FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ROMERO-MILLAN,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 16-73915

Agency No.

A077-138-666

ERNESTO HERNANDEZ

CABANILLAS,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 17-72893

Agency No.

A095-285-170
2 ROMERO-MILLAN V. BARR

MARCO ANTONIO GARCIAPAZ, AKA Garcia Marco A,

AKA Garcia Marco Antonio,

AKA Marco Antonia Garcia,

AKA Marco Antonio Garcia,

Petitioner,

v.

WILLIAM P. BARR, Attorney

General,

Respondent.

No. 18-71555

Agency No.

A034-063-749

ORDER CERTIFYING

QUESTIONS TO

ARIZONA SUPREME

COURT

Filed May 4, 2020

Before: Richard R. Clifton, John B. Owens,

and Mark J. Bennett, Circuit Judges.

Order
ROMERO-MILLAN V. BARR 3

SUMMARY*

Certified Questions to State Court / Immigration

The panel certified the following questions of state law to

the Arizona Supreme Court:

1. Is Arizona’s possession of drug

paraphernalia statute, A.R.S. § 13-3415,

divisible as to drug type?

2. Is Arizona’s drug possession statute,

A.R.S. § 13-3408, divisible as to drug

type?

3. Put another way, is jury unanimity (or

concurrence) required as to which drug or

drugs listed in A.R.S. § 13-3401(6), (19),

(20), or (23) was involved in an offense

under either statute?

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

been prepared by court staff for the convenience of the reader.
4 ROMERO-MILLAN V. BARR

ORDER

The issues for decision in these cases are whether

Arizona’s possession of drug paraphernalia statute (A.R.S.

§ 13-3415) and Arizona’s drug possession statute (A.R.S.

§ 13-3408) are divisible as to drug type. Resolving these

questions will determine the outcome of the pending cases.

As such, we respectfully request that the Arizona Supreme

Court determine whether, under Arizona law, A.R.S. § 13-

3415 and § 13-3408 are divisible as to drug type.

I. Factual and Procedural Background

A. Romero-Millan 

Jorge Romero-Millan, pursuant to a plea agreement, was

convicted of possessing or using drug paraphernalia in

violation of A.R.S. § 13-3415. Administrative Record (AR)

227–29. While serving his sentence, the Department of

Homeland Security (DHS) served Romero-Millan with a

Notice to Appear, charging him with removability under

8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the

United States without admission or parole, and

§ 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled

substance offense. AR 248–50. At the original removal

hearing, Romero-Millan conceded both charges of removal,

AR 70, but later withdrew his concession on the second

charge of removability following the Supreme Court’s

decision in Mellouli v. Lynch, 575 U.S. 798 (2015).

AR 78–81. This second charge, for removability as an alien

convicted of a controlled substance offense, served as the

basis for finding Romero-Millan statutorily ineligible for

adjustment of status. AR 56, 250. If A.R.S. § 13-3415 is
ROMERO-MILLAN V. BARR 5

divisible he will remain ineligible and the DHS will likely be

permitted to permanently remove himfrom the United States.

B. Hernandez Cabanillas and Garcia-Paz

Ernesto Hernandez Cabanillas, a native and citizen of

Mexico who has lawfully resided in the United States since

2004, was convicted pursuant to a plea agreement of

possessing a narcotic drug for sale in violation of A.R.S.

§ 13-3408(A)(2). AR 233–35; 262. The DHS now seeks to

remove him as a result of this crime. Marco Antonio GarciaPaz, a native and citizen of Mexico who has lawfully resided

in the United States since 1973, was convicted of the same

crime in 2014, and the DHS now seeks to remove him.

AR 116, 1536–37. For both individuals, the question of the

statute’s divisibility is of great consequence. If it is divisible

as to drug type, then the DHS is likely permitted to

permanently remove them from the United States. If it is not

divisible, the DHS is not so permitted.

II. Governing Federal Law

At issue in these cases is whether the two Arizona statutes

are divisible as to drug type. We thus provide a brief

background as to the relevant federal inquiry.

