In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-2416 

JULIO CESAR NAJERA-RODRIGUEZ, 

Petitioner, 

v.

WILLIAM P. BARR, 

Attorney General of the United States, 

Respondent. 

____________________ 

Petition for Review of an Order of the 

Board of Immigration Appeals. 

No. A060-280-595. 

____________________ 

ARGUED APRIL 4, 2019 — DECIDED JUNE 4, 2019 

____________________ 

Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. Petitioner Julio Cesar Najera-Rodriguez is a lawful permanent resident of the United States. 

In 2016, an Illinois state court convicted 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 substance 
2 No. 18-2416 

(as defined 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 purposes of applying the “modified 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 “modified 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 questions under § 1227(a)(2)(B)(i)). 

As we explain below, 720 ILCS 570/402(c) is not divisible, so 

Najera-Rodriguez’s conviction does not render him removable. We therefore grant his petition for judicial review, vacate 

the 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 sentenced to two years of probation, community service, alcohol and drug treatment, educational requirements, and court fines. 

In October 2017, the Department of Homeland Security 

began proceedings to remove Najera-Rodriguez under 8 

U.S.C. § 1227(a)(2)(B)(i). Najera-Rodriguez argued before an 

immigration judge and the Board of Immigration Appeals 
No. 18-2416 3

that his conviction under § 402(c) did not qualify as a conviction under a law “relating to a controlled substance (as defined 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 can 

foreshadow 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 defined in section 

802 of title 21).”1 Xanax (a brand name for alprazolam) is a 

controlled 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) necessarily 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 substance (as defined in section 802 of title 

21), other than a single offense involving 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 Court 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 conviction, 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 substances (e.g., salvinorin A and 

salvia divinorum, 720 ILCS § 204(d)(10.1) & (d)(10.5)) that are 

not included in the five 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 fit the federal immigration trigger in § 1227(a)(2)(B)(i). Applying the categorical 

method, as required under Mellouli, Najera-Rodriguez cannot 

be removed based on his § 402(c) conviction unless the government can apply the “modified categorical approach.” 

B. The Modified Categorical Approach

Illinois’s § 402(c) covers many different 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 “modified categorical approach” can show that 

the state conviction is covered by the federal statute triggering 

the consequences, typically a harsher criminal sentence or, as 

in this case, removal from the United States. 

When a criminal law can be violated in many ways, applying the categorical method requires consideration of whether 

the statute is “divisible,” meaning that it defines distinct 
No. 18-2416 5

crimes with different elements, not just different means for 

committing 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 “modified categorical approach,” which permits a court 

“to consult a limited class of documents, such as indictments 

and jury instructions, to determine which alternative formed 

the basis of the defendant’s conviction.” Descamps v. United 

States, 570 U.S. 254, 257 (2013). The modified 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 identified, the court or the Board compares the elements of the 

specific crime of conviction to the elements the federal statute 

requires to trigger the additional consequences. Id. 

If § 402(c) were divisible, then 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 defined 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 modified categorical approach is appropriate—or whether § 402(c) merely “enumerates various factual 

means of committing a single element”—in which case the inquiry ends. Mathis, 136 S. Ct. at 2249. 

The difference between “elements” and “means” can seem 

slippery, sometimes almost metaphysical, but significant legal consequences flow from that difference. “‘Elements’ are 

the ‘constituent parts’ of a crime’s legal definition—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 a 
6 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 offense “are mere 

real-world things—extraneous to the crime’s legal requirements,” and “need neither be found by a jury nor admitted by 

a defendant.” Id. In addition, the jury cannot convict without 

agreeing unanimously on each element of the crime, while jurors need not reach any agreement on subsidiary facts or 

“means” of committing 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 affect multiplicity challenges because the “Double Jeopardy Clause permits successive punishment or prosecution of multiple offenses arising out of the same conduct only if each offense 

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 burglary 

statute was divisible for purposes of the Armed Career Criminal Act. The Iowa burglary statute was broader than the generic burglary offense for purposes of federal law because it 

covered unlawful entry, with criminal purpose, of locations 

other than buildings. The Supreme Court found that the different locations in the state statute showed only different 

means for committing one crime of burglary, so that the burglary statute was not divisible and thus that the defendant’s 

Iowa 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 also 
No. 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 first a definitive state-court decision. Id. at 2256.

