PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 20-3307 and 21-1262

_____________

SRECKO PESIKAN,

 Petitioner 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA 

_______________

On Petition for Review of an Order of the

Board of Immigration Appeals

(BIA 1:A075-161-152)

Immigration Judge: Kuyomars Q. Golparvar

_______________

Argued on June 27, 2023

Before: JORDAN, KRAUSE, and MONTGOMERYREEVES, Circuit Judges

(Filed: September 26, 2023)

_______________
2

Stephen A. Fogdall [ARGUED]

Dilworth Paxson

1500 Market Street

Suite 3500E

Philadelphia, PA 19102

Arleigh P. Helfer, III

Helfer Law

410 Campbell Avenue

Havertown, PA 19083

Bruce P. Merenstein

Welsh & Recker

306 Walnut Street

Philadelphia, PA 19106

 Counsel for Petitioner

Alexander J. Lutz [ARGUED]

Craig A. Newwell, Jr.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

_______________

OPINION OF THE COURT

_______________
3

JORDAN, Circuit Judge.

Petitioner Srecko Pesikan argues that the Board of 

Immigration Appeals (“BIA”) erred in concluding that his 

2018 Pennsylvania conviction for driving under the influence 

(“DUI”) of marijuana constituted an offense involving a 

“controlled substance,” as defined in the federal Controlled 

Substances Act (“CSA”), thereby rendering him removable 

under the Immigration and Nationality Act of 1952, 8 U.S.C. 

§ 1227(a) (“INA”). We agree and will grant his petition for 

review.

I. BACKGROUND 1

Pesikan is a citizen of Bosnia and Herzegovina 

(“Bosnia”). In 1992, when he was six years old, he, along with 

his mother and sister, fled Bosnia when war broke out there. 

In 1998, they entered the United States as refugees and gained 

lawful permanent resident (“LPR”) status. 

In June 2017, Pesikan caused a car accident while under 

the influence of drugs and alcohol. Eyewitnesses reported that 

he was swerving side-to-side across multiple lanes until he 

crashed into a center divider on a highway, at which point he 

1 This appeal comprises two consolidated Petitions for 

Review, case numbers 20-3307 and 21-1262, but Pesikan has 

elected “not [to] pursue [the 20-3307] appeal here.” (Opening 

Br. at 2-3 n.1.) Accordingly, Pesikan has waived his 

arguments in case number 20-3307. 
4

and his female passenger left the scene.2 A responding police 

officer found a half-consumed bottle of whiskey on the driver’s 

seat and marijuana in the driver’s door pocket. A blood test of

Pesikan revealed the presence of cocaine, marijuana, 

alprazolam, and a blood alcohol content of .054. 

In 2018, Pesikan was convicted in the Court of 

Common Pleas of six counts of driving under the influence in 

violation of 75 Pa. Cons. Stat. § 3802.3 At the time of 

2 Pesikan testified at his removal hearing that the crash 

was caused by his car’s axle breaking. He also testified that, 

contrary to the police report, he did not flee the scene, but had 

instead walked about one hundred feet away from his car to 

“avoid getting hit by the car[s] driving by.” (A.R. at 174.) 

3 Count 1 was for “imbibing a sufficient amount of 

alcohol such that the actor was rendered incapable of driving 

safely” in violation of 75 Pa. Cons. Stat. § 3802(a)(1); Count 2

was for driving under the influence of a “Schedule I controlled 

substance, Namely: Marijuana” in violation of § 3802(d)(1)(i); 

Count 3 was for driving under the influence of a “Schedule II 

or Schedule III controlled substance, namely, cocaine” in 

violation of § 3802(d)(1)(ii); Count 4 was for driving while 

under the influence of “a Metabolite of a [Schedule I, Schedule 

II, or Schedule III controlled] substance, namely,

benzoylecgonine and/or marijuana” in violation of 

§ 3802(d)(1)(iii); Count 5 was for driving “while under the 

influence of a drug or combination of drugs, namely, 

alprazolam (schedule IV), to a degree which impaired the 

actor’s ability to drive safely” in violation of § 3802(d)(2); and 

Count 6 was for driving “while under the combined influence 

of alcohol and a drug or combination of drugs to a degree 
5

Pesikan’s conviction, Pennsylvania’s DUI statute read, in 

relevant part:

(d) Controlled Substances. – An individual may 

not drive, operate or be in actual physical control 

of the movement of a vehicle under any of the 

following circumstances:

(1) There is in the individual’s blood any amount 

of a:

(i) Schedule I controlled substance, as 

defined in ... [Pennsylvania’s controlled 

substance schedules];

(ii) Schedule II or Schedule III controlled 

substance, as defined in [Pennsylvania’s 

controlled substance schedules], which 

has not been medically prescribed for the 

individual; or

(iii) metabolite of a substance under 

subparagraph (i) or (ii).

(2) The individual is under the influence of a 

drug or combination of drugs to a degree which 

impairs the individual’s ability to safely drive, 

operate or be in actual physical control of the 

movement of the vehicle.

which impaired the actor’s ability to drive safely” in violation 

of § 3802(d)(3). (A.R at 838, 840.) 
6

(3) The individual is under the combined 

influence of alcohol and a drug or combination 

of drugs to a degree which impairs the 

individual’s ability to safely drive, operate or be 

in actual physical control of the movement of the 

vehicle.

