FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE ALEJANDRO VALDIVIAFLORES, AKA Francisco CruzMendoza,

Defendant-Appellant.

No. 15-50384

D.C. No.

3:14-cr-03700-BAS-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted November 10, 2016

Pasadena, California

Filed December 7, 2017

Before: Diarmuid F. O’Scannlain and Johnnie B. 

Rawlinson, Circuit Judges, and Rosemary Marquez,

*

District Judge.

 * The Honorable Rosemary Marquez, United States District Judge 

for the District of Arizona, sitting by designation.
2 UNITED STATES V. VALDIVIA-FLORES

Opinion by Judge O’Scannlain;

Special Concurrence by Judge O’Scannlain;

Dissent by Judge Rawlinson

SUMMARY**

Criminal Law

The panel reversed a criminal judgment, and remanded, 

in a case in which the defendant, who was convicted of 

attempted reentry of a removed alien, contended that his 

2009 removal was invalid because his 1997 drug trafficking 

conviction under Wash. Rev. Code § 69.50.401 was 

incorrectly determined to be an aggravated felony.

The panel held that the defendant’s waiver of the right to 

seek judicial review of the removal order was not considered 

and intelligent, where the Notice of Intent to Issue a Final 

Administrative Removal Order suggested the defendant 

could contest removability only on factual grounds, the 

defendant was not represented, and the defendant never had 

the benefit of appearing before an immigration judge despite 

his request for a hearing.

The panel held that the Washington drug trafficking 

statute is overbroad compared to its federal analogue 

because the former has a more inclusive mens rea 

requirement for accomplice liability. The panel held that 

under a straightforward application of the categorical 

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

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VALDIVIA-FLORES 3

approach, the defendant’s conviction therefore cannot 

support an aggravated felony determination. Because under 

Washington law a jury need not agree on whether a 

defendant is a principal or accomplice, the panel held that 

the Washington drug trafficking statute is not divisible so far 

as the distinction between those roles is concerned. The 

panel held that the modified categorical approach therefore 

may not be applied, and it was error for the district court to 

do so. 

The panel concluded that the defendant was, 

accordingly, prejudiced from his inability to seek judicial 

review for his 2009 removal, and that his collateral attack 

pursuant to 8 U.S.C. § 1326(d) on the underlying deportation 

order should have been successful.

Specially concurring, Judge O’Scannlain wrote 

separately to highlight how the result in this case illustrates 

the bizarre and arbitrary effects of the ever-spreading 

categorical approach for comparing state law offenses to 

federal criminal definitions.

Dissenting, Judge Rawlinson wrote that the majority has 

impermissibly veered away from the statute of conviction to 

find overbreadth based on its analysis of a statute that was 

not part of the prosecution or conviction in this case.
4 UNITED STATES V. VALDIVIA-FLORES

COUNSEL

Ellis M. Johnston III (argued), San Diego, California, for 

Defendant-Appellant.

Helen H. Hong (argued), Assistant United States Attorney; 

Lindsey A. Forrester Archer, Special Assistant United States 

Attorney; Peter Ko, Chief, Appellate Section, Criminal 

Division; United States Attorney’s Office, San Diego, 

California; for Plaintiff-Appellee.

OPINION

O=SCANNLAIN, Circuit Judge:

We must decide whether a conviction for possession of 

a controlled substance with intent to distribute under 

Washington state law is an aggravated felony for purposes 

of federal immigration law.

I

Jose Valdivia-Flores is a Mexican citizen who entered 

the United States without inspection in 1995. In 1997, he 

was charged with and ultimately pled guilty to a violation of 

Washington’s drug trafficking statute, Wash. Rev. Code 

§ 69.50.401. In his Statement of Defendant on Plea of 

Guilty, Valdivia-Flores described the crime he was being 

charged with as: “possession with intent to deliver—

Heroin.” He also wrote out the elements of the crime: 

“Possess a controlled substance (heroin) with intent to 

distribute it in King County and know it was a narcotic 

drug.” Finally, stating what made him guilty of Wash. Rev. 

Code § 69.50.401 in his own words, Valdivia-Flores wrote: 

“On June 20, 1997 in King County WA I did unlawfully 
UNITED STATES V. VALDIVIA-FLORES 5

possess with intent to deliver Heroin a controlled substance 

and did know it was a controlled substance.” ValdiviaFlores was sentenced to 21 months’ imprisonment, which he 

served at an accelerated pace over seven months at a work 

ethic camp.

While he was in the camp, immigration officers prepared 

a Notice to Appear which charged Valdivia-Flores with 

being removable. In an order dated January 28, 1998, an 

immigration judge suspended the immigration proceedings 

because Valdivia-Flores was still serving his sentence at the 

camp and therefore could not be produced for a hearing. 

Nonetheless, at the conclusion of his sentence in April 1998, 

immigration officers physically removed Valdivia-Flores to 

Mexico without an order. Valdivia-Flores returned to the 

State of Washington that same year, again without 

inspection at the border.

