FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J O R GE R O MER

O -M I L LA

N , Petitioner ,

v.
W I L L IAM P. B AR

R , Attorney General, R espondent. No. 16-73915 Agency No. A077-138-666

E R NE S T O H ER

N A ND EZ C AB A NI L LA S , Petitioner ,

v.
W I L L IAM P. B AR

R , Attorney General, R espondent. No. 17-72893 Agency No. A095-285-170R O MER O -M I L LA

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. B AR

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M AR C O A N T ONI O G ARC IA

P AZ , AKA Garcia Marco A, AKA Garcia Marco Antonio, AKA Marco Antonia Garcia, AKA Marco Antonio Garcia,

Petitioner ,

v.
W I L L IAM P. B AR

R , Attorney General, R espondent. No. 18-71555 Agency No. A034-063-749

ORDER CERTIFYING QUESTIONS TO A RIZONA SUPREME COURT

Filed May 4, 2020 Before: Richard R. Clifton, John B. Owens, and Mark J. Bennett, Circuit Judges.

O rderR O MER O -M I L LA

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SUMMARY *

Certified Questions to State Court / Immigration
The panel certified the following questions of state law to the Arizona Suprem e Court:
1. I s Arizona’s possession of drug paraphernalia statute, A .R.S. § 13-3415, divisible as to drug type?
2. I s Arizona’s drug possession statute, A.R.S. § 13-3408, divisible as to drug type?
3. Put another way, is jury unanim ity (or concurrence) required as to which drug o r drugs listed in A.R.S. § 13-3401(6), (19), (20), or (23) was involved in an o ffen se under either statute?

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.R O MER O -M I L LA

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ORDER
The issues for decision in these cases are whether Arizona’s possession of drug paraphernalia statut e ( A.R.S. § 13-3415) and Arizona’s drug possession statute ( A.R.S. § 13-3408) are divisible as to drug type. Resolvi n g these questions will determ ine the outcom e of the p e nding cases. As such, w e respectfully request that the Arizona Sup r e me Court d eterm ine 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 Rom ero-Millan, pursuant to a plea agreem ent, was convicted o f p o s sessing or using d rug paraphernalia in violation of A.R. S. § 13-3415. A dm inistrative Record (AR) 2 2 7–29. While serving his sentence, the Departm ent o f Hom eland Security (DHS) served Rom ero-Millan with a Notice to App e ar, charging h im with rem ovability under 8 U. S. C. § 1182(a)(6)(A)(i), as an alien present in the U n i t e d S t a t e s w i t h o u t a d m i s s i o n o r p a r o l e , a n d § 1182(a)(2)(A)(i)(II), as an alien convicted of a controlled sub s t ance offense. AR 248–50. At the original rem oval hearing , Rom ero-Millan conceded both charges of rem oval, AR 7 0, but later withdrew h is concession on th e s econd charge o f r e mo v ability following the Suprem e Court’s d ec i s i on in Mellouli v. Lynch , 575 U.S. 798 (2015)

. AR 7 8–81. This second charge, for rem ovability as an al i e n convicted of a controlled substance offense, served a s the basis f or finding Rom ero-Millan statutorily ineligi b l e for adjustm ent of status. AR 56, 250. If A.R.S. § 13-3415 isR O MER O -M I L LA

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divisible h e will rem ain ineligible and the DHS w ill likely be perm itted to perm anently rem ove h im from the United States.

B. Hernandez Cabanillas and Garcia-Paz

Ernesto Hernandez Cabanillas, a native and citizen o f Mexico who has lawfully resided in the Unit e d St ates since 2004, was convicted pursuant to a plea agreem ent o f possessing a narcotic drug f or sale in v i olation of A.R.S. § 13-3408(A)(2). AR 2 3 3–35; 262. The DHS now seeks to
rem ove h im as a result of this crim e. Marco Antonio GarciaPaz, a n ative and citizen of Mexico who has lawfully resided in the United S tates since 1973 , was convicted o f the sam e crim e in 2014, an d the DHS now seeks to rem o ve him

. AR 116, 1536–37. For both individuals, the question of the statute’s d ivisibility is of great consequence. If it is d ivisible
as to d rug type, then the DHS is likely perm itted to perm anently rem ove them from the United States. If it is not divisible, the DHS is not so perm itted.