75 Pa. Cons. Stat. § 3802(d).

The trial court merged all of the DUI counts into Count 

2 – for driving while under the influence of marijuana in 

violation of § 3802(d)(1)(i) – and sentenced Pesikan to 60 days 

to six months’ imprisonment, a $1,000 fine, participation in an 

alcohol highway safety school, and, depending on a future 

evaluation, participation in additional alcohol-related 

treatment.4 

4 The Superior Court of Pennsylvania has “held that a 

defendant should not be subjected to separate sentences for 

multiple convictions arising under Section 3802(d)(1)” 

because “Section 3802(d)(1) proscribes a single harm to the 

Commonwealth[.]” Commonwealth v. Westlake, 295 A.3d 

1281, 1289 (Pa. Super. Ct. 2023) (quoting Commonwealth v. 

Given, 244 A.3d 508, 512 (Pa. Super. Ct. 2020)). Accordingly, 

trial courts are to merge a defendant’s “DUI convictions [under 

Section 3802(d)(1)] for purposes of sentencing.” Id. The trial 

court here merged not only the § 3802(d)(1) counts, Counts 2-

4, but also Pesikan’s violations of § 3802(a)(1), § 3802(d)(2), 

and § 3802(d)(3) – Counts 1, 5, and 6, respectively. In 

addressing an earlier version of Pennsylvania’s DUI statute, 

the Supreme Court of Pennsylvania suggested that all DUI 

violations should merge when it explained that “the driving 
7

In November 2019, the Department of Homeland 

Security (“DHS”) charged Pesikan with removability as an 

alien convicted of violating a law relating to a controlled 

substance under 8 U.S.C. § 1227(a)(2)(B)(i), which asks 

whether a noncitizen “has been convicted of a violation of ... 

any law ... relating to a [federally] controlled substance.” 

Pesikan moved to terminate his charge of removability.5 

He admitted that, pursuant to Pennsylvania law, he had been 

convicted of driving under the influence, but he argued that, 

with application of the categorical approach to comparing state 

and federal crimes, his conviction could not be considered an

offense “relating to a controlled substance” under § 102 of the 

CSA. In particular, he asserted that Pennsylvania’s DUI statute 

under the influence statute proscribes a single harm to the 

Commonwealth-the operation of a vehicle under the influence 

to a degree that renders an individual incapable of safe 

driving.” Commonwealth v. McCurdy, 735 A.2d 681, 685-86 

(Pa. 1999). Finally, we note that, although not at issue here, 

Pesikan was also convicted of possession for personal use of 

marijuana in violation of 35 Pa. Cons. Stat. § 780-113, and he 

was sentenced to 15 days’ probation on that count. 

5 Pesikan also filed an application for asylum, 

withholding of removal, and, pursuant to the Convention 

Against Torture, deferral of removal. The Immigration Judge

and BIA denied those claims. This opinion does not address

the rulings as to those claims because we will grant Pesikan’s 

Petition for Review based on his underlying motion to 

terminate his charge of removability.
8

is broader than the CSA because the former allows for 

convictions based on the use of substances that are not 

federally controlled. 

The Immigration Judge (“IJ”), after deciding that the 

Pennsylvania DUI statute is divisible, applied the modified 

categorical approach, determined that the pertinent DUI 

provision categorically matches 8 U.S.C. § 1227(a)(2)(B)(i), 

and denied Pesikan’s motion to terminate.6 Pesikan timely 

appealed the IJ’s decision to the BIA, and the BIA affirmed the 

IJ’s ruling – for the same reasons articulated by the IJ – and 

dismissed Pesikan’s appeal. Pesikan then timely petitioned us 

for review of the BIA’s decision. 

II. DISCUSSION7

The parties agree that Pesikan’s state DUI conviction 

must be analyzed under some version of the categorical 

approach to determine whether it constitutes an offense 

relating to a “controlled substance” under the CSA, thereby 

triggering his removability under the INA. See Mellouli v. 

Lynch, 575 U.S. 798, 804 (2015) (“[I]n determining ... whether 

6 The IJ sustained the charge of removability based on 

the 75 Pa. Cons. Stat. § 3802(d)(1)(i) marijuana DUI 

conviction. 

7 We have jurisdiction over this petition for review 

under 8 U.S.C. § 1252. We review the BIA’s legal conclusions 

de novo. Hillocks v. Att’y Gen., 934 F.3d 332, 337-38 (3d Cir. 

2019). We “consider the opinion of the IJ only insofar as the 

BIA deferred to it.” Singh v. Att’y Gen., 839 F.3d 273, 282 (3d 

Cir. 2016) (quotation omitted). 
9

a state conviction renders an alien removable under the 

immigration statute[,]” courts apply “the categorical 

approach.”). 

“Because Congress predicated deportation on

convictions, not conduct, the [categorical] approach looks to 

the statutory definition of the offense of conviction, not to the 

particulars of an alien’s behavior.” Id. at 805 (