FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELISIO ATENIA LORENZO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 15-70814

Agency No.

A038-467-916

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 15, 2018

Pasadena, California

Filed August 29, 2018

Before: Sidney R. Thomas, Chief Judge, and Raymond C. 

Fisher and Carlos T. Bea, Circuit Judges.*

Opinion by Judge Fisher

 * This case was submitted to a panel that included Judge Stephen 

Reinhardt. Following Judge Reinhardt’s death, Judge Bea was drawn by 

lot to replace him. Ninth Circuit General Order 3.2h. Judge Bea has 

reviewed all case materials.
2 ATENIA LORENZO V. SESSIONS

SUMMARY**

Immigration

The panel granted Elisio Atenia Lorenzo’s petition for 

review of a decision of the Board of Immigration Appeals 

that found Lorenzo removable for a controlled substance 

offense, holding that: 1) where a state statute contains two 

layers of disjunctive lists, the analysis outlined in Taylor v. 

United States, 495 U.S. 575 (1990), for applying the 

categorical approach, applies to both layers of the statute and 

must be performed twice; and 2) a methamphetamine 

conviction under California Health & Safety Code §§ 11378 

or 11379(a) does not qualify as a controlled substance 

offense under 8 U.S.C. § 1227(a)(2)(B)(i), and remanded. 

The panel explained that § 11378 makes it unlawful to 

possess for sale a controlled substance specified in certain 

subdivisions of California Health & Safety Code § 11055, 

and that § 11379(a) makes it unlawful to transport, import, 

sell, furnish, administer, or give away a controlled substance 

specified in certain subdivisions of § 11055. Section 11055, 

in turn, identifies a list of substances, including 

methamphetamine and its isomers. The Controlled 

Substances Act likewise includes methamphetamine and its 

isomers.

However, the panel concluded that the California 

definition of methamphetamine is broader than the federal 

definition because the California definition includes both 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ATENIA LORENZO V. SESSIONS 3

geometric and optical isomers of methamphetamine, while 

the CSA includes optical isomers, but not geometric isomers. 

Accordingly, the panel held that the California definition is 

overbroad under the first step of the categorical approach. 

The panel recognized that, in applying the first step of 

the categorical approach in this case, it had to examine a 

disjunctive list within another disjunctive list. The panel 

explained that it was therefore not enough to conclude, as 

this court had in United States v. Martinez-Lopez, 864 F.3d 

1034 (9th Cir. 2017) (en banc), that California’s disjunctive 

list of controlled substances is overbroad but divisible. 

Rather, in this instance, another Taylor analysis – addressing 

whether California’s disjunctive list of types of 

methamphetamine is overbroad and, if so, divisible – was 

also required.

Next, the panel held that the overbroad 

methamphetamine element of §§ 11378 and 11379(a) is not 

divisible, observing that, under California law, geometric 

and optical isomers of methamphetamine are alternative 

means of committing a single offense, not alternative 

elements of committing several offenses. 

Having concluded that the California statute is overbroad 

and not divisible with respect to the overbroad element, the 

panel explained it could not apply the modified categorical 

approach to determine whether Lorenzo’s convictions 

involved a type of methamphetamine covered by the CSA. 

As a result, the panel concluded that Lorenzo’s convictions 

under §§ 11378 and 11379(a) do not qualify as controlled 

substance offenses that render him removable under 

8 U.S.C. § 1227(a)(2)(B)(i).
4 ATENIA LORENZO V. SESSIONS

Because the immigration judge and BIA did not address 

whether Lorenzo was removable on the ground that his 

§ 11379(a) conviction constitutes an illicit trafficking 

aggravated felony, the panel did not address that question. 

However, the panel noted that, if the BIA addresses the 

government’s aggravated felony theory on remand, it should 

consider whether that theory suffers from the same flaw as 

the government’s theory of removability under 8 U.S.C. 

§ 1227(a)(2)(B)(i).