II. Governing Federal Law
At issue in these cases is whether the two Arizona statutes are divisible as to drug type. W e thus provide a brief background as to the relevant federal inquiry.

For an a lien to be rem o ved under 8 U.S.C. § 1182(a)(2)(A)(i)(II), the governm e nt m ust show that the alien’s state law conviction is related to a controlled substance under federal law. In M e llouli v. L

ynch , the Suprem e Court c larified that to dem onstrate that an o ffense is related to a controlled substance, “the Governm ent m ust connect an elem ent of the alien’s conviction to a drug defined in [21 U.S.C. § 802].” 575 U.S. 798, 135 S. Ct. 1 9 8 0 , 1991R O MER O -M I L LA

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R 6 (2015) (internal quotation om itted). T he Suprem e C ourt has created a three-step p rocess for determ in i n g whether this connection exists. See D escamps v. United States , 5 70 U. S. 254, 260–63 (2013) ; Taylor v. United States , 495 U.S. 575, 602 (1990).

“At th e fi rst step, w e em

ploy ‘the categorical approach, [in which] we exam ine only the statutory d e fi n it ion of the crim e to determ ine whether the state st atute of conviction renders an alien rem ovabl e under the statute of rem oval, wi th out looking to the actual conduct underlying the petitio n er’s offense.’” V illavicencio v. Sessions , 904 F.3d 658, 664 (9th Cir. 2018) (alter at io n in original) (quoting Ragasa v. Holder , 752 F .3d 1173, 1176 (9th Cir. 2014)). “[I]f the categorical approach reveals that the elem ents of the state

. . . crim e are broader than the elem ents of the federal offense, then the state crim e is not a categorical m atch.” Id

. If the statute is n o t a “ c ategorical” m atch the court m ust m ove on to determ ine whethe r th e statute is “divisible,”
nam ely whether it “sets out one or m ore elem ents o f the offense in the alternative” as opposed to listing alternative
m ethods of comm itting the crim e. Descamps , 5 70 U. S. at 257; s e e a l

s o Mathis v. United States , 1 36 S

. Ct. 2243, 2249 (2016). A state statute cont ai n s alternative “elem ents” and not m erely alternat ive “m eans” if a jury has to

“ u nanimously agree that [the defendant] comm itted a particular substantive o ffe n se contained within the disjunctively worded statute.” Rendon v. Holder , 764 F.3d 1077, 1 086 (9th Cir. 2014) (em phasis added). In order to determ ine whether a statute lays o ut alternative elem ents, “a court looks f

irst to the statute itself and then to the case law interpreting it.” Sandoval v. Sessions , 8 66 F.3d 986, 9 93 (9th Cir. 2017).R O MER O -M I L LA

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If the statute is n ot divisible, the analysis stops, as the alien’s state law conviction cannot be fo un d to be related to a controlled substance under federal law. Ho wever, if the statute is divisible, the court proceeds to the third step and
ap plies the “m o dified categorical approach.” Under th i s approach, courts m ay “consult a lim ited class o f docum ents

. . . to determ ine which alternat i v e fo rm e d the basis of the defendant’s prior conviction.” Descamps , 570 U.S. at 257. “These d ocum ents include ‘the charging docum ent, the term s of a p lea agreem ent o r transcript of colloquy between judge
an d defendant in which the factual basis for the plea was confirm ed by the defendant, or

. . . som e com parable judicial record of this inform ation.’” United States v. Marcia-Acosta , 780 F .3d 1244, 1250 (9th Cir. 201 5 ) ( quoting Shepard v. United S tates , 544 U.S. 13, 26 (2005)). If, using the m odified categorical approach, the court determ ines that the state law is related to a controlled substance under f ederal law, the alien is rem ovable.
These cases turn on the second step of the an a l ys i s, nam ely whether A.R.S. § 13-3415 and § 13-3408 are d ivisible
as to drug type. 1 This issue com es up rarely in state crim inal
cases because of how infrequently it is disputed. Ordinarily, there is evidence that the substance involved was a particular narcotic drug. While a defendant mi g ht dispute that the substan ce involved was a narcotic drug, the defendant is unlikely to c l a im that the substance was in fact a different

