### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-2416 J ULIO C ESAR N AJERA -R ODRIGUEZ , Petitioner,

v.

W ILLIAM P. B ARR, Attorney General of the United States, Respondent

.

____________________

Petition for Review of an Order of the Board of Immigration Appeals. No. A060-280-595.

____________________

A RGUED A PRIL 4, 2019

— D ECIDED J UNE 4, 2019

____________________

Before R IPPLE , H AMILTON , and S T

. E VE , Circuit Judges

. H AMILTON , Circuit Judge . Petitioner Julio Cesar Najera-Rodriguez is a lawful permanent re sident of the United States. In 2016, an Illinois state court co nvicted him of unlawful possession of several Xanax pills without a prescription. Federal law provides in relevant part that any non-citizen, including a lawful permanent resident, is removable if he is convicted of a federal or state crime “relating to a controlled substance2 No. 18-2416

(as de fi ned in section 802 of title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). Whether the Xanax possession conviction made Najera-Rodriguez removable depends on whether the Illinois criminal law under which he was convicted, 720 ILCS 570/402(c), is “divisible” for purp oses of applying the “modifi ed categorical approach” under the elaborate and sometimes technical body of law that has developed under federal recidivism statutes and their immigration law analogs. See, e.g., Mejia Galindo v. Sessions , 897 F.3d 894, 896 (7th Cir. 2018) (summarizing “categorical” and “modi fi ed categorical” approaches and “divisibility” as applied to removal of lawful permanent resident under § 1227(a)(2)(B)(i)), citing Mellouli v. Lynch , 135 S. Ct. 1980, 1986–87 & n.3 (2015) (holding that categorical method applies to qu estions under § 1227(a)(2)(B)(i)). As we explain below, 720 ILCS 570/402(c) is not divisible, soNajera-Rodriguez’s conviction does not render him removable. We therefore grant his petiti on for judicial review, vacatethe removal order, and remand this case to the Board of Immigration Appeals.

I. Facts and Procedural History Julio Cesar Najera-Rodriguez is a thirty-year-old lawful permanent resident. He moved from Mexico to the United States when he was ten years old. In 2016, he pleaded guilty to unlawful possession of a controlled substance in violation of 720 ILCS 570/402(c). He was se ntenced to two years of probation, community service, alcohol and drug treatment, educational requirements, and court fi nes. In October 2017, the Department of Homeland Security began proceedings to remove Najera-Rodriguez under 8 U.S.C. § 1227(a)(2)(B)(i). Naje ra-Rodriguez argued before an immigration judge and the Board of Immigration AppealsNo. 18-2416 3

that his conviction under § 402(c) did not qualify as a conviction under a law “relating to a controlled substance (as defi ned in section 802 of title 21).” Both the immigration judge and the Board ruled against him and ordered him removed from the United States. He petitions for judicial review of this question of law.

II. The Legal Framework Some background is needed even to understand what it means to ask whether Illinois’s § 402(c) is “divisible.” For readers who already understand the concept well, we canforeshadow the answer: § 402(c) uses a list of “controlled substances” that includes several substances that are not controlled substances under 21 U.S.C. § 802. That means it is possible to violate Illinois’s § 402(c) without violating federal law. And state law does not show that § 402(c) is divisible.

A. The Categorical Method The applicable immigration provision, 8 U.S.C. § 1227(a)(2)(B)(i), is triggered by a “conviction” for violating a law “relating to a controlled substance (as de fi ned in section 802 of title 21).” 1 Xanax (a brand name for alprazolam) is acontrolled substance under 21 U.S.C. § 802. Nevertheless, controlling Supreme Court precedent requires us to consider not what Najera-Rodriguez actually did but what his conviction under Illinois’s § 402(c) nece ssarily established vis-à-vis