COUNSEL

Benjamin F. Aiken (argued), Orrick Herrington & Sutcliffe 

LLP, Washington, D.C.; Cathy C. Shyong, Orrick 

Herrington & Sutcliffe LLP, Menlo Park, California; Karen 

Johnson-McKewan, Orrick Herrington & Sutcliffe LLP, San 

Francisco, California; for Petitioner.

Scott G. Stewart (argued), Washington, D.C., for 

Respondent.

OPINION

FISHER, Circuit Judge:

This case raises a novel yet straightforward question in 

our application of Taylor v. United States, 495 U.S. 575 

(1990): whether the Taylor analysis must be performed twice 

if a state statute contains two layers of disjunctive lists. We 

hold Taylor applies to both layers of the statute. Following 

this approach, we conclude the definition of 

“methamphetamine” applicable to convictions under 

California Health & Safety Code §§ 11378 and 11379(a) is 
ATENIA LORENZO V. SESSIONS 5

broader than the definition of methamphetamine under the 

federal Controlled Substances Act, 21 U.S.C. § 812. Under 

the first step in the categorical approach, therefore, a 

conviction for a methamphetamine offense under §§ 11378 

or 11379(a) does not qualify as a “controlled substance” 

violation under 8 U.S.C. § 1227(a)(2)(B)(i). We further 

conclude the methamphetamine element applicable to a 

conviction under §§ 11378 or 11379(a) is not divisible, 

because the different varieties of methamphetamine covered 

by California law are alternative means of committing a 

single crime rather than alternative elements of separate 

crimes. We therefore do not apply the modified categorical 

approach. Because the methamphetamine element of 

§§ 11378 and 11379(a) is overbroad and the modified 

categorical approach does not apply, we hold a 

methamphetamine conviction under §§ 11378 or 11379(a) 

does not qualify as a controlled substance offense under 8 

U.S.C. § 1227(a)(2)(B)(i). Accordingly, we hold Lorenzo is 

not removable for the reasons stated by the BIA.1

I.

Lorenzo, a native and citizen of the Philippines, entered 

the United States in 1983 and has lived in this country as a 

lawful permanent resident since that time. In 2013, he pled 

nolo contendere to possession of methamphetamine, in 

violation of § 11378, and transportation of 

methamphetamine, in violation of § 11379(a). The record of 

conviction does not identify the type of methamphetamine 

involved, and, under California law, “methamphetamine” is 

broadly defined to include “[m]ethamphetamine, its salts, 

 1 Unless otherwise noted, all further statutory citations are to the 

California Health and Safety Code.
6 ATENIA LORENZO V. SESSIONS

isomers, and salts of its isomers.” § 11055(d)(2). Lorenzo 

was sentenced to a year in jail and probation.

The Department of Homeland Security initiated removal 

proceedings against Lorenzo because of his 2013 state 

convictions. The notice to appear charged Lorenzo with 

removability under § 237(a)(2)(A)(iii) of the Immigration 

and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), on 

the ground that his § 11379(a) conviction constituted an 

aggravated felony under 8 U.S.C. § 1101(a)(43)(B), which 

defines the term “aggravated felony” to include, among 

other things, “illicit trafficking in a controlled substance, 

including a drug trafficking crime.” Alternatively, and as 

relevant here, the notice to appear charged Lorenzo with 

removability under § 237(a)(2)(B)(i) of the INA, 8 U.S.C. 

§ 1227(a)(2)(B)(i), on the ground that his §§ 11378 and 

11379(a) convictions constituted violations of state law 

“relating to a controlled substance.”

Lorenzo moved to terminate removal proceedings, 

contending his methamphetamine convictions did not 

necessarily involve a controlled substance as defined by 

federal law. Specifically, he argued the definition of 

methamphetamine under California law is broader than the 

definition of methamphetamine under the federal Controlled 

Substances Act (CSA), because the CSA’s definition 

includes only optical isomers of methamphetamine, whereas 

California law includes both optical and geometric isomers 

of methamphetamine.