In 2009, Valdivia-Flores was convicted of malicious 

mischief in the third degree in violation of Wash. Rev. Code 

§ 9A.48.090 for smashing the windshield of his wife’s 

vehicle after an argument. He pled guilty, and his sentence 

was suspended. At the time of that prosecution, the 

Department of Homeland Security initiated administrative 

removal proceedings pursuant to 8 U.S.C. § 1228(b). In 

March 2009, he received two copies of a form, one in 

English and one in Spanish, titled Notice of Rights and 

Request for Disposition. This notice informed ValdiviaFlores that he had “the right to a hearing before the 

Immigration Court to determine whether [he] may remain in 

the United States.” Valdivia-Flores filled out and signed the 

Spanish version of the form, electing to request a hearing 

before the Immigration Court.

Also in March 2009, the Department of Homeland 

Security issued Valdivia-Flores a Notice of Intent to Issue a 
6 UNITED STATES V. VALDIVIA-FLORES

Final Administrative Removal Order (“Notice of Intent”). It 

stated that Valdivia-Flores’s 1997 conviction under Wash. 

Rev. Code § 69.50.401(a) was for an aggravated felony so 

that he was removable without a hearing before an 

immigration judge. The Notice of Intent informed ValdiviaFlores of his right to petition for review of his removal in the 

appropriate U.S. Circuit Court of Appeals. It also provided 

three check-boxes of options by which Valdivia-Flores 

could “contest [his] deportability”: (1) he could assert that 

he was “a citizen or national of the United States”; (2) he 

could assert that he was “a lawful permanent resident”; and 

(3) he could claim that he was “not convicted of the criminal 

offense described” in the Notice of Intent. Valdivia-Flores 

did not contest his removal or request withholding of

removal and instead checked a box acknowledging that he 

had “the right to remain in the United States for 14 calendar 

days in order to apply for judicial review” and that he 

“waive[d] this right.” He did not petition for review of the 

removal decision and was removed on April 4, 2009. He 

remained in Mexico for a few days and then unlawfully 

reentered the United States for a third time.

On August 13, 2013, Valdivia-Flores was arrested in 

Washington for being an illegal alien found in the United 

States, in violation of 8 U.S.C. § 1326. He pled guilty and 

was convicted in the Western District of Washington in 

September 2013. Immigration authorities once again 

initiated removal proceedings. Valdivia-Flores requested 

asylum and sought a stay of removal “for humanitarian 

reasons,” but those requests were denied, and ValdiviaFlores was removed in September 2014.

On November 13, 2014, Valdivia-Flores attempted to 

return (for a fourth time) to the United States, applying for 

entry through the pedestrian lanes at the San Ysidiro, 
UNITED STATES V. VALDIVIA-FLORES 7

California port of entry. Valdivia-Flores falsely identified 

himself as another person and presented a false and 

fraudulent United States Certification of Naturalization. He 

was charged with one count of attempted reentry of a 

removed alien in violation of 8 U.S.C. § 1326 and one count 

of fraudulent use of an immigration document in violation of 

18 U.S.C. § 1546.

Prior to trial, Valdivia-Flores brought a collateral attack 

against the validity of his 2009 order of removal and moved 

to dismiss the attempted reentry count of the indictment. 

The district court denied the motion to dismiss because 

Valdivia-Flores “did in fact admit in his plea agreement to 

committing a drug trafficking offense, which is an 

aggravated felony.”

The parties then entered into a stipulation in which 

Valdivia-Flores agreed to facts satisfying all the elements of 

both counts in the indictment. Based on those stipulated 

facts, following a bench trial the district court found 

Valdivia-Flores guilty of both charges and sentenced him to 

21 months’ imprisonment on both counts, running 

concurrently.

Valdivia-Flores filed this timely appeal and seeks to 

challenge collaterally the classification of his underlying 

Washington state conviction as an aggravated felony.1

 1 “We review the district court’s denial of a motion to dismiss an 

indictment brought pursuant to 8 U.S.C. § 1326(d) de novo.” United 

States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015) (citation 

omitted). Whether a crime constituted an aggravated felony is a question 

of law reviewed de novo. See Wang v. Rodriguez, 830 F.3d 958, 960 

(9th Cir. 2016).
8 UNITED STATES V. VALDIVIA-FLORES

II

Valdivia-Flores contends that because his 1997 

conviction was incorrectly determined to be an aggravated 

felony, his 2009 removal was invalid. If the 2009 removal 

was invalid, that “precludes reliance on th[at] deportation” 

in the subsequent illegal reentry prosecution. United States 

v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010). ValdiviaFlores’s collateral attack is governed by 8 U.S.C. § 1326(d), 

which allows such an attack to succeed if Valdivia-Flores 

can demonstrate that (1) he exhausted the administrative 

remedies available for seeking relief from the predicate 

removal order; (2) the removal proceedings improperly 

deprived him of the opportunity for judicial review; and 

(3) the removal order was fundamentally unfair. 8 U.S.C. 

§ 1326(d). The first two prongs of § 1326(d) are satisfied if 

his right to appeal was denied in violation of due process. 

United States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014).

Valdivia-Flores contends that his due process rights were 

indeed violated because “immigration officials failed to 

obtain a knowing waiver of” his right to appeal the removal 

order. Gomez, 757 F.3d at 893. “In order for [a] waiver to 

be valid . . . it must be both considered and intelligent.” 