1 Here is the full text of the provision: “Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substanc e (as defined in section 802 of title 21), other than a single offense invo lving possession for one’s own use of 30 grams or less of marijuana, is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i).4 No. 18-2416

federal law. The Supreme Co urt has held that because § 1227(a)(2)(B)(i) depends on the law the non-citizen was “convicted” of violating, the focus must be on the essential elements of the crime of convic tion, not the non-citizen’s actual conduct leading to the conviction. Melloulli, 135 S. Ct. at 1986. The parties here agree that § 402(c) covers substances that are not controlled substances under federal law. The Illinois statute covers at least some su bstances (e.g., salvinorin A and salvia divinorum, 720 ILCS § 204(d)(10.1) & (d)(10.5)) that are not included in the fi ve federal schedules of controlled substances. See 21 U.S.C. §§ 802(6) & 812. It is therefore possible to violate § 402(c) in ways that do not fi t the federal immigration trigger in § 1227(a)(2)(B)( i). Applying the categorical method, as required under Mellouli , Najera-Rodriguez cannotbe removed based on his § 402(c) conviction unless the government can apply the “modi fi ed categorical approach.”

B. The Modi fi ed Categorical Approach Illinois’s § 402(c) covers many di ff erent controlled substances, and there are thus many ways to violate it. With multiple ways to violate a particular criminal statute, some triggering federal consequences and some not, the categorical approach requires additional analysis. We have to decide whether the “modi fi ed categorical approach” can show that the state conviction is covered by the federal statute triggering the consequences, typically a hars her criminal sentence or, as in this case, removal from the United States.

When a criminal law can be vi olated in many ways, applying the categorical method requires consideration of whether the statute is “divisible,” meaning that it de fi nes distinctNo. 18-2416 5

crimes with di ff erent elements , not just di ff erent means for commi tt ing the same crime. Mathis v. United States , 136 S. Ct. 2243, 2248–49 (2016). If the statute is divisible, a court can turn to the “modi fi ed categorical approach,” which permits a court “to consult a limited class of documents, such as indictments and jury instructions, to dete rmine which alternative formed the basis of the defendant’s conviction.” Descamps v. United States , 570 U.S. 254, 257 (2013). The modi fi ed categorical approach still does not authorize a court or the Board of Immigration Appeals to dig through the facts of the underlying case. Rather, once the elements of conviction have been identi fi ed, the court or the Board compares the elements of the speci fi c crime of conviction to the elements the federal statute requires to trigger the additional consequences. Id. If § 402(c) were divisible, th en we could examine the records of Najera-Rodriguez’s conviction to determine whether he was convicted of a crime “relating to a controlled substance (as de fi ned in section 802 of title 21).” 8 U.S.C. § 1227(a)(2)(B)(i). We must decide then whether § 402(c) lists alternative elements —in which case the statute is divisible and the modi fi ed categorical approach is appropriate—or whether § 402(c) merely “enumerates various factual means of commi tt ing a single element”—in which case the inquiry ends. Mathis , 136 S. Ct. at 2249.

The di ff erence between “elements” and “means” can seem slippery, sometimes almost metaphysical, but signi fi cant legal consequences fl ow from that di ff erence. “‘Elements’ are the ‘constituent parts’ of a crime’s legal de fi nition—the things the ‘prosecution must prove to sustain a conviction.’” Mathis
, 136 S. Ct. at 2248, quoting Black’s Law Dictionary 634 (10th ed. 2014). And just as a prosecutor must prove beyond a6 No. 18-2416

reasonable doubt every element of a crime to a jury, a defendant pleading guilty necessarily admits every element of the crime. Id. By way of contrast, the facts of the o ff ense “are merereal-world things—extraneous to the crime’s legal requirements,” and “need neither be found by a jury nor admi tt ed by a defendant.” Id. In addition, the jury cannot convict withoutagreeing unanimously on each element of the crime, while jurors need not reach any agreement on subsidiary facts or “means” of commi tt ing the crime. United States v. Edwards , 836 F.3d 831, 836 (7th Cir. 2016). This distinction is critical under this body of law for collateral consequences, as well as for other purposes. For example, a crime’s elements a ff ect multiplicity challenges because the “Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the same conduct only if each o ff ense contains a unique element.” Id.