An immigration judge (IJ) denied Lorenzo’s motion and 

ordered him removed, concluding that Lorenzo’s 

convictions qualified as controlled substance offenses under 

8 U.S.C. § 1227(a)(2)(B)(i). The BIA adopted and affirmed 

the IJ’s decision under Matter of Burbano, 20 I. & N. Dec. 
ATENIA LORENZO V. SESSIONS 7

872 (BIA 1994), while also providing its own analysis. 

Lorenzo timely petitioned for review.

II.

We review the BIA’s determination of purely legal 

questions de novo, see Vasquez-Zavala v. Ashcroft, 324 F.3d 

1105, 1107 (9th Cir. 2003), including whether a particular 

conviction under state law is a removable offense, see

Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 

2016), and whether a statute is divisible, see United States v. 

Martinez-Lopez, 864 F.3d 1034, 1039–40 (9th Cir. 2017) (en 

banc) (citing Almanza-Arenas v. Lynch, 815 F.3d 469, 477 

(9th Cir. 2016) (en banc)).

III.

We hold Lorenzo’s methamphetamine convictions under 

§§ 11378 and 11379(a) do not qualify as grounds for 

removal under 8 U.S.C. § 1227(a)(2)(B)(i).

A.

We use “a three-step analysis” to determine whether a 

state conviction qualifies as a controlled substance offense 

under federal law. See Martinez-Lopez, 864 F.3d at 1038. 

First, we determine whether state law bars “the same amount 

of or less conduct than” federal law. Id. (quoting United 

States v. Hernandez, 769 F.3d 1059, 1062 (9th Cir. 2014)). 

If so, then the state conviction is a categorical match, and the 

state conviction is a ground for removability. See id. If the 

state law encompasses more conduct than the federal law, 

however, the state conviction does not qualify as a controlled 

substance offense under the first step in the categorical 

approach. In that case, we determine whether the state law 

is divisible – i.e., whether the overly broad element sets out 
8 ATENIA LORENZO V. SESSIONS

alternative means of committing a single crime or alternative 

elements of committing two or more distinct crimes. See id.

at 1038–39. At step three, if the statute is divisible, we 

employ the modified categorical approach, where we may 

look to documents in the record of conviction, but not the 

particular facts underlying the conviction, to determine 

whether the conviction qualifies. See Mathis v. United 

States, 136 S. Ct. 2243, 2249 (2016). If the statute is 

overbroad and not divisible, then the conviction cannot be a 

ground for removal. See id. at 2248–49.

B.

We begin by applying the first step in the categorical 

approach, determining whether the statutes of conviction are 

broader than federal law.

Section 11378 makes it a crime to “possess[] for sale a 

controlled substance that . . . is specified in subdivision (d), 

(e), or (f) . . . of Section 11055.” Section 11379(a) makes it 

unlawful to “transport[], import[] into this state, sell[], 

furnish[], administer[], or give[] away . . . any controlled 

substance which is . . . specified in subdivision (d) or (e) . . .

of Section 11055.” Section 11055, in turn, identifies a list 

of Schedule II substances, including, as relevant here, 

“[m]ethamphetamine, its salts, isomers, and salts of its 

isomers.” § 11055(d)(2). Section 11033 further provides 

that the term “isomer,” unless otherwise defined, “includes 

optical and geometrical (diastereomeric) isomers.” Thus, 

under California law, a methamphetamine conviction under 

§§ 11378 or 11379(a) may involve methamphetamine or it 

may involve methamphetamine’s “salts, isomers, [or] salts 

of its isomers,” including both “optical and geometrical . . .

isomers.”
ATENIA LORENZO V. SESSIONS 9

The CSA likewise applies to “[a]ny substance” that 

“contains any quantity of methamphetamine, including its 

salts, isomers, and salts of isomers.” 21 U.S.C. § 812 

Schedule II(c), Schedule III(a)(3). With respect to 

methamphetamine, however, the CSA applies only to optical 

isomers, not geometric isomers.