For an alien to be removed under 8 U.S.C.

§ 1182(a)(2)(A)(i)(II), the government must show that the

alien’s state law conviction is related to a controlled

substance under federal law. In Mellouli v. Lynch, the

Supreme Court clarified that to demonstrate that an offense

is related to a controlled substance, “the Government must

connect an element of the alien’s conviction to a drug defined

in [21 U.S.C. § 802].” 575 U.S. 798, 135 S. Ct. 1980, 1991
6 ROMERO-MILLAN V. BARR

(2015) (internal quotation omitted). The Supreme Court has

created a three-step process for determining whether this

connection exists. See Descamps v. United States, 570 U.S.

254, 260–63 (2013); Taylor v. United States, 495 U.S. 575,

602 (1990). 

“At the first step, we employ ‘the categorical approach,

[in which] we examine only the statutory definition of the

crime to determine whether the state statute of conviction

renders an alien removable under the statute of removal,

without looking to the actual conduct underlying the

petitioner’s offense.’” Villavicencio v. Sessions, 904 F.3d

658, 664 (9th Cir. 2018) (alteration in original) (quoting

Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014)). “[I]f

the categorical approach reveals that the elements of the state

. . . crime are broader than the elements of the federal offense,

then the state crime is not a categorical match.” Id. 

If the statute is not a “categorical” match the court must

move on to determine whether the statute is “divisible,”

namely whether it “sets out one or more elements of the

offense in the alternative” as opposed to listing alternative

methods of committing the crime. Descamps, 570 U.S.

at 257; see also Mathis v. United States, 136 S. Ct. 2243,

2249 (2016). A state statute contains alternative “elements”

and not merely alternative “means” if a jury has to

“unanimously agree that [the defendant] committed a

particular substantive offense contained within the

disjunctively worded statute.” Rendon v. Holder, 764 F.3d

1077, 1086 (9th Cir. 2014) (emphasis added). In order to

determine whether a statute lays out alternative elements, “a

court looks first to the statute itself and then to the case law

interpreting it.” Sandoval v. Sessions, 866 F.3d 986, 993 (9th

Cir. 2017). 
ROMERO-MILLAN V. BARR 7

If the statute is not divisible, the analysis stops, as the

alien’s state law conviction cannot be found to be related to

a controlled substance under federal law. However, if the

statute is divisible, the court proceeds to the third step and

applies the “modified categorical approach.” Under this

approach, courts may “consult a limited class of documents

. . . to determine which alternative formed the basis of the

defendant’s prior conviction.” Descamps, 570 U.S. at 257.

“These documents include ‘the charging document, the terms

of a plea agreement or transcript of colloquy between judge

and defendant in which the factual basis for the plea was

confirmed by the defendant, or . . . some comparable judicial

record of this information.’” United States v. Marcia-Acosta,

780 F.3d 1244, 1250 (9th Cir. 2015) (quoting Shepard v.

United States, 544 U.S. 13, 26 (2005)). If, using the modified

categorical approach, the court determines that the state law

is related to a controlled substance under federal law, the

alien is removable. 

These cases turn on the second step of the analysis,

namely whether A.R.S. § 13-3415 and § 13-3408 are divisible

as to drug type.1 This issue comes up rarely in state criminal

cases because of how infrequently it is disputed. Ordinarily,

there is evidence that the substance involved was a particular

narcotic drug. While a defendant might dispute that the

substance involved was a narcotic drug, the defendant is

unlikely to claim that the substance was in fact a different

1 There is no categorical match between the federal crime and the

Arizona crimes because of a minor but critical difference in the types of

drugs each statute prohibits. The Arizona statute lists benzylfentanyl and

thenylfentanyl as prohibited narcotic drugs, A.R.S. § 13-3401(20)(n) &

(mmmm), while the federal statute does not. See 21 U.S.C. § 812;

21 C.F.R. §§ 1308.11–15.
8 ROMERO-MILLAN V. BARR

narcotic drug, and the jury will not be asked to decide which

drug it was. Examples are rare in which the prosecutor claims

a defendant possessed heroin, and the defendant counters by

arguing that he instead possessed cocaine.