Mathis provides the Supreme Court’s most recent guidance for distinguishing between elements and means, and thus for determining whether a statute is divisible for these purposes. The issue in Mathis was whether the Iowa burglarystatute was divisible for purposes of the Armed Career Criminal Act. The Iowa burglary st atute was broader than the generic burglary o ff ense for purposes of federal law because it covered unlawful entry, with cr iminal purpose, of locations other than buildings. The Supr eme Court found that the different locations in the state statute showed only di ff erent means for commi tt ing one crime of burglary, so that the burglary statute was not divisible and thus that the defendant’sIowa burglary convictions did not qualify for enhanced penalties under the Armed Career Criminal Act. The Court’s opinion noted that its approach to divisibility would alsoNo. 18-2416 7

apply under immigration statutes that depend on criminal convictions. 136 S. Ct. at 2251–52 & n.2. In broad strokes, Mathis directs federal courts (and agencies) to seek fi rst a de fi nitive state-court decision. Id. at 2256. If a decision by the st ate’s highest court “de fi nitively answers the question” of elements vers us means, then the federalcourts can just follow along. Given the consequences of deeming a particular factual fi nding to be an element that requires proof beyond a reasonable doubt and juror unanimity, one could expect a court’s holding regarding a crime’s elements to be stated clearly. See, e.g., Neder v. United States , 527 U.S. 1, 25 (1999) (“Accordingly, we hold that materiality of falsehood is an element of the federal ma il fraud, wire fraud, and bank fraud statutes.”); see also Mathis , 136 S. Ct. at 2256 (observing that Iowa Supreme Court “de fi nitively answer[ed] the question” by holding that “[t]he liste d premises in Iowa’s burglary law ... are ‘alternative method[s]’ of commi tt ing one o ff ense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle”), quoting State v. Duncan , 312 N.W.2d 519, 523 (Iowa 1981). In other easy cases, the statut e’s text may resolve the issue. Mathis , 136 S. Ct. at 2256. A statute is clearly divisible if the statute “itself identif[ies] which things must be charged (and so are elements),” or if its “alternatives carry di ff erent punishments,” which also means “they must be elements.” Id. ; Alleyne v. United States , 570 U.S. 99, 111 (2013) (“any ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime,” and “a jury [must] fi nd those facts beyond a reasonable doubt”), quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 484 (2000). On the other hand, “if a statutory list is drafted to o ff er ‘illustrative8 No. 18-2416

examples,’ then it includes only a crime’s means of commission” and is not divisible. Mathis , 136 S. Ct. at 2256. But “if state law fails to provide clear answers, federaljudges have another place to look: the record of a prior conviction itself.” Id. This “peek” at the record is permi tt ed “for the sole and limited purpose” of determining whether the listed items are elements of the o ff ense.” Id. at 2256–57. So, for example, if an indictment, jury instructions, and sentencing document (or perhaps anothe r charging document, plea agreement, and sentencing docu ment) all “referenc[e] one alternative term to the exclusion of all others,” then one could say “that the statute contains a list of elements, each one of which goes toward a separate crime.” Id. at 2257. On the other hand, a statute may be indivisibl e if the records of conviction are not so speci fi c and simply “use a single umbrella term” to signal what the prosecutor must prove and need not prove. Id. The peek at the record does not, however, authorize a look at the facts of the defendant’s individual o ff ense to decide whether his actual conduct justi fi es the enhanced sentence or removal from the United States. The focus must remain on the elements of the crime in questi on. With this background, we turn to the speci fi cs of Illinois’s § 402(c).

III. Analysis

A. Standard of Review We review only the Board of Immigration Appeals’ decision because it was independent of the immigration judge’s ruling. Lenjinac v. Holder, 780 F.3d 852, 855 (7th Cir. 2015). The issue here is a question of law th at we have jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D ). The sole question is whether the Board’s interpretation of the state statute ofNo. 18-2416 9

conviction for purposes of removability is correct as a ma tt er of law, a question that we review de novo

. Garcia-Martinez v. Barr, 921 F.3d 674, 678 (7th Cir. 2019) (“Legal issues ... receive plenary review in this court.”).