Under 21 U.S.C. § 802(14):

The term “isomer” means the optical isomer, 

except as used in schedule I(c) and schedule 

II(a)(4). As used in schedule I(c), the term 

“isomer” means any optical, positional, or 

geometric isomer. As used in schedule 

II(a)(4), the term “isomer” means any optical 

or geometric isomer.

Methamphetamine falls under Schedules II(c) (“any 

injectable liquid which contains any quantity of 

methamphetamine, including its salts, isomers, and salts of 

isomers”) and III(a)(3) (“Any substance (except an 

injectable liquid) which contains any quantity of 

methamphetamine, including its salts, isomers, and salts of 

isomers.”). Thus, for purposes of methamphetamine, the 

CSA covers only optical isomers. Federal law extends to 

geometric isomers with respect to substances listed on 

Schedules I(c) and II(a)(4), but methamphetamine is not 

included on those schedules.

We have no reason to believe that these distinctions 

between California and federal law are immaterial. Both 

California law and federal law go to great lengths to specify 

the types of isomers covered for specific controlled 

substances. California law, for example, carefully specifies 

the controlled substances for which isomers are covered at 

all. These substances are opiates; opium derivatives; 
10 ATENIA LORENZO V. SESSIONS

hallucinogenic substances, such as cannabis, peyote and 

psilocybin; depressants; cocaine base; opium; ecgonine;

stimulants, such as amphetamine and methamphetamine; 

dimethylamphetamine; N-ethylmethamphetamine; gamma 

hydroxybutyric acid; and fenfluramine. See §§ 11054(b), 

(c), (d), (e), (f), 11055(b)(1)–(2), (b)(7), (c), (d)(1), (d)(2), 

(d)(3), (d)(4), (e), 11056(b), (c)(11), 11057(d), (e), (f).

Next, like federal law, California law carefully specifies 

the types of isomers covered for each controlled substance. 

Under California’s default rule, both optical and geometric 

isomers are covered. See § 11033. But, like federal law, the 

California statutes specify exceptions to the default rule. 

Section 11054(d), relating to hallucinogenic substances, for 

instance, expands the default definition, stating that, “for 

purposes of this subdivision only, the term ‘isomer’ includes 

the optical, position, and geometric isomers.” See also

§§ 11056(b) (stimulants) (including “isomers (whether 

optical, position, or geometric)”), 11057(e) (fenfluramine) 

(same), (f) (stimulants) (same). Other provisions narrow the 

default definition, specifying that only optical isomers are 

included. E.g., §§ 11054(d)(20) (including “delta 1 cis or 

trans tetrahydrocannabinol, and their optical isomers; delta 6 

cis or trans tetrahydrocannabinol, and their optical isomers; 

delta 3,4 cis or trans tetrahydrocannabinol, and its optical 

isomers”), 11055(d)(1) (“Amphetamine, its salts, optical 

isomers, and salts of its optical isomers.”).2 In short, both 

 2 A comparison of California’s statutory treatment of amphetamine 

and methamphetamine is illustrative. These substances are listed 

immediately next to one another in § 11055(d), but with respect to 

amphetamine, only optical isomers are specified. Compare

§ 11055(d)(1) (“Amphetamine, its salts, optical isomers, and salts of its 

optical isomers.” (emphasis added)), with § 11055(d)(2) 

(“Methamphetamine, its salts, isomers, and salts of its isomers.”).
ATENIA LORENZO V. SESSIONS 11

California law and federal law carefully identify the types of 

isomers included for various controlled substances. 

California law includes geometric isomers of 

methamphetamine, but federal law does not.3

On its face, therefore, the California definition of 

methamphetamine is broader than the federal definition. 

