.3d 1004
    , 1012 n.6 (9th Cir.
    2015))).
    
        Section 475.992(1)(a) does not list “solicitation” as an
    alternative method of accomplishing delivery. Nor is
    solicitation included in the express statutory definition of
    “deliver.” See id. § 475.005(8). The inclusion of solicitation
    as a means of accomplishing delivery is a judicial
    interpretation of the word “attempt.” Therefore, this is a
    circumstance where the divisibility analysis is
    “straightforward” because § 475.992(1)(a) “sets out a single
                      SANDOVAL V. SESSIONS                      17
    
    (or ‘indivisible’) set of elements to define a single crime.”
    Mathis, 136 S. Ct. at 2248. Solicitation is not an enumerated
    statutory alternative to delivery or attempt but is, instead,
    included within the meaning of those listed alternatives. See
    Sargent, 822 P.2d at 728. The statute is therefore indivisible
    with respect to whether an “attempt” is accomplished by
    solicitation.
    
        The government argues we have previously held
    § 475.992(1)(a) could qualify as an aggravated felony under
    the modified categorical approach, citing United States v.
    Chavaria-Angel, 
    323 F.3d 1172
    , 1177–78 (9th Cir. 2003). In
    that case, we affirmed the district court’s conclusion that the
    defendant’s § 475.992 offense for delivery of a controlled
    substance was an aggravated felony based on a review of
    uncertified Oregon state records. See id. at 1174, 1177–78.
    However, the decision rested on the method rejected in
    Descamps, 133 S. Ct. at 2282–83, 2286–91, and applied the
    modified categorical approach without performing any
    divisibility analysis. See Chavaria-Angel, 323 F.3d at
    1177–78. The analysis improperly focused on what the
    defendant actually did as opposed to the crime of which the
    defendant was convicted. Compare id. (focusing on the
    evidence supporting a finding the defendant sold controlled
    substances), with Descamps, 133 S. Ct. at 2287 (calling this
    method a “modified factual” approach, which turns an
    “elements-based inquiry into an evidence-based one”). The
    opinion did not consider whether a jury, when convicting a
    defendant of delivery of a controlled substance, must
    unanimously choose between alternative methods of delivery,
    including solicitation. See Chavaria-Angel, 323 F.3d at
    1177–78. Descamps and Mathis require these inquiries. See
    Mathis, 136 S. Ct. at 2256–57; Descamps, 133 S. Ct. at
    2286–91. Chavaria-Angel, therefore, is not controlling here.
    18                SANDOVAL V. SESSIONS
    
        To summarize, § 475.992(1)(a) is overbroad in its
    definition of “delivery,” and the modified categorical
    approach may not be applied because § 475.992(1)(a) is
    indivisible with respect to whether an “attempt” is
    accomplished by solicitation.       Therefore, we hold a
    conviction for delivering heroin under § 475.992(1)(a) is not
    an aggravated felony. Sandoval’s petition is granted.
    
         GRANTED AND REMANDED.