B. Whether § 402(c) is Divisible

To determine whether the di ff erent ways to violate § 402(c) re fl ect di ff erent means or di ff erent elements, we consider the available sources of state law. The Illinois Supreme Court cases cited by the parties did not address this question directly, so the easiest answer under Mathis is not available.We turn next to the statutory text and then to potentially relevant case law and other sources of state law, including pattern jury instructions, to see if they provide authoritative guidance. Finally, we consult Najera-Rodriguez’s conviction records.

1. The Statutory Text

If the text of the statute show s clearly that it is divisible— e.g., by stating plainly that list ed alternatives are elements of the o ff ense or carry di ff erent punishments—we can feel confi dent in relying on this state-la w source when opining on this issue. Mathis , 136 S. Ct. at 2256. We are aided in this task by reading § 402(c) in the context of surrounding provisions. To start, § 402(c) provides in full:Any person who violates this Section with regard to an amount of a controlled substance other than methamphetamine or counterfeit substance not set forth in subsection (a) or (d) is guilty of a Class 4 felony. The fi ne for a violation punishable under this subs ection (c) shall not be more than $25,000.10 No. 18-2416

The text of § 402(c) cannot be understood without considering the entire section, so we turn to subsections (a) and (d), which are considerably more speci fi c about controlled substances. Subsection 402(a) addresses Cl ass 1 felonies and contains close to 30 separate paragraphs. Each paragraph separately identi fi es di ff erent substances, speci fi c drug amounts, and thecorresponding penalties. Here are some representative samples: (a) Any person who violat es this Section withrespect to the following controlled or counterfeit substances and am ounts ... is guilty of a Class 1 felony and shall, if sentenced to a term of imprisonment, be sentenced ... as provided in this subsection (a) and fi ned as provided in subsection (b): (1)(A) not less than 4 years and not more than 15 years with respect to 15 grams or more but lessthan 100 grams of a substance containing heroin; ... (2)(A) not less than 4 years and not more than 15 years with respect to 15 grams or more but lessthan 100 grams of any substance containing cocaine; ... (7)(D) not less than 10 years and not more than 50 years with respect to: (i) 900 grams or moreof any substance containing lysergic acid diethylamide (LSD), or an analog thereof, or (ii) 1500 or more objects or 1500 or more segregated parts of an object or objects containing in them or having upon them any amount of a substanceNo. 18-2416 11

containing lysergic acid diethylamide (LSD), or an analog thereof. 720 ILCS 570/402(a). The followi ng subsection, 402(b), specifi es fi nes for violations of § 402( a) “involving 100 grams or more of the controlled substance named therein.” And like the individual paragraphs in § 402(a) , § 402(d) addresses by name one category of controlled substances: anabolic steroids.

The di ff erent penalties for separate paragraphs in § 402(a) signal clearly that those are di ff erent crimes with di ff erent elements, so those provisions are divisible from other portions of § 402 for purposes of 8 U.S.C. § 1227(a)(2)(B)(i). See Mathis
, 136 S. Ct. at 2256; Edwards , 836 F.3d at 837 (looking to whether statutory alternatives carry the same or di ff erent punishments); United States v. Abbo tt, 748 F.3d 154, 159 (3d Cir. 2014) (controlled substance statute wa s divisible because each listed substance, although listed in a separate statutory section, wasaccompanied by a “prescribed range of penalties,” which rendered the type of drug “an element of the crime”). Returning to § 402(c), we fi nd a broad residual or catch-all crime that speaks generally of “a controlled substance,” one that applies when subsections (a) and (d) do not. The term “controlled substance” is de fi ned in the Illinois act in 720 ILCS 570/102(f), which directs the reader in relevant part to “the Schedules of Article II of this Act,” which in turn are found at 720 ILCS 570/204 (S chedule I), 720 ILCS 570/206 (Schedule II), 720 ILCS 570/208 (Schedule III), 720 ILCS 570/210 (Schedule IV), and 720 ILCS 570/212 (Schedule V). Schedule IV lists alprazolam, the generic term for Xanax, the substance Najera-Rodriguez was charged with possessing without a prescription. Among Schedule IV’s several dozen listed substances, there is no in dication that possession of one12 No. 18-2416