Whereas the former includes geometric isomers of 

methamphetamine, the CSA does not. Accordingly, 

California law is facially overbroad under the first step in the 

categorical approach. See Martinez-Lopez, 864 F.3d at 

1038.

The government challenges this conclusion on two 

grounds, neither of which is persuasive. First, the 

government contends Lorenzo waived this issue by failing 

to raise it in his opening brief before this court. Lorenzo’s 

opening brief, however, plainly argued that California law is 

overbroad because it “prohibits both optical and geometric 

isomers of all listed controlled substances,” whereas the 

CSA “punishes the possession of optical isomers alone.” 

The government’s waiver argument, therefore, is without 

merit.

Second, the government argues Lorenzo’s convictions 

qualify as controlled substance offenses in light of United 

States v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016). There, 

the defendant argued that California law was broader than 

federal law because federal law contains a provision 

requiring the Attorney General to exclude from the CSA’s 

 3 The record does not tell us why California has elected to include 

geometric isomers with respect to a broader range of controlled 

substances than the CSA, but it has done so. In the absence of any 

evidence – either in the record or subject to judicial notice – to suggest 

that this distinction is not material, we must assume that it is.
12 ATENIA LORENZO V. SESSIONS

controlled substance schedules certain non-narcotic 

substances that are lawfully sold over the counter, without a 

prescription, under the federal Food, Drug, and Cosmetic 

Act. See 21 U.S.C. § 811(g)(1). In accordance with this 

statutory requirement, the Attorney General has 

promulgated 21 C.F.R. § 1308.22, which excludes 17 overthe-counter pharmaceutical products from the CSA 

schedules, including Levmetamfetamine (lDesoxyephedrine), or “L-meth,” a substance used in a nasal 

decongestant produced by Aphena Pharma and in Vicks 

VapoInhaler, sold by Procter & Gamble Co. Noting that no 

similar exceptions apply under California law, the defendant 

in Vega-Ortiz argued California law was “fatally overbroad 

because it criminalizes methamphetamine in all its forms, 

including its salts, isomers, and salts of its isomers without 

containing an exception for pharmaceutical products that 

contain ‘L-meth,’ although federal law excludes a particular 

product containing L-meth.” Vega-Ortiz, 822 F.3d at 1034.

We rejected the defendant’s argument:

Vega-Ortiz . . . maintains that the federal 

regulation excluding a particular product 

containing L-meth from the schedule of 

federal controlled substances renders 

California’s definition of methamphetamine 

broader than the definition of controlled 

substances in the Controlled Substances Act. 

However, in addressing a similar argument 

regarding an exemption for “administering” 

controlled substances that existed under 

federal law but not Washington state law, we 

focused on whether the defendant showed a 

“realistic probability” that a person would be 

prosecuted for the offense that assertedly 
ATENIA LORENZO V. SESSIONS 13

rendered the state statute overbroad. United 

States v. Burgos-Ortega, 777 F.3d 1047, 

1054–55 (9th Cir. 2015); see also Gonzales 

v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) 

(“[T]o find that a state statute creates a crime 

outside the generic definition of a listed crime 

in a federal statute requires . . . a realistic 

probability . . . that the state would apply its 

statute to conduct that falls outside the 

generic definition of a crime. . . .”). 

Applying this analysis to the facts here, to 

succeed on his claim Vega-Ortiz would need 

to show a “realistic probability” that he 

would be prosecuted under § 11378 for 

possession of the excluded product 

containing L-meth. Burgos-Ortega, 777 F.3d 

at 1054. He has failed to do so. As in 

Burgos-Ortega, § 11378 is not “overbroad on 

its face” and “does not expressly include 

conduct not covered by the generic offense, 

but rather is silent as to the existence of a 

parallel [L-meth] exception.” 777 F.3d at 

1055. Thus, Vega-Ortiz’s overbreadth 

arguments are unavailing, and we conclude 

that the district court properly applied the 

modified categorical approach to § 11378.

Id. at 1035–36 (first alteration added).