1 There is no categorical m atch between the federal crim e and the Arizona crim es because of a m inor but critical difference i n th e types o f drugs each statute prohibits. T he Arizona statute lists b enzylfentanyl and thenylfentanyl as prohibited narcotic drugs, A.R.S. § 1 3 -3 401(20)(n) & (m m m m), while the federal statute does not. See 21 U.S. C. § 8 12 ; 21 C.F.R. §§ 1308.11–15.R O MER O -M I L LA

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narcotic drug, and the jury will not b e asked to decide which drug it was. Exam

ples are rare in which the prosecutor claim s a defendant possessed h eroin, and the defendant counters by arguing that he instead possessed cocaine.
The question, therefore, is not a factual one—whether, in
m ost cases, a jury will tend to a g re e on the un derlying drug
a defendant possessed—but a legal o ne—whether a jury m ust agree, as a m atter of law, on what drug the defendant possessed. W e find it difficult to determ ine the answers from existing Arizona case law.

III. Parties’ Arguments
A. A.R.S. § 13-3415
Petitione r , Rom ero-Millan, argues that the specific drug underlying a violation of A.R.S. § 13-3415 is not an elem ent of the crim e, and therefore the s t atut e i s not divisible. He argues, am ong oth e r things, that the plain language of the statute dem onstrates that a jury need not agree on which drug
was involved in the violation, b ut sim ply that “a drug” on the relevant list of drugs was involved. In doing so, pet i t ioner points to cases such as Stat e v

. Lo d ge , No. 2 CA-CR 2 014- 0110, 2015 WL 164070, at *6 (Ariz. Ct. App. Jan. 14, 2 015) (holding that a jury n eed not conclude which drug was involved b ut rather that “[a]ll that is required is that the state establish som e use in violation of § 13-3415(A)”), and State
v. Prescott , N o. 1 CA- CR 15-0188, 2016 WL 611656, at *2 (Ariz. Ct. App. Feb. 16, 2016) (concludi n g that Arizona’s possession of a dangerous drug statute, A.R.S. § 13-3407, is not divisible as to drug type).R O MER O -M I L LA

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The governm ent argues that the specific drug underlying
a violat i o n o f A.R.S. § 13-3415 is an elem ent of the crim e, an d therefore that the statute is divisible. In m aking this argum ent, it points to, am ong other things, Arizona state law sentencing guidelines, A.R.S. § 1 3-901.01(A) & (H)(4), pattern jury instructions, and case law. Se e, e

. g

. , State v. Martinez , No. 2 CA -C R 2 0 1 6 -0 0 3 9 , 2 0 1 7 WL 4403141 (Ariz. Ct. App. Oct. 3, 2017) (upholding a conviction for two counts of possession of drug par aphernalia f or a single scale with
remnants of two drugs found on it).

B. A.R.S. § 13-3408 Petitioners, Cab anillas and Garcia-Paz, argue, am ong other thing s , th at th e 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 d rug was present. See, e.g. , Prescott , No. 1 CA-CR 1 5-0188, 2016 WL 611656, at *1 (“[U]nder the language of [A.R.S. § 13-3407], the State is only required to prove a d efe n dant knowingly sold and possessed a dangerous drug.”) ; State v. Castorina , No. 1 C ACR 08-0816, 2010 WL 2450117, at *4 (Ariz. Ct. Ap p. June 17, 2010) (“[I]t is suffic i e nt 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 d ef en d ant knew which particular drug defin ed u n d e r o ur l aw s a s a ‘dangerous’ d

rug o r ‘narcotic’ drug he knew h e possessed.”).
The governm ent contends, am ong other th i n gs, that Arizona appeals courts have p erm itted m ultiple convic t i o ns under A .R.S. § 1 3-3408 f or possession of m

ultiple n ar c o t ic drugs. See, e.g. , State v. Padilla , 176 Ariz. 81, 82, 85–86, 859 P.2d 1 91, 192, 1 96–96 (Ct. App. 1993); State v.R O MER O -M I L LA

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Lautzenheiser , 17 Ariz. Ap p

. 531, 531, 498 P.2d 6 05, 605 (Ct. App. 1972). Because of this, the governm ent argues, each drug type m

ust constitute a separate crim e under A.R.S. § 13- 3408.