substance versus another would call for a di ff erent penalty or any other di ff erential treatment. Under the language of § 402(c) and its place in the larger Illinois act, any “controlled subs tance” will do, subject to theexplicit exceptions for methamphetamine, counterfeit substances, and anabolic steroids. The text and structure do not show that the identity of the controlled substance is an element under § 402(c). See, e.g., Harbin v. Sessions , 860 F.3d 58, 65 (2d Cir. 2017) (state controlle d substance statute that “incorporates state schedules to clarify which substances are ‘controlled,’” and which “does not suggest that a jury must agree on the particular substance sold,” permits conviction even “[i]f some jurors believed that a defendant had sold cocaine, and others believed that he had sold heroin”). Our analysis in United States v. Elder, 900 F.3d 491 (7th Cir. 2018), regarding the divisibility of a similar statute, is instructive. In Elderwe considered a conviction under an Arizonastatute that prohibited a person from knowingly “possess[ing] equipment or chemicals, or both, for the purpose of manufacturing a dangerous drug.” Id. at 494. The issue was whether that conviction could serve as a predicate o ff ense fora later sentencing enhancement. The state statute was categorically broader than the relevant federal drug o ff ense, so it could not serve as a predicate o ff ense unless the statute were divisible. Id. at 501–02. To decide that, we observed that the statute “criminalize[d] conduct related to ‘dangerous drug[s]’ as a broad category, rather than any speci fi c drugs,” and that the term “dangerous drug” was de fi ned in a separate part of the statute, which listed various substances by category of drug. Id. at 495. We concluded: “The structural separation of the term ‘dangerous drug’ from its de fi nition makes itsNo. 18-2416 13

indivisibility clear,” and although a prosecutor would have to prove the existence of a “dangerous drug” as an element of a conviction, the prosecutor would not have to do so for “the type of dangerous drug.” Id. at 503. The government contends, however, that there is a clear textual signal that § 402(c) is di visible. The preamble to all of 720 ILCS 570/402 instructs: “A vi olation of this Act with respect to each of the controlled substances listed herein constitutes a single and separate violation of this Act.” Only § 402(a) and § 402(d), however, actually have “controlled substances listed herein.” That sentence inthe preamble therefore does not signal that in a prosecut ion under § 402(c), Illinois prosecutors must prove beyond a reasonable doubt the identity of a controlled substance. The text and structure of § 402(c) do not show that it is divisible among di ff erent controlled substances.

2. State Court Decisions and Pa tt ern Jury Instructions Without a ruling by the Illinoi s Supreme Court that is directly on point or statutory text that clearly shows that § 402(c) is divisible, the govern ment relies on other sources ofstate law: a broader look at Illinois case law, including suggestive opinions from the Illi nois Supreme Court and Appellate Court, as well as pa tt ern jury instructions.The Illinois Supreme Court case that comes closest to addressing the elements of § 402(c) is People v. Hagberg, 733 N.E.2d 1271 (Ill. 2000). Hagbergfocused on whether a fi eld test could ever be “su ffi cient to prove that the substance was a controlled substance.” Id. at 1273 (holding: it can be). Although there was a factual alle gation that the defendant had possessed cocaine, the Illinois Supreme Court’s actual14 No. 18-2416

articulation of the elements of a § 402(c) o ff ense stated: “In a controlled substance case, the State must present su ffi cient evidence that the substance at issue is a controlled substance.” Id. at 1273–74. Important for the i ssue we face here, the state court did not refer to the identity of the particular controlled substance as an element.