The government’s reliance on Vega-Ortiz is misplaced. 

Vega-Ortiz expressly distinguished a case, such as this one, 

in which the California statute is overbroad on its face. 

“Where, as here, a state statute explicitly defines a crime 

more broadly than the generic definition, no ‘legal 

imagination,’ is required to hold that a realistic probability 
14 ATENIA LORENZO V. SESSIONS

exists that the state will apply its statute to conduct that falls 

outside the generic definition of the crime. The state 

statute’s greater breadth is evident from its text.” United 

States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) 

(citation omitted). “[W]hen ‘[t]he state statute’s greater 

breadth is evident from its text,’ a defendant may rely on the 

statutory language to establish the statute as overly 

inclusive.” United States v. Vidal, 504 F.3d 1072, 1082 (9th 

Cir. 2007) (en banc) (citation omitted). Here, because the 

mismatch between the federal and state statutes is apparent 

on the face of the statutes, such that no rational interpretation 

of either statute would reconcile the two, Lorenzo is not 

required to “point to his own case or other cases in which the 

state courts in fact did apply the statute in the special 

(nongeneric) manner for which he argues.” Duenas-Alvarez, 

549 U.S. at 193.

We similarly reject the reasoning of the IJ and the BIA. 

The IJ concluded California and federal law were a match 

under the first step in the categorical approach because 

geometric isomers of methamphetamine do not exist. The 

IJ, however, did not substantiate that conclusion, the BIA did 

not adopt that rationale and the government does not 

advance a similar argument here. Nor is there evidence in 

the record to show that geometric isomers of 

methamphetamine do not in fact exist.

The BIA, in turn, reasoned that, under Matter of 

Ferreira, 26 I. & N. Dec. 415 (BIA 2014),

to defeat a charge of removability for a 

controlled substance violation based on a 

state law that criminalizes substances that 

may not be within the purview of the CSA, 

the respondent must present a realistic 

probability that the state would prosecute 
ATENIA LORENZO V. SESSIONS 15

such conduct. Here, although queried by the 

Immigration Judge, the respondent has 

presented no evidence of any cases in which 

a particular isomer was isolated for 

prosecution, rather than the court using the 

generic term methamphetamine.

But we are not bound by Ferreira in this case. Although 

Ferreira, 26 I. & N. Dec. at 420–21, concluded an individual 

must point to cases in which the state courts applied the 

statute of conviction in a nongeneric manner even in the case 

of a facially overbroad statute, we do not accord deference 

to that conclusion under either Chevron U.S.A. Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 

(1984), or National Cable & Telecommunications Ass’n v. 

Brand X Internet Services, 545 U.S. 967 (2005). Deference 

applies under Chevron and Brand X only “[w]hen a court 

reviews an agency’s construction of the statute which it 

administers.” Chevron, 467 U.S. at 842. Here, because 

Ferreira’s holding was an interpretation of Moncrieffe v. 

Holder, 569 U.S. 184, 206 (2013), and Duenas-Alvarez, 

549 U.S. at 193, not an interpretation of the INA, no 

deference is owed.4

We recognize that, in applying the first step in the 

categorical approach in this case, we have had to examine a 

disjunctive list within another disjunctive list. At the more 

general level, we must examine the disjunctive list of drug 

 4 The government, moreover, does not ask us to accord deference to 

Ferreira on this question, and other courts have not done so. See, e.g., 

Hylton v. Sessions, 897 F.3d 57, 64–65 (2d Cir. 2018) (rejecting Ferreira 

without according deference); Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 

2017) (same); Vazquez v. Sessions, 885 F.3d 862, 873–74 (5th Cir. 2018) 

(agreeing with Ferreira without according deference).
16 ATENIA LORENZO V. SESSIONS

types – e.g., cocaine, heroin, methamphetamine – covered 

by California law. See Martinez-Lopez, 864 F.3d at 1040–

41 (examining that disjunctive list and concluding that the 

drug types constitute alternative elements under California 

law). At the more specific level, however, California law 

also includes disjunctive lists within a drug type, listing, for 

example, several types of methamphetamine –

methamphetamine, its salts, its optical and geometric 

isomers, and salts of its isomers. See §§ 11033, 11055(d)(2).