IV. Certified Questions and Further Proceedings

To analyze the divisibility of a state st atut e , we look to authoritative sources of state law such as state court d ecisions and the wording of the statute in question. See Mathis , 136 S. Ct. at 2256. Ta k i n g this guidance, w e certify the following questions to the Arizona Suprem e Court:
1. Is Arizona’s p ossession 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 unanim ity (or concurrence) required as to which dru g o r drugs listed in A.R.S. § 13- 3401(6), (19), (20), or (23) was involved in an offense under either statute?

W e respectfully ask the Arizona Suprem e Court to exercise its d iscretion ary authority to accept certification under A.R.S. § 1 2-1861. “Our phrasing of th e questions should not restrict the Court ’ s consideration of the issues involved. W e ackno wl e d ge that the Court m ay reform u late the relevant state law questions as it perceives them to be, in l i ght of the contentions of the parties.” Raynor v. United of Omaha Life Ins. C

o ., 8 58 F.3d 1268, 1273 (9 th Cir. 2 017) (internal quotation and alteratio n s o m itted) (q u o t in g T o n er ex.R O MER O -M I L LA

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r el

. Toner v. Lederle Labs. , 7 79 F.2d 1429, 1433 (9th Ci r. 1986)).

W e acknowledge that thi s inquiry in the context o f imm igration cases like these is m ostly a federal conc e rn , a s it is a product of federal law and im pacts c a s es in federal court. Nonetheless, w e recognize that Arizona has an interest in this question because of the potential im pact on state cases. For exam ple, if A.R.S. § 13-3408 is divisible as to drug type, and thus is a predicate offense for imm igration r em oval purposes, this requires the state to prove, in every case, what drug type a defendant p ossessed, an d m ight n ecessitate a different result in Castorina and Prescott , the interm ediate appeals court cases that held the state was not requir ed to prove which drug type a defendant knowingly possessed. See Pr es co tt , N o. 1 CA-CR 15-0188, 2016 WL 611656, at *1; Castorina , No. 1 CA-CR 08-0816, 2010 WL 2450117, at *4.

W e agree to abide by the d ecision of the Arizona Suprem e Court. See D oyle v. City o fMedford, 565 F.3d 536, 5 44 (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 Suprem e Court p ursuant to Arizona S uprem e Court Rule 27. This appeal is withdrawn from subm ission and will be resubm itted following the conclusion of proceedings in the Arizona Suprem e Court. The Clerk is d irected to adm inistratively close this docket, pending further order. W e retain jurisdiction over any further proceedings in this court. The p art ie s will notify the C lerk within one week after the Arizona Suprem e Court accepts or rejects certific ation and again within one week after that court renders an Opinion.R O MER O -M I L LA

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V. COUNSEL
Counsel for Petitioner Jorge Rom ero-Millan in Case No. 16-73915:
Gabriel Gom ez Leyba Crossroads Law Group, LLC 3200 N. Central Avenue, Suite 2475 Phoenix, AZ 85012 Phone: 602-377-9292
Counsel for Respond ent W illiam P. Barr, Attorney General, in Case No. 16-73915:

Em ily Anne Radford Nehal H. Kam ani Imran Raza Zaidi U.S. Departm ent of Justice Civil Division Office of Im

m igration Litigation P.O. Box 878, Ben Franklin Station W ashington, D.C. 20044 Phone: 202-305-4241
Counsel for Pet i tioner Ernesto Hernandez Cabanillas in Case No. 17-72893:
Roberta Ann W ilson Law Offices of Monica Sud-Devaraj, PLLC 141 E. Palm

Lane, Suite 100 Phoenix, AZ 85004 Phone: 602-234-0782R O MER O -M I L LA

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Counsel for Respondent W illiam P. Barr, Attorney General, in Case No. 17-72893:

Em ily Anne Radford David J. Schor U.S. Departm ent of Justice Civil Division Office of Im

m igration Litigation P.O. Box 878, Ben Franklin Station W ashington, 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 Res pondent W illiam P. Barr, Attorney General, in Case No. 18-71555: Joseph H. Hunt Jeffrey R. Leist Raya Jarawan Imran Raza Zaidi U.S. Departm ent of Justice Civil Division Office of Im

m igration Litigation P.O. Box 878, Ben Franklin Station W ashington, D.C. 20044 Phone: 202-305-4241R O MER O -M I L LA

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IT IS SO ORDERED.

/s/Richard R. Clifton Richard R. Clifton, Circuit Judge