The few cases that cite Hagberg for its statement of § 402(c)’s elements (rather than its ruling on the reliability and admissibility of fi eld tests), generally repeat its non-speci fi c language. See, e.g., People v. Woods , 828 N.E.2d 247, 254 (Ill. 2005) (citing Hagberg : “It is axiomatic that the State must prove that the material recovered from the defendant and which forms the basis of the charge is, in fact, a controlled substance.”); People v. Adair, 940 N.E.2d 292, 297 (Ill. App. 2010) (citing Hagberg : “To convict on the charge of unlawfulpossession of a controlled substance, the State must prove beyond a reasonable doubt that the substance recovered contains a controlled substance.”), abrogated on other grounds by People v. Marshall , 950 N.E.2d 668 (Ill. 2011). Hagbergtherefore does not help the government here. To the extent Hagberg

o ff ers any guidance, its use of the general phrase “a controlledsubstance” signals that the identity of the controlled substance is not an element under § 402(c). The government also cites an Illinois Supreme Court case concerning a felon’s possession of a weapon, People v. Carter
, 821 N.E.2d 233, 235 (Ill. 2004), which held: “in the absence of a speci fi c statutory provision to the contrary, and under the particular facts of this case, the simultaneous possession of multiple fi rearms and fi rearm ammunition by defendant constituted a single o ff ense.” The defendant in Carteranalogized his weapons charges to drug-po ssession charges in an earlierNo. 18-2416 15

Illinois case, People v. Manning, 374 N.E.2d 200 (Ill. 1978). Carter, 821 N.E.2d at 236. Manninghad applied the rule of lenity to charges of possession of controlled substances under § 402(a), not the provision under which Najera-Rodriguez was convicted. Manning, 374 N.E. 2d at 201. In dicta, Carterrecounted how the Illinois legi slature had responded to the Manning reading of § 402(a) by addi ng the sentence to § 402’s preamble discussed above, which instructs that possession of “each of the controlled substances listed herein constitutes a single and separate violation.” Carter, 821 N.E.2d at 238. In other words, Carteradds nothing independent to the language in the preamble, but weakens the government’s position by pointing out that the statutory amendment was aimed at the Illinois Supreme Court’s reading of § 402(a)—i.e., notthe statutory section under which Najera-Rodriguez was convicted.The government cites several intermediate appellate decisions that also do not address head-on the elements of§ 402(c). For example, in determining “whether the armed violence statute authorizes separate o ff enses to be charged based on simultaneous predicate felonies,” the court o ff eredas an aside “that the possession of a controlled substance statute permits multiple conviction s for the simultaneous possession of multiple substances.” People v. White, 46 N.E.3d 889, 900–01 (Ill. App. 2015), citing Carter, discussed above. As noted, Carteris not solid authority for such a proposition as to § 402(c), nor did it ma tt er for White because the ability to bring separate charges for di ff erent substances under § 402(c) had

no e ff ect on the outcome of the case. The general reference in White to “a controlled substance statute” does not touch on the critical di ff erences between § 402(a), which is clearly divisible, and § 402(c), which is not clearly divisible.16 No. 18-2416

Likewise, in People v. Ortiz , 731 N.E.2d 937, 939 (Ill. App.2000), the court vacated one of the defendant’s two convictions for possession of controlle d substances under § 402(c) as “a violation of the one-act- one-crime rule.” The court acknowledged that the language in the preamble (discussed above) added to § 402 after Ortiz’ s conviction mi ght lead to a di ff erent outcome. Id. at 942. That issue was not before the court, though, so the comment certainly was not a holding on the question, and it was a decisi on of an intermediate court. The same can be said for People v. Black , 953 N.E.2d 958, 960 (Ill. App. 2011), a decision reversing a defendant’s convictionsfor possession and delivery of controlled substances. The defendant in Blackwas charged with several counts of possession of controlled substances, but the opinion focused on the fact that the defendant was depriv ed of counsel at his pretrial hearing—a “critical stage” of the prosecution—which leads us to suspect that not all ava ilable legal challenges had been made on his behalf. See id. at 960–66. Black does not provide a “de fi nitive” statement on § 402(c)’s elements. 2