The question, therefore, is not a factual one—whether, in

most cases, a jury will tend to agree on the underlying drug

a defendant possessed—but a legal one—whether a jury must

agree, as a matter of law, on what drug the defendant

possessed. We find it difficult to determine the answers from

existing Arizona case law.

III. Parties’ Arguments

A. A.R.S. § 13-3415

Petitioner, Romero-Millan, argues that the specific drug

underlying a violation of A.R.S. § 13-3415 is not an element

of the crime, and therefore the statute is not divisible. He

argues, among other things, that the plain language of the

statute demonstrates that a jury need not agree on which drug

was involved in the violation, but simply that “a drug” on the

relevant list of drugs was involved. In doing so, petitioner

points to cases such as State v. Lodge, No. 2 CA-CR 2014-

0110, 2015 WL 164070, at *6 (Ariz. Ct. App. Jan. 14, 2015)

(holding that a jury need not conclude which drug was

involved but rather that “[a]ll that is required is that the state

establish some use in violation of § 13-3415(A)”), and State

v. Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *2

(Ariz. Ct. App. Feb. 16, 2016) (concluding that Arizona’s

possession of a dangerous drug statute, A.R.S. § 13-3407, is

not divisible as to drug type).
ROMERO-MILLAN V. BARR 9

The government argues that the specific drug underlying

a violation of A.R.S. § 13-3415 is an element of the crime,

and therefore that the statute is divisible. In making this

argument, it points to, among other things, Arizona state law

sentencing guidelines, A.R.S. § 13-901.01(A) & (H)(4),

pattern jury instructions, and case law. See, e.g., State v.

Martinez, No. 2CA-CR2016-0039, 2017WL 4403141 (Ariz.

Ct. App. Oct. 3, 2017) (upholding a conviction for two counts

of possession of drug paraphernalia for a single scale with

remnants of two drugs found on it).

B. A.R.S. § 13-3408

Petitioners, Cabanillas and Garcia-Paz, argue, among

other things, that the text of the statute, as well as Arizona

cases interpreting it and the pattern jury instructions, indicate

that the jury need not agree which narcotic drug was present.

See, e.g., Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656,

at *1 (“[U]nder the language of [A.R.S. § 13-3407], the State

is only required to prove a defendant knowingly sold and

possessed a dangerous drug.”); State v. Castorina, No. 1 CACR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. App. June

17, 2010) (“[I]t is sufficient for the state to show that

defendant knew he possessed a narcotic or dangerous drug;

neither our statutes nor case law require the state to prove that

defendant knew which particular drug defined under our laws

as a ‘dangerous’ drug or ‘narcotic’ drug he knew he

possessed.”).

The government contends, among other things, that

Arizona appeals courts have permitted multiple convictions

under A.R.S. § 13-3408 for possession of multiple narcotic

drugs. See, e.g., State v. Padilla, 176 Ariz. 81, 82, 85–86, 859

P.2d 191, 192, 196–96 (Ct. App. 1993); State v.
10 ROMERO-MILLAN V. BARR

Lautzenheiser, 17 Ariz. App. 531, 531, 498 P.2d 605, 605

(Ct. App. 1972). Because of this, the government argues, each

drug type must constitute a separate crime under A.R.S. § 13-

3408.

IV. Certified Questions and Further Proceedings

To analyze the divisibility of a state statute, we look to

authoritative sources of state law such as state court decisions

and the wording of the statute in question. See Mathis, 136 S.

Ct. at 2256. Taking this guidance, we certify the following

questions to the Arizona Supreme Court:

1. Is Arizona’s possession of drug paraphernalia statute,

A.R.S. § 13-3415, divisible as to drug type?

2. Is Arizona’s drug possession statute, A.R.S. § 13-

3408, divisible as to drug type?