Although we may not have expressly addressed this 

situation before, it is apparent that, when this situation arises, 

we must conduct a Taylor analysis with respect to both 

disjunctive lists. It is not enough to determine that §§ 11378 

and 11379(a) are overbroad and divisible with respect to the 

types of controlled substances they cover, because the 

methamphetamine element itself contains a disjunctive list. 

As a result, the question addressed through the Taylor

analysis – whether Lorenzo was convicted of possessing or

transporting a controlled substance covered under the federal 

CSA – requires that the Taylor analysis be conducted a 

second time. If California’s definition of methamphetamine 

is broader than the definition under federal law, Lorenzo’s 

convictions related to methamphetamine may not be 

convictions for a controlled substance under federal 

immigration law. Concluding, as in Martinez-Lopez, that 

California’s disjunctive list of controlled substances is 

overbroad but divisible is not enough. Another Taylor

analysis – addressing whether California’s disjunctive list of 

types of methamphetamine is overbroad and, if so, divisible 

– is required before we can ascertain whether Lorenzo has 

been convicted of a controlled substance offense covered by 

the CSA.
ATENIA LORENZO V. SESSIONS 17

C.

Having concluded that methamphetamine convictions 

under §§ 11378 and 11379(a) are overbroad under the first 

step in the categorical approach, we must consider whether 

the methamphetamine element of each of these statutes is 

divisible. That is, we must determine whether the different 

types of methamphetamine covered by the statutes –

including optical and geometric isomers – constitute 

alternative elements of separate crimes or alternative means 

of committing a single crime. See Martinez-Lopez, 864 F.3d 

at 1038–39.

We first look to “authoritative sources” in state law for a 

clear answer as to whether geometric and optical isomers of 

methamphetamine are alternative elements or alternative 

means. See Mathis, 136 S. Ct. at 2256; Martinez-Lopez, 

864 F.3d at 1046. If a state court decision “definitively 

answers the question,” we rely on that source. Mathis, 

136 S. Ct. at 2256.

Here, we have a definitive state law answer: geometric 

and optical isomers of methamphetamine are alternative 

means of committing a single offense, not alternative 

elements of committing several state controlled substance 

offenses. The methamphetamine element, therefore, is not 

divisible.

In People v. Schroeder, 70 Cal. Rptr. 491, 499 (Ct. App. 

1968), the California Court of Appeal explained that 

possession of different types of the same drug – e.g., 

different types of methamphetamine – “would constitute a 

single offense” under California law, because the drugs fell 

within the same classification in the drug schedule, which at 

that time was codified in Health & Safety Code § 11001. 

Possession of “[o]pium and its derivatives and compounds,” 
18 ATENIA LORENZO V. SESSIONS

for example, constituted a single offense. Id. (quoting 

former § 11001(a)(1)). So did possession of any type of drug 

within “[p]henathrene opium alkaloids, their salts, 

derivatives and compounds . . . morphine alkaloid, morphine 

salts, morphine compounds, and preparations.” Id. (quoting 

former § 11001(b)(1)). Accordingly, charges for two counts 

of opium possession and seven counts of phenathrene opium 

alkaloid possession required consolidation into two counts. 

See id. The California Supreme Court cited this aspect of 

Schroeder with approval in In re Adams, 536 P.2d 473, 477 

(Cal. 1975). Thus, under Schroeder and Adams, possession 

of multiple variations of the same drug constitutes a single 

crime under California law. Different types of 

methamphetamine, therefore, are alternative means of 

committing a single controlled substance offense, not 

alternative elements of distinct offenses.