2 Even further afield, the government cites cases that: (1) Involve convictions not under § 402(c), but under § 402(a), see, e.g., People v. Besz , 802 N.E.2d 841, 844 (Ill. App. 2003); People v. Bui, 885 N.E.2d 506, 511 (Ill. App. 2008), or some other Illinois statute, see, e.g., People v. Glisson , 835 N.E.2d 162, 165 (Ill. App. 2005) (chemical breakdown of illicit controlled substances under 720 ILCS 570/401.5(a-5)); (2) Merely mention the substance at is sue, which the government urges us to interpret as an authoritative statem ent of § 402(c)’s elements, see, e.g., People v. Bartee , 814 N.E.2d 238, 242 (Ill. App. 2004) (referencing cocaine, but citing Hagbergwhen stating § 402(c)’s elem ents in general terms: “The State must prove in a possession of a controlled substance prosecution that the substance at issue is in fact a controlled substance”); orNo. 18-2416 17

Without textual support or a clear decision by the IllinoisSupreme Court treating the identity of the controlled substance as an element of a § 402 (c) charge, hunting through the dicta of state court decisions is a method not supported by Supreme Court precedent. This advocacy-oriented reading of state case law also thwarts the ability of “aliens to anticipate the immigration consequences of guilty pleas in criminalcourt, and to enter ‘safe harbor’ guilty pleas that do not expose the alien defendant to the risk of immigration sanctions.” Mellouli , 135 S. Ct. at 1987 (cleaned up). The government also argues th at we should consider Illinois’s relevant pa tt ern jury instructions. Those instructions are at best ambiguous and, if anything, o ff er some support for Najera-Rodriguez’s position that the identity of the particular controlled substance is not anelement under § 402(c). There are two relevant pa tt ern jury instructions for all o ff ensescharged under § 402, including § 402(a), for which the identity and amount of the controlled substance appear to be elements. The government relies on Pa tt ern Jury Instruction 17.28, which provides alternative instructions on this element, both of which indicate a spac e where the identity of the

(3) Reflect one or more of the above weaknesses and are not precedential, see, e.g., People v. Bramley, 2015 WL 9590308, at *9 (Ill. App. Dec. 30, 2015) (using a general formulation for § 402(c)’s elements: “[t]o commit [a § 402(c)] offense ... defendant had to ‘knowingly’ possess a controlled substance”; quoting from plea colloquy : “do you plead guilty, sir, to theoffense of unlawful possession of a controlled substance, a class 4 felony?”; quoting further from the pl ea colloquy that mentioned the substance at issue, but emphasizing the element of “knowing”: “it is alleged that ... you did knowingly and unlawfully possess less than 15 grams of a substance containing cocaine, a contro lled substance.”) (emphasis in original).18 No. 18-2416

controlled or counterfeit substa nce should be inserted: “That the defendant knowingly possessed a substance containing [(_________, a controlled substance) (a counterfeit substance)] ” or“That the defendant knowingly possessed a substance containing [(__________, a controlled substanc e) (a counterfeit substance)] .” Section 17 at 51, Illinois Pa tt ern Jury Instructions– Criminal, Supreme Court Commi tt ee on Jury Instructions in Criminal Cases. The government does not address, however, Pa tt ern Jury Instruction 17.27, which says: “A person commits the o ff ense of possession of a [(controlled) (counterfeit)] substance when he knowingly possesses a substance containing

a [(controlled) (counterfeit)] substance,” giving no indication that the identity of the substance is necessary. Id. at 49. The most natural reading of the two instructions is that for § 402

o ff enses for which the identity of the substance is a necessary element—e.g., § 402(a) and § 402(d)—use of Instruction 17.28 is appropriate; for the catch-all provision, § 402(c), however, Instruction 17.27 will su ffi ce. Neither Illinois court decisions nor the pa tt ern jury instructions persuade us that the identity of the particular controlled substance is an element for a charge under § 402(c). Mathis directs us to look for a “state court decision that de fi nitively answers the question,” 136 S. Ct. at 2256, not to construct our own patchwork theory of state statutory elements through a pastiche of dicta in cases that do not address the issue directly.