3. Put another way, is jury unanimity (or concurrence)

required as to which drug or drugs listed in A.R.S. § 13-

3401(6), (19), (20), or (23) was involved in an offense under

either statute?

We respectfully ask the Arizona Supreme Court to

exercise its discretionary authority to accept certification

under A.R.S. § 12-1861. “Our phrasing of the questions

should not restrict the Court’s consideration of the issues

involved. We acknowledge that the Court may reformulate

the relevant state law questions as it perceives them to be, in

light of the contentions of the parties.” Raynor v. United of

Omaha Life Ins. Co., 858 F.3d 1268, 1273 (9th Cir. 2017)

(internal quotation and alterations omitted) (quoting Toner ex.
ROMERO-MILLAN V. BARR 11

rel. Toner v. Lederle Labs., 779 F.2d 1429, 1433 (9th Cir.

1986)).

We acknowledge that this inquiry in the context of

immigration cases like these is mostly a federal concern, as

it is a product of federal law and impacts cases in federal

court. Nonetheless, we recognize that Arizona has an interest

in this question because of the potential impact on state cases.

For example, if A.R.S. § 13-3408 is divisible as to drug type,

and thus is a predicate offense for immigration removal

purposes, this requires the state to prove, in every case, what

drug type a defendant possessed, and might necessitate a

different result in Castorina and Prescott, the intermediate

appeals court cases that held the state was not required to

prove which drug type a defendant knowingly possessed. See

Prescott, No. 1 CA-CR 15-0188, 2016 WL 611656, at *1;

Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4.

We agree to abide by the decision of the Arizona Supreme

Court. See Doyle v. City of Medford, 565 F.3d 536, 544 (9th

Cir. 2009). If the court decides not to accept certification, we

will resolve these questions following our best understanding

of Arizona law. 

The Clerk will file a certified copy of this order with the

Arizona Supreme Court pursuant to Arizona Supreme Court

Rule 27. This appeal is withdrawn from submission and will

be resubmitted following the conclusion of proceedings in the

Arizona Supreme Court. The Clerk is directed to

administratively close this docket, pending further order. We

retain jurisdiction over any further proceedings in this court.

The parties will notify the Clerk within one week after the

Arizona Supreme Court accepts or rejects certification and

again within one week after that court renders an Opinion.
12 ROMERO-MILLAN V. BARR

V. COUNSEL

Counsel for Petitioner Jorge Romero-Millan in Case No.

16-73915:

Gabriel Gomez Leyba

Crossroads Law Group, LLC

3200 N. Central Avenue, Suite 2475

Phoenix, AZ 85012

Phone: 602-377-9292

Counsel for Respondent William P. Barr, Attorney

General, in Case No. 16-73915:

Emily Anne Radford

Nehal H. Kamani

Imran Raza Zaidi

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Phone: 202-305-4241

Counsel for Petitioner Ernesto Hernandez Cabanillas in

Case No. 17-72893:

Roberta Ann Wilson

Law Offices of Monica Sud-Devaraj, PLLC

141 E. Palm Lane, Suite 100

Phoenix, AZ 85004

Phone: 602-234-0782
ROMERO-MILLAN V. BARR 13

Counsel for Respondent William P. Barr, Attorney

General, in Case No. 17-72893:

Emily Anne Radford

David J. Schor

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Phone: 202-305-7190

Counsel for Petitioner Marco Antonio Garcia-Paz in Case

No. 18-71555:

Matthew Harrison Green

Green Evans-Schroeder

130 W. Cushing Street

Tucson, AZ 85701

Phone: 520-882-8852

Counsel for Respondent William P. Barr, Attorney

General, in Case No. 18-71555:

Joseph H. Hunt

Jeffrey R. Leist

Raya Jarawan

Imran Raza Zaidi

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Phone: 202-305-4241
14 ROMERO-MILLAN V. BARR

IT IS SO ORDERED.

 /s/Richard R. Clifton

Richard R. Clifton, Circuit Judge