If a decision by the state’s highest court “definitively answers 

the question” of elements versus means, then the federal 

courts can just follow along. Given the consequences of deeming a particular factual finding 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 mail fraud, wire fraud, and bank 

fraud statutes.”); see also Mathis, 136 S. Ct. at 2256 (observing 

that Iowa Supreme Court “definitively answer[ed] the question” by holding that “[t]he listed premises in Iowa’s burglary 

law ... are ‘alternative method[s]’ of committing one offense, 

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 statute’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 different 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] find 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 offer ‘illustrative 
8 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, federal 

judges have another place to look: the record of a prior conviction itself.” Id. This “peek” at the record is permitted “for 

the sole and limited purpose” of determining whether the 

listed items are elements of the offense.” Id. at 2256–57. So, for 

example, if an indictment, jury instructions, and sentencing 

document (or perhaps another charging document, plea 

agreement, and sentencing document) 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 indivisible if the records of conviction 

are not so specific 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 offense to decide 

whether his actual conduct justifies the enhanced sentence or 

removal from the United States. The focus must remain on the 

elements of the crime in question. With this background, we 

turn to the specifics 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 that 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 of 
No. 18-2416 9

conviction for purposes of removability is correct as a matter 

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 different ways to violate 

§ 402(c) reflect different means or different 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 shows clearly that it is divisible—

e.g., by stating plainly that listed alternatives are elements of 

the offense or carry different punishments—we can feel confident in relying on this state-law 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 fine for a violation 

punishable under this subsection (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 specific about controlled substances. 

Subsection 402(a) addresses Class 1 felonies and contains 

close to 30 separate paragraphs. Each paragraph separately 

identifies different substances, specific drug amounts, and the 

corresponding penalties. Here are some representative samples: 

(a) Any person who violates this Section with 

respect to the following controlled or counterfeit substances and amounts ... 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 fined 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 less 

than 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 less 

than 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 more 

of 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 substance 
No. 18-2416 11

containing lysergic acid diethylamide (LSD), or 

an analog thereof. 

720 ILCS 570/402(a). The following subsection, 402(b), specifies fines 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 different penalties for separate paragraphs in § 402(a) 

signal clearly that those are different crimes with different 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 different punishments); United States v. Abbott, 748 F.3d 154, 159 (3d Cir. 2014) 

(controlled substance statute was divisible because each listed 

substance, although listed in a separate statutory section, was 

accompanied by a “prescribed range of penalties,” which rendered the type of drug “an element of the crime”). 

Returning to § 402(c), we find 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 defined 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 (Schedule 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 indication that possession of one 
12 No. 18-2416 

substance versus another would call for a different penalty or 

any other differential treatment. 

Under the language of § 402(c) and its place in the larger 

Illinois act, any “controlled substance” will do, subject to the 

explicit 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 controlled 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 Elder we considered a conviction under an Arizona 

statute 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 offense for 

a later sentencing enhancement. The state statute was categorically broader than the relevant federal drug offense, so it 

could not serve as a predicate offense 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 specific drugs,” and that 

the term “dangerous drug” was defined 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 definition makes its 
No. 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 divisible. The preamble to all of 

720 ILCS 570/402 instructs: “A violation 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 in the preamble therefore does 

not signal that in a prosecution 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 different controlled substances. 

2. State Court Decisions and Pattern Jury Instructions

Without a ruling by the Illinois Supreme Court that is directly on point or statutory text that clearly shows that 

§ 402(c) is divisible, the government relies on other sources of 

state law: a broader look at Illinois case law, including suggestive opinions from the Illinois Supreme Court and Appellate Court, as well as pattern 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). Hagberg focused on whether a field test 

could ever be “sufficient to prove that the substance was a 

controlled substance.” Id. at 1273 (holding: it can be). Although there was a factual allegation that the defendant had 

possessed cocaine, the Illinois Supreme Court’s actual 
14 No. 18-2416 

articulation of the elements of a § 402(c) offense stated: “In a 

controlled substance case, the State must present sufficient evidence that the substance at issue is a controlled substance.” 