United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) 

(internal quotation marks omitted). The government 

contends that Valdivia-Flores did validly waive his right to 

appeal by signing the Notice of Intent, by failing to appeal, 

and by freely choosing instead to return to this country 

unlawfully.

Because Valdivia-Flores asserts that his waiver was not 

considered and intelligent, the government must show by 

clear and convincing evidence that the waiver was valid, 

Ramos, 623 F.3d at 681, and it may not simply rely on the 

signed document purportedly agreeing to the waiver, Gomez, 
UNITED STATES V. VALDIVIA-FLORES 9

757 F.3d at 895. Because we cannot rely on the contested 

waiver document itself, we evaluate the surrounding 

circumstances to determine whether the government can 

overcome the presumption against waiver. See CisnerosRodriguez, 813 F.3d at 756.

Here, although the Notice of Intent described the 

window in which Valdivia-Flores could respond to the 

charges against him or file a petition for judicial review, it 

did not explicitly inform him that he could refute, through 

either an administrative or judicial procedure, the legal 

conclusion underlying his removability. In fact, the Notice 

of Intent’s three check boxes suggested just the opposite—

that removability could only be contested on factual 

grounds. The list of options available to “check off” did not 

include an option to contest the classification of the 

conviction as an aggravated felony, and the only check box 

relevant to the conviction itself only allowed Valdivia-Flores 

to contest that he “was not convicted of the criminal offense 

described.”

The form’s deficiencies are magnified because ValdiviaFlores “was not represented and never had the benefit of 

appearing before an [immigration judge], who, we presume, 

would have adequately conveyed both [his] appeal options 

and the finality associated with waiving appeal.” Ramos, 

623 F.3d at 681 (internal quotation marks omitted). Indeed, 

the Notice of Intent was issued without a hearing before an 

immigration judge despite Valdivia-Flores’s request for a 

hearing. The government provides no evidence that an 

immigration officer ever met with Valdivia-Flores to explain 

the form or the issues it raised; rather, the government 

merely relies on the sufficiency of the form’s text to 

communicate Valdivia-Flores’s options.
10 UNITED STATES V. VALDIVIA-FLORES

Under these circumstances, we conclude that ValdiviaFlores’s waiver of the right to seek judicial review was not 

considered and intelligent. Accord Gomez, 757 F.3d at 896 

(explaining that the fact that an alien signed a waiver was 

insufficient to meet the government’s burden to establish a 

valid waiver when the record reflected deficiencies in the 

advisements given). Therefore, he was deprived of due 

process and satisfies the first two prongs of 8 U.S.C. 

§ 1326(d).

III

A

With a due process violation established, the next step in 

Valdivia-Flores’s argument is that the 2009 removal order 

“was fundamentally unfair,” so he satisfies the final prong of 

8 U.S.C. § 1326(d) to succeed in his collateral attack. He 

must “show that it was ‘plausible’ that he would have 

received some form of relief from removal had his rights not 

been violated in the removal proceedings.” Gomez, 757 F.3d 

at 898 (quoting Arrieta, 224 F.3d at 1079). To meet that 

burden, Valdivia-Flores argues that, had he sought judicial 

review of the order, he would have prevailed in showing that 

he was not convicted of an aggravated felony as alleged in 

the Notice of Intent as the sole basis for his removal without 

a hearing before an immigration judge. The government 

disagrees and argues that Valdivia-Flores’s drug trafficking 

conviction was properly classified as an aggravated felony. 

We must therefore determine whether Valdivia-Flores’s 

1997 conviction under Wash. Rev. Code § 69.50.401 was for 

an aggravated felony.

To determine whether an offense qualifies as an 

“aggravated felony,” we apply the categorical approach 

articulated in Taylor v. United States, 495 U.S. 575 (1990). 
UNITED STATES V. VALDIVIA-FLORES 11

Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014). 

Under the categorical approach, “we look not to the facts of 

the particular prior case, but instead to whether the state 

statute defining the crime of conviction categorically fits 

within the generic federal definition of a corresponding 

aggravated felony.” Roman-Suaste v. Holder, 766 F.3d 

1035, 1038 (9th Cir. 2014) (citation and internal quotation 

marks omitted).

To make his argument that the Washington drugtrafficking law is broader than its federal analogue, ValdiviaFlores observes that, under both the federal and state 

criminal laws, a person charged with a drug trafficking 

offense may be convicted either as a principal or for aiding 

and abetting. Critically, he says, Washington defines aiding 

and abetting more broadly than does federal law so that 

Washington forbids more conduct.

The implicit nature of aiding and abetting liability in

every criminal charge is sufficiently well-settled that the 

government in this case does not contest it. See Gonzales v. 

Duenas-Alvarez, 549 U.S. 183, 189 (2007) (In the United 

States, “every jurisdiction—all States and the Federal 

Government—has expressly abrogated the distinction 

among principals and aiders and abettors.”). Instead, the 

government contends that Washington’s definition of aiding 

and abetting liability is essentially the same as the federal 

definition so that they do, in fact, match categorically.

At the time of Valdivia-Flores’s conviction, 

Washington’s aiding and abetting statute stated: “A person 

is an accomplice . . . in the commission of a crime if . . .