This conclusion finds additional support in the way 

methamphetamine convictions are characterized by the 

California courts. The courts, for example, characterize a 

conviction as involving methamphetamine generally even 

when it may actually involve crystal methamphetamine – a 

salt of methamphetamine. See, e.g., People v. Buchanan, 

204 Cal. Rptr. 3d 167, 170, 172 (Ct. App. 2016); People v. 

Logan, 2014 WL 971444, at *1–2 (Cal. Ct. App. Mar. 13, 

2014); People v. Serb, 2012 WL 968082, at *2 (Cal. Ct. App. 

Mar. 22, 2012); People v. Laufasa, 115 Cal. Rptr. 3d 318, 

319 (Ct. App. 2010); People v. Vizcarrondo, 2005 WL 

2038215, at *1 (Cal. Ct. App. Aug. 25, 2005).

Indeed, charges may not allege the type of 

methamphetamine at issue unless a sentencing enhancement 

for crystal methamphetamine applies. California sentencing 

law provides that, “for an offense involving 

methamphetamine, the fact that the controlled substance is 
ATENIA LORENZO V. SESSIONS 19

the crystalline form of methamphetamine” constitutes an 

aggravating circumstance. Cal. Penal Code § 1170.74. 

Charges therefore may include a charge for a crime 

involving methamphetamine with a “special allegation,” for 

sentencing purposes, that the substance is crystal 

methamphetamine. See, e.g., People v. Smith, 2009 WL 

808316, at *1 (Cal. Ct. App. Mar. 30, 2009); People v. 

Lawhorn, 2008 WL 4412284, at *1 (Cal. Ct. App. Sept. 30, 

2008). The enhancement need not be proven for conviction, 

and it is not necessarily alleged in all cases involving crystal 

methamphetamine. See, e.g., People v. Shellock, 2007 WL 

1874329, at *1 (Cal. Ct. App. June 29, 2007) (describing a 

methamphetamine conviction where the substance was 

crystal methamphetamine, but not mentioning the crystal 

methamphetamine enhancement); People v. Belasquez, 

2006 WL 171520, at *1 (Cal. Ct. App. Jan. 25, 2005) (same). 

State courts’ practice in applying the sentencing 

enhancement shows that a conviction for 

“methamphetamine” may in fact be a conviction for a variant 

– in these instances, crystal methamphetamine.

In sum, California law demonstrates that optical and 

geometric isomers of methamphetamine are alternative 

means of committing a single controlled substance offense 

under California law. The government does not argue 

otherwise. The overly broad methamphetamine element, 

therefore, is not divisible. Because the California statute is 

overbroad and not divisible with respect to the overbroad 

element, we do not apply the modified categorical approach 

to determine whether Lorenzo’s convictions involved a type 

of methamphetamine covered by the CSA. As a result, 

Lorenzo’s convictions under §§ 11378 and 11379(a) do not 

qualify as controlled substance offenses under 8 U.S.C. 

§ 1227(a)(2)(B)(i).
20 ATENIA LORENZO V. SESSIONS

Because the IJ and the BIA did not consider whether 

Lorenzo was removable on the ground that his § 11379(a) 

conviction constitutes an “illicit trafficking in a controlled 

substance” aggravated felony under 8 U.S.C. 

§§ 1101(a)(43)(B) and 1227(a)(2)(A)(iii), we do not address 

that question. See Andia v. Ashcroft, 359 F.3d 1181, 1184 

(9th Cir. 2004) (“In reviewing the decision of the BIA, we 

consider only the grounds relied upon by that agency. If we 

conclude that the BIA’s decision cannot be sustained upon 

its reasoning, we must remand to allow the agency to decide 

any issues remaining in the case.”). If the BIA addresses the 

government’s aggravated felony theory on remand, it should 

consider whether that theory suffers from the same flaw as 

the government’s theory of removability under 8 U.S.C. 

§ 1227(a)(2)(B)(i).

PETITION GRANTED; REMANDED.