3. Records of ConvictionBecause the most reliable sources of state law do not provide a clear sign of divisibility, we are permi tt ed to look at “the record of a prior conviction itself” to determine whether the state statute is divisible. Mathis , 136 S. Ct. at 2256. For theseNo. 18-2416 19

purposes, such documents must be used with care because charging documents often include factual details that are not elements but provide the particulars of the accusation. 3 Najera-Rodriguez was charged with “UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE, in that [he] knowingly and unlawfully had inhis possession pills containing in them or having upon them a substance containing alprazolam, also known as Xanax, a controlled substance, in violation of 720 ILCS 570/402(c).” This document does notshow whether the mention of alprazolam/Xanax is an essential element or a factual detail. See Descamps , 570 U.S. at 292 (Alito, J. dissenting) (“Charg ing documents must generally include factual allegations that go beyond the bare elements of the crime—speci fi cally, at least enough detail to permit the defendant to mount a defense.”); see also, e.g., Edwards , 836 F.3d at 837 (noting that charg ing documents not only “must allege every element of the cr ime charged, but they may also (and usually do) include additi onal facts that need not be proved to the jury beyond a reasonable doubt”); Harbin , 860F.3d at 66 (explaining that “the values of fair notice and avoidance of double jeopardy often demand that the government specify accusations in ways unrelated to a crime’s elements,” and giving as example the fact that a murder charge will often specify the identity of an alleged victim, which “does not

3 The parties disagree as to whether we can address this source of state law. The Board of Immigration Appeals declined to do so. Whether the Illinois state criminal statute is divisible is a purely legal question, so we may complete the legal analysis set out by Mathis even if the Board did not do so. Lopez v. Lynch , 810 F.3d 484, 488 (7th Cir. 2016) (“Since we review de novo whether an alien was convicted of an aggravated felony, it is irrelevant to our analysis that the BIA’s opinion addressed the issue without definitively ruling on the matter.”).20 No. 18-2416

mean, however, that ‘murder of John Smith’ has a distinct ‘John Smith’ element”).Our reluctance to place too much weight on Najera-Rodriguez’s charging document grows in light of his sentencing document, which states only that the sentence is the result of a “negotiated plea of guilty” fo r “unlawful poss. [of a] cont. substance” under § 402(c), with out specifying the controlled substance. Together, the charg ing and sentencing documents in Najera-Rodriguez’s case simply do not show that the identity of the controlled substance was an element of the o ff ense, which would be necessary to treat § 402(c) as divisible, so that his conviction could support hi s removability under 8 U.S.C. § 1227(a)(2)(B)(i). If Najera-Rodriguez had “known that the Board would consider this statute of conviction categorically” to involve a federal controlled substance, “he may have gone to trial, or he may have pleaded guilty to a di ff erent statutory violation calling for additional incarceratio n but less serious immigration consequences.” Garcia-Martinez v. Barr , 921 F.3d 674, 683 (7th Cir. 2019), citing Mellouli , 135 S. Ct. at 1987 (explaining prevalence of “safe harbor” guilty pl eas that permit defendants to avoid immigration consequences). The state law sources, let alone the record materials, do not “speak plainly,” so we are not “able to satisfy ‘ Taylor’s demand for certainty.’” See Mathis , 136 S. Ct. at 2257, quoting Shepard v. United States , 544 U.S. 13, 21 (2005), citing in turn Taylor v. United States , 495 U.S. 575, 602 (1990) (adopting categorical method for applying Armed Career Criminal Act).Finally, we add a note of caution. In applying this nowextensive body of law concerning collateral federal consequences of state convictions, lawyers for the federalNo. 18-2416 21

government often urge federal courts to de fi ne the elements of state criminal o ff enses in particular ways essential or helpful in the particular case. If federal courts interpret state law incorrectly, by fi nding that state laws include essential elements that state courts have no t treated as such, we could mistakenly cast doubt on the much higher volume of state criminal prosecutions under those same state statutes. To reducethat risk, we need to insist on clear signals—signals that convince us to a certainty that the elements are correct and support divisibility before imposing additional federal consequences for those state convictions. We GRANT the petition for review, VACATE the order of removal, and REMAND this case to the Board of Immigration Appeals for further proceedings consistent with this opinion.