[w]ith knowledge that it will promote or facilitate the 

commission of the crime, he . . . solicits, commands, 

encourages, or requests such other person to commit it; or 

aids or agrees to aid such other person in planning or 
12 UNITED STATES V. VALDIVIA-FLORES

committing it.” Wash. Rev. Code § 9A.08.020(3)(a)(i)–(ii) 

(1997) (emphasis added). In contrast, under federal law, “to 

prove liability as an aider and abettor the government must 

establish beyond a reasonable doubt that the accused had the 

specific intent to facilitate the commission of a crime by 

someone else.” United States v. Garcia, 400 F.3d 816, 819 

(9th Cir. 2005) (emphasis added). Therefore, federal law 

requires a mens rea of specific intent for conviction for 

aiding and abetting, whereas Washington requires merely 

knowledge.

Consistent with the Model Penal Code on which it is 

based, Washington’s criminal law expressly codifies the 

distinction between intent and knowledge and makes plain 

that knowledge is a less demanding mens rea requirement. 

“A person acts with intent or intentionally when he acts with 

the objective or purpose to accomplish a result which 

constitutes a crime.” Wash. Rev. Code § 9A.08.010(1)(a) 

(1997) (emphasis added). In contrast, “[a] person knows or 

acts knowingly or with knowledge when . . . (i) he is aware 

of a fact, facts, or circumstances or result described by a 

statute defining an offense; or (ii) he has information which 

would lead a reasonable man in the same situation to believe 

that facts exist which facts are described by a statute defining 

an offense.” Id. § 9A.08.010(1)(b) (emphasis added).

The same distinction exists in federal law. There, “a 

person who causes a particular result is said to act 

purposefully”—or with specific intent—“if he consciously 

desires that result . . . while he is said to act knowingly if he 

is aware that that result is practically certain to follow from 

his conduct, whatever his desire may be as to that result.” 

United States v. Bailey, 444 U.S. 394, 404 (1980) (internal 

quotation marks omitted); see also Abagninin v. AMVAC 

Chem. Corp., 545 F.3d 733, 739 (9th Cir. 2008) 
UNITED STATES V. VALDIVIA-FLORES 13

(distinguishing specific intent from “mere knowledge, or 

general intent”).

Therefore, the Washington drug trafficking law on its 

face appears to have a more inclusive mens rea requirement 

for accomplice liability than its federal analogue. The 

Washington Supreme Court’s case law indicates that the 

distinction between intent and knowledge is meaningful.2 

See State v. Thomas, 208 P.3d 1107, 1111 (Wash. 2009) 

(“To convict an accomplice of premeditated murder in the 

first degree, the State need not show that the accomplice had 

the intent that the victim would be killed. The prosecution 

need only prove that the defendant knew his actions would 

facilitate the crime . . . .”); State v. Roberts, 14 P.3d 713, 

731–32 (Wash. 2000) (“The accomplice liability statute 

requires only a mens rea of knowledge . . . . [A]n 

accomplice, like a felony murder defendant, may be 

convicted with a lesser mens rea and a lesser actus reus than 

a principal to premeditated first degree murder.”); State v. 

Gocken, 896 P.2d 1267, 1273–74 (Wash. 1995) (“Criminal 

conspiracy requires an element of intent, while accomplice 

liability requires a lesser culpable state of knowledge.”).

B

The government’s principal response to this statutory 

language and case law is to cite contrary Washington case 

law that suggests accomplice liability turns on a mens rea

standard closer to intent than knowledge. E.g., In re Welfare 

of Wilson, 588 P.2d 1161, 1164 (Wash. 1979) (“[I]t is the 

encouragement plus the intent of the bystander to encourage 

 2 State statutes and the state court decisions interpreting them are 

both “authoritative sources of state law.” Mathis v. United States, 136 S. 

Ct. 2243, 2256 (2016).
14 UNITED STATES V. VALDIVIA-FLORES

that constitutes abetting.”); State v. Truong, 277 P.3d 74, 79–

80 (Wash. Ct. App. 2012) (“[T]he State must prove that the 

defendant . . . shared in the criminal intent of the principal, 

thus demonstrating a community of unlawful purpose at the 

time the act was committed.” (internal quotation marks 

omitted)). The Washington Supreme Court cases the 

government cites, however, significantly predate the abovequoted authoritative interpretations by that court, and in 

some cases they even predate the 1976 enactment of 

Washington’s modern accomplice liability statute. The 

more recent state intermediate appellate court cases are also 

less authoritative than the clear statements of Washington’s 

highest court. We are satisfied that the government’s cited 

case law is less authoritative than the more recent 

Washington Supreme Court cases that indicate a clear 

distinction between the mental states of intent and 

knowledge.

In the face of the clear statutory language and the most 

authoritative state case law, the government argues as a 

fallback that—even if there is a formal distinction between 

the state and federal mens rea requirements—in practice, 

Washington’s law does not “extend significantly beyond” its 

federal analogue for purposes of categorical comparison. 

Duenas-Alvarez, 549 U.S. at 193. Whatever the 

metaphysical merit of the government’s attack on the 

distinction between intent and knowledge, we have held that, 

“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 

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

outside the generic definition of the crime.” United States v. 

Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (quoting DuenasAlvarez, 549 U.S. at 193). Because the difference in breadth 
UNITED STATES V. VALDIVIA-FLORES 15

is apparent on the face of the statute, we must conclude that 

Washington’s statute is broader than its federal analogue.