Id. at 1273–74. Important for the issue 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 field tests), generally repeat its non-specific 

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 unlawful 

possession 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). Hagberg therefore does not help the government here. To the extent Hagberg

offers any guidance, its use of the general phrase “a controlled 

substance” 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 specific statutory provision to the contrary, and under the 

particular facts of this case, the simultaneous possession of 

multiple firearms and firearm ammunition by defendant constituted a single offense.” The defendant in Carter analogized 

his weapons charges to drug-possession charges in an earlier 
No. 18-2416 15

Illinois case, People v. Manning, 374 N.E.2d 200 (Ill. 1978). 

Carter, 821 N.E.2d at 236. Manning had 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, Carter recounted how the Illinois legislature had responded to the 

Manning reading of § 402(a) by adding 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, Carter adds 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., not 

the 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 offenses to be charged 

based on simultaneous predicate felonies,” the court offered 

as an aside “that the possession of a controlled substance statute permits multiple convictions 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, Carter is not solid authority for such a proposition as to 

§ 402(c), nor did it matter for White because the ability to bring 

separate charges for different substances under § 402(c) had 

no effect on the outcome of the case. The general reference in 

White to “a controlled substance statute” does not touch on 

the critical differences 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 controlled 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 might lead to a 

different 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 decision 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 convictions 

for possession and delivery of controlled substances. The defendant in Black was charged with several counts of possession of controlled substances, but the opinion focused on the 

fact that the defendant was deprived of counsel at his pretrial 

hearing—a “critical stage” of the prosecution—which leads 

us to suspect that not all available legal challenges had been 

made on his behalf. See id. at 960–66. Black does not provide a 

“definitive” 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 issue, which the government urges us 

to interpret as an authoritative statement of § 402(c)’s elements, see, e.g., 

People v. Bartee, 814 N.E.2d 238, 242 (Ill. App. 2004) (referencing cocaine, 

but citing Hagberg when stating § 402(c)’s elements 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”); or 
No. 18-2416 17

Without textual support or a clear decision by the Illinois 

Supreme 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 criminal 

court, 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 that we should consider Illinois’s relevant pattern jury instructions. Those instructions 

are at best ambiguous and, if anything, offer some support for 

Najera-Rodriguez’s position that the identity of the particular 

controlled substance is not an element under § 402(c). There 

are two relevant pattern jury instructions for all offenses 

charged under § 402, including § 402(a), for which the identity and amount of the controlled substance appear to be elements. The government relies on Pattern Jury Instruction 

17.28, which provides alternative instructions on this element, 

both of which indicate a space 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 the 

offense of unlawful possession of a controlled substance, a class 4 felony?”; quoting further from the plea 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 controlled substance.”) (emphasis in original). 
18 No. 18-2416 

controlled or counterfeit substance 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 substance) (a counterfeit substance)].” Section 17 at 51, Illinois Pattern Jury Instructions–

Criminal, Supreme Court Committee on Jury Instructions in 

Criminal Cases. The government does not address, however, 

Pattern Jury Instruction 17.27, which says: “A person commits 

the offense 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 

offenses 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 suffice. 

Neither Illinois court decisions nor the pattern 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 definitively 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 Conviction

Because the most reliable sources of state law do not provide a clear sign of divisibility, we are permitted 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 these 
No. 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 in his 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 not 

show whether the mention of alprazolam/Xanax is an essential element or a factual detail. See Descamps, 570 U.S. at 292 

(Alito, J. dissenting) (“Charging documents must generally 

include factual allegations that go beyond the bare elements 

of the crime—specifically, at least enough detail to permit the 

defendant to mount a defense.”); see also, e.g., Edwards, 836 

F.3d at 837 (noting that charging documents not only “must 

allege every element of the crime charged, but they may also 

(and usually do) include additional facts that need not be 

proved to the jury beyond a reasonable doubt”); Harbin, 860 

F.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” for “unlawful poss. [of a] cont. 

substance” under § 402(c), without specifying the controlled 

substance. Together, the charging and sentencing documents 

in Najera-Rodriguez’s case simply do not show that the identity of the controlled substance was an element of the offense, 

which would be necessary to treat § 402(c) as divisible, so that 

his conviction could support his 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 different statutory violation calling for additional incarceration 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 pleas 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 federal 
No. 18-2416 21

government often urge federal courts to define the elements 

of state criminal offenses in particular ways essential or helpful in the particular case. If federal courts interpret state law 

incorrectly, by finding that state laws include essential elements that state courts have not treated as such, we could mistakenly cast doubt on the much higher volume of state criminal prosecutions under those same state statutes. To reduce 

that 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.