Finally, the government makes a pragmatic argument 

that, under Valdivia-Flores’s proposed application of the 

categorical approach, “no Washington state conviction can 

serve as an aggravated felony at all because of [the] 

accomplice liability statute” and that such a result “cannot 

have been Congress’s intent.” The government here merely 

joins a chorus of those who “have raised concerns about [the] 

line of decisions” applying the categorical approach, “[b]ut 

whether for good or for ill, the elements-based approach 

remains the law.” Mathis v. United States, 136 S. Ct. 2243, 

2257 (2016). Indeed, Justice Kennedy wrote separately in 

Mathis to note specifically that Congress “could not have 

intended vast . . . disparities for defendants convicted of 

identical criminal conduct in different jurisdictions”; but he 

concurred in the opinion that held that the categorical 

approach required just that result. Id. at 2258 (Kennedy, J., 

concurring). As an inferior court, we must follow suit.

Under a straightforward application of the categorical 

approach, Washington’s drug trafficking statute is overbroad 

compared to its federal analogue, and Valdivia-Flores’s 

conviction cannot support an aggravated felony 

determination.3

 3 Our dissenting colleague rejects potential differences between 

Washington and federal aiding and abetting liability on the ground that 

we should look no further than the state statute defining the principal 

offense of drug trafficking, which does match its federal analogue. But 

as the dissent points out, “conviction of aiding and abetting is tantamount 

to conviction of the underlying offense.” It is for just that reason that, 

under the categorical approach, “the criminal activities of . . . aiders and 

abettors of a generic” offense “must themselves fall within the scope of 
16 UNITED STATES V. VALDIVIA-FLORES

C

The district court’s ruling, however, was based on a 

somewhat alternative analysis: applying the modified

categorical approach, which permits a court to look at the 

documents of conviction. Using those, the district court 

determined that Valdivia-Flores was, in fact, convicted as a 

principal rather than an accomplice and so fell within the 

federal generic drug trafficking prohibition.

It is only “[i]n a narrow range of cases,” however, “when 

the statute at issue is divisible,” that a court “may employ” 

the modified categorical approach to look at the underlying 

documents of conviction.4 Ramirez v. Lynch, 810 F.3d 1127, 

1131 (9th Cir. 2016). Where a “statutory phrase . . . refers 

 

the [analogue] federal statute.” Duenas-Alvarez, 549 U.S. at 190. The 

test under Taylor is straightforward in this context: “[i]f the state statute 

criminalizes conduct that would not constitute a drug trafficking offense 

under federal . . . law, then a prior conviction under that statute does not 

categorically qualify” as an aggravated felony. United States v. 

Valdavinos-Torres, 704 F.3d 679, 691 (9th Cir. 2012) (internal quotation 

marks omitted). Because the Washington statute does criminalize 

conduct that would not constitute a drug offense under federal law—due 

to the distinct aiding and abetting definitions—it is overbroad. That we 

have rejected an overbreadth challenge to this Washington statute before 

is irrelevant because such challenge was based on an argument unrelated 

to the overbreadth of the aiding and abetting component of the statute. 

See United States v. Burgos-Ortega, 777 F.3d 1047, 1052 (9th Cir. 2015) 

(considering an overbreadth challenge because the Washington statute 

did not include same exemption for “administering” a drug as its federal 

analogue).

4 The dissent argues “that documents in the record relevant to 

Valdivia-Flores’ conviction leave little doubt that he was convicted as a 

principal and not as an accomplice.” We may not consider such 

documents, of course, if the statute is not divisible.
UNITED STATES V. VALDIVIA-FLORES 17

to multiple, alternative means of commission” of the crime, 

it must “be regarded as indivisible if the jurors need not agree 

on which method of committing the offense the defendant 

used.” Rendon, 764 F.3d at 1085.

Washington law is clear that jurors need not agree on 

whether a defendant is a principal or accomplice. See State 

v. Hoffman, 804 P.2d 577, 605 (Wash. 1991) (“[I]t is not 

necessary that jurors be unanimous as to the manner of an 

accomplice’s and a principal’s participation as long as all 

agree that they did participate in the crime.”). Because a jury 

need not distinguish between principals and accomplices, the 

drug trafficking statute is not divisible so far as the 

distinction between those roles is concerned, so the modified 

categorical approach may not be applied, and it was error for 

the district court to do so.5

IV

Because Valdivia-Flores’s drug trafficking conviction 

does not qualify as an aggravated felony under the 

categorical approach, it cannot support the asserted basis for 

Valdivia-Flores’s 2009 removal. Valdivia-Flores was 

therefore prejudiced from his inability to seek judicial 

review for that removal. He thus satisfies all three elements 

of 8 U.S.C. § 1326(d), and his collateral attack on the 

underlying deportation order should have been successful.

The judgment of the district court is therefore 

REVERSED and the case REMANDED for further 

proceedings consistent with this opinion.

 5 That conclusion comports with our prior holding regarding federal 

aiding and abetting liability outside of the immigration context, where 

we have held that “[a]iding and abetting . . . is simply one means of 

committing a . . . crime.” Garcia, 400 F.3d at 820.
18 UNITED STATES V. VALDIVIA-FLORES

O’SCANNLAIN, Circuit Judge, specially concurring.

Although the result in this case is dictated by the case 

law of the Supreme Court and our Circuit, I write separately 

to highlight how it illustrates the bizarre and arbitrary effects 

of the ever-spreading categorical approach for comparing 

state law offenses to federal criminal definitions. I am 

hardly the first federal circuit judge to express puzzlement at 

how the categorical approach has come to be applied. See, 

e.g., United States v. Doctor, 842 F.3d 306, 312 (4th Cir. 

2016) (Wilkinson, J., concurring); United States v. Faust, 

853 F.3d 39, 60 (1st Cir. 2017) (Lynch, J., concurring); 

United States v. Chapman, 866 F.3d 129, 136 (3d Cir. 2017) 

(Jordan, J., concurring). That criticism arises largely in 

relation to the Armed Career Criminal Act (“ACCA”), 

18 U.S.C. § 924(e)—in which context the categorical 

approach was created to apply sentencing enhancements 

based on prior state convictions—but the case before us 

illustrates the much broader reach of its peculiar 

consequences.

Almost three decades ago, in Taylor v. United States, 

495 U.S. 575 (1990), the Supreme Court developed the 

categorical approach in the context of ACCA, which 

imposes heightened mandatory minimums for serious repeat 

offenders. See 18 U.S.C. § 924(e). Two decades later, it had 

become clear that the same approach applied to determine 

what state crimes fell within certain categories enumerated 

in the Immigration and Nationality Act, 8 U.S.C. § 1101 et 

seq. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 

(2007). Several justices of the Supreme Court have 

expressed concern about the “arbitrary and inequitable 

results produced by applying” the categorical approach to 

the ACCA sentencing scheme. Mathis v. United States, 

136 S. Ct. 2243, 2258 (2016) (Kennedy, J., concurring) 
UNITED STATES V. VALDIVIA-FLORES 19

(noting similar criticisms raised in dissent by Justices 

Ginsburg, Breyer, and Alito). The results can be even more 

arbitrary in other contexts, including the case before us 

involving a collateral attack on a removal order.

As Judge Wilkinson observed in his criticism of the 

present state of the categorical approach, when it comes to 

ACCA and sentencing, a district court “has various tools to 

impose a stricter sentence if it believes that the categorical 

approach is ignoring a violent criminal history or disserving 

the general aims of sentencing.” Doctor, 842 F.3d at 317 

(Wilkinson, J., concurring). Under the advisory sentencing 

guidelines, a district court can depart outside the guidelines 

to correct for a particularly unjust or absurd application of 

the categorical approach.

In the context of the case before us, however, there is no 

way to remedy an especially absurd result of applying the 

categorical approach. When a removal premised on a prior 

state conviction for an aggravated felony is collaterally 

attacked years later, a court’s only role once reaching the 

merits is to apply the categorical approach and to determine 

if the state statute of conviction was a categorical match with 

its federal analogue. As today’s decision makes clear, if the 

challenger is clever enough to find some space in the state 

statutory scheme that lies outside the federal analogue, he 

can effectively void that prior removal for purposes of his 

present illegal reentry prosecution—even though the 

challenger admits that the actual conduct underlying his state 

conviction falls at the heart of the federal analogue. There is 

no discretion to be exercised.

Congress made clear its desire to remove aliens who 

have committed “aggravated felonies,” which it expressly 

defined to include any “drug trafficking crime,” 8 U.S.C. 

§ 1101(a)(43)(B), meaning “any felony punishable under the 
20 UNITED STATES V. VALDIVIA-FLORES

Controlled Substances Act,” 18 U.S.C. § 924. Nobody 

contests that Valdivia-Flores possessed heroin with intent to 

deliver it, nor that such conduct is indeed a felony punishable 

under the Controlled Substances Act. There is no reason to 

doubt, then, that Valdivia-Flores actually did commit an 

aggravated felony. Because of the judicially-created 

categorical approach and a quirk in the drafting of 

Washington’s statutory scheme, however, he escapes the 

consequences that Congress intended for such conduct.

Whatever the merits of the Supreme Court’s rationale for 

imposing the categorical approach on sentencing under 

ACCA, where judges have discretion to correct for 

particularly arbitrary and unjust results, the effect is far more 

pernicious in cases such as this one where there is no chance 

for correction. Shouldn’t it be possible to have a more 

“practical reading” of the Immigration and Nationality Act 

so that, “[w]hen it is clear that a defendant necessarily 

admitted or the jury necessarily found that the defendant 

committed the elements of [the generic federal crime], the 

conviction should qualify” for purposes of classifying it as 

an aggravated felony? Descamps v. United States, 133 S. Ct. 

2276, 2295 (2013) (Alito, J., dissenting). If the Supreme 

Court is unwilling to revisit the categorical approach for 

cases such as this one, Congress should consider clarifying 

whether it truly intended radically different treatment for 

aliens “convicted of identical criminal conduct in different 

jurisdictions.” Mathis, 136 S. Ct. at 2258 (Kennedy, J., 

concurring).
UNITED STATES V. VALDIVIA-FLORES 21

RAWLINSON, Circuit Judge, dissenting:

Jose Valdivia-Flores was convicted of possession with 

intent to deliver a controlled substance in violation of Wash. 

Rev. Code § 69.50.401. The majority describes our task as 

“determin[ing] whether Valdivia-Flores’ conviction under 

Wash. Rev. Code § 69.50.401 was for an aggravated 

felony.” Majority Opinion, p. 10. Yet, inexplicably, the 

majority completely fails to address that statute.

In determining whether Valdivia-Flores was convicted 

of an aggraved felony, we compare the state statute of 

conviction to the generic federal definition of possession 

with intent to deliver a controlled substance. See RomanSuaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014). The 

Immigration and Nationality Act (INA) defines the term 

“aggravated felony” to include “illicit trafficking in a 

controlled substance (as defined in section 802 of Title 21), 

including a drug trafficking crime (as defined in section 

924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B); see also 

Roman-Suaste, 766 F.3d at 1038. The phrase “drug 

trafficking crime” supplies the generic federal description of 

possession of a controlled substance with intent to deliver, 

defined in pertinent part as “any felony punishable under the 

Controlled Substances Act (21 U.S.C. 801 et seq.).” 

18 U.S.C. § 924(c)(2); see also Roman-Suaste, 766 F.3d at 

1038. A “felony” includes an offense for which the 

maximum term of imprisonment is “more than one year.” 

18 U.S.C. § 3559(a)(5); see also Roman-Suaste, 766 F.3d at 

1038. Ultimately, “under the plain language of these 

provisions, a conviction qualifies as an aggravated felony 

when it is for an offense that the Controlled Substances Act 

(CSA) makes punishable by more than one year’s 

imprisonment.” United States v. Gonzalez-Corn, 807 F.3d 
22 UNITED STATES V. VALDIVIA-FLORES

989, 993 (9th Cir. 2015) (citations and internal quotation 

marks omitted).

The pertinent CSA provision in this case, provides: 

“Except as authorized by this subchapter, it shall be unlawful 

for any person knowingly or intentionally . . . to 

manufacture, distribute, or dispense, or possess with intent 

to manufacture, distribute, or dispense, a controlled 

substance.” 21 U.S.C. § 841(a)(1). The Washington statute 

underlying Valdivia-Flores’ 1997 conviction, stated in 

pertinent part: “Except as authorized by this chapter, it is 

unlawful for any person to manufacture, deliver, or possess 

with intent to manufacture or deliver, a controlled 

substance.” Wash. Rev. Code § 69.50.401(a) (1997).

Washington’s aiding and abetting statute stated at the 

time of Valdivia-Flores’ conviction: “A person is an 

accomplice of another person in the commission of a crime 

if . . .[w]ith knowledge that it will promote or facilitate the 

commission of the crime, he . . .[s]olicits, commands, 

encourages, or requests such other person to commit it; or 

[a]ids or agrees to aid such other person in planning or 

committing it.” Wash. Rev. Code § 9A.08.020(3)(a)(i)-(ii) 

(1997).

Valdivia-Flores does not vigorously challenge the notion 

that a drug trafficking offense constitutes an aggravated 

felony. Rather, he contends that our categorical analysis 

should focus on Washington’s aiding and abetting statute, 

which he argues is implicit in Washington’s drug trafficking 

statute. Valdivia-Flores relies heavily on the Supreme 

Court’s decision in Gonzalez v. Duenas-Alvarez, 549 U.S. 

183 (2007). He further contends that the implicit aiding and 

abetting liability is overbroad and indivisible.
UNITED STATES V. VALDIVIA-FLORES 23

The majority goes astray by accepting Valdivia-Flores’ 

argument. Reliance on Duenas-Alvarez as authority to 

support focusing our categorical analysis on Washington’s 

aiding and abetting statute is misplaced. In Duenas-Alvarez, 

the Supreme Court held that a “theft offense” includes the 

crime of aiding and abetting a theft offense. 549 U.S. at 189–

90. However, the statute at issue provided in pertinent part:

Any person who drives or takes a vehicle not 

his or her own, without the consent of the 

owner thereof, and with intent either to 

permanently or temporarily deprive the 

owner thereof of his or her title to or 

possession of the vehicle, whether with or 

without intent to steal the vehicle, or any 

person who is a party or an accessory to or 

an accomplice in the driving or unauthorized 

taking or stealing, is guilty of a public

offense.

Id. at 187 (quoting Cal. Veh. Code Ann. § 10851(a)) (some

emphasis added). Importantly, the language supporting an 

analysis of aiding and abetting liability came directly from 

the statute underlying Duenas-Alvarez’s conviction. See id.

Thus, the Supreme Court compared Cal. Veh. Code Ann. 

§ 10851(a), the statute of conviction, to the generic 

definition of a theft offense, consistent with a traditional 

categorical analysis. See id. at 189–94.

The majority compares Washington’s aiding and 

abetting statute—a statute that Valdivia admitted is a 

separate statute from the statute of conviction—to the 

generic definition of aiding and abetting. See Majority 

Opinion, pp. 11–13. As the district court observed in United 
24 UNITED STATES V. VALDIVIA-FLORES

States v. Gonzalez-Altamirano, No. 14CR 750-BEN, 2014 

WL 7047636 at *5 (S.D. Cal. Dec. 12, 2014):

Defendant . . . asks the Court to go beyond 

the Washington statute of conviction, look at 

a different statute, find that it impliedly 

applies to every offense, and find the 

application of the implication carries the 

conviction beyond the federal generic drug 

trafficking offense. To borrow a phrase, this 

argument requires the sort of theoretical 

possibility that was cautioned against in 

Gonzalez v. Duenas-Alvarez. . . .

(citation and internal quotation marks omitted). Tellingly, as 

in Gonzalez-Altamirano, the majority cites no precedent 

skipping over the actual statute of conviction to plug a 

completely different statute into the Taylor analysis. See

2014 WL 7047636 at *4. Further detracting from the 

majority’s conclusion, we have explicitly determined that a 

conviction under Wash. Rev.Code § 69.50.401 qualifies as a 

conviction for an aggravated felony in a different context. 

See United States v. Burgos-Ortega, 777 F.3d 1047, 1054–

55 (9th Cir.), cert. denied, 135 S. Ct. 2848 (2015) (upholding 

a sentence enhancement). Unlike the majority, we rejected 

the argument that the statute was categorically overbroad. 

See id.

It is also worth mentioning that documents in the record 

relevant to Valdivia-Flores’ conviction leave little doubt that 

he was convicted as a principal and not as an accomplice. 

The information charged Valdivia-Flores with unlawfully 

and feloniously possessing with the intent to manufacture or 

deliver heroin in violation of Wash. Rev.Code 

§ 69.50.401(a)(1). The Plea Statement signed by Valdivia-
UNITED STATES V. VALDIVIA-FLORES 25

Flores contains a handwritten acknowledgment that he was 

charged with possession of heroin with intent to deliver, 

stating the elements of the crime, and describing in his own 

words that he did “unlawfully possess with intent to deliver 

Heroin” knowing that it was a controlled substance. In a 

stipulation of facts provided to the district court, ValdiviaFlores agreed that on August 8, 1997, he suffered a felony 

conviction for Possession with Intent to Deliver Heroin, in 

violation of Wash. Rev. Code § 69.50.401(a). Finally, the 

state court’s judgment and sentence documented that 

Valdivia-Flores was convicted of Possession with Intent to 

Deliver Heroin in violation of Wash. Rev. Code 

§ 69.50.401(a)(1). Noticeably, no evidence in the record 

refers to Wash. Rev. Code § 9A.08.020 or suggests that 

Valdivia-Flores was convicted as an accomplice.

In my view, the majority has impermissibly veered away 

from the statute of conviction to find overbreadth based on 

its analysis of a statute that was not part of the prosecution 

or conviction in this case. Our analysis should have been on 

the actual statute of conviction, Wash. Rev. Code 

§ 69.50.401, which meets the definition of an aggravated 

felony.

Indeed, our precedent makes it crystal clear that 

conviction of aiding and abetting is tantamount to conviction 

of the underlying offense. See Salazar-Luviano v. Mukasey, 

551 F.3d 857, 860 n.2 (9th Cir. 2008) (“Salazar’s aiding and 

abetting conviction is technically a violation of 18 U.S.C. 

§ 2. That Salazar was convicted of aiding and abetting, 

however, makes him liable as a principal of the underlying 

offense.”); see also Ortiz-Magana v. Mukasey, 542 F.3d 653, 

659 (9th Cir. 2008) (“[Because] there is no material 

distinction between an aider and abettor and principals in 

any jurisdiction of the United States . . . aiding and abetting 
26 UNITED STATES V. VALDIVIA-FLORES

an [offense] is the functional equivalent of personally 

committing that offense [and] that offense . . . constitutes an 

aggravated felony.”) (emphasis added).

In Sales v. Sessions, 868 F.3d 779, 780 (9th Cir. 2017), 

we recently considered a conviction for second degree 

murder under California law. We noted that it was 

undisputed that a conviction for second degree murder is an 

aggravated felony. See id. We then decided that a 

conviction for aiding and abetting second degree murder 

“also qualifies as an aggravated felony.” Id. We clarified 

that “absent a showing that the law has been applied in some 

‘special’ way, a conviction in California for aiding and 

abetting a removable offense is also a removable offense.” 

Id. We eschewed the defendant’s reliance on DuenasAlvarez, as we should do in this case because our holding in 

Duenas-Alvarez does not apply to our Taylor analysis here. 

See id.

In Salazar-Luviano and in Ortiz-Magana, we discerned 

no reason to delve into the intricacies of the aiding and 

abetting statutes. Quite the opposite. As we explained in 

Salazar-Luviano in rejecting the government’s attempt to 

address the elements of the aiding and abetting statute, “[t]he 

government’s observation that aiding and abetting is a 

specific intent crime, is beside the point. Aiding and abetting 

is not a stand-alone offense–one convicted of aiding and 

abetting is guilty of the underlying substantive offense as if 

he committed it directly.” 551 F.3d at 862 n.4 (citation, 

alteration and internal quotation marks omitted). The same 

is true in this case. Because aiding and abetting is not an 

offense in and of itself, the majority’s focus on the elements 

of the Washington aiding and abetting statute is, as we 

previously noted, “beside the point.” Id. I respectfully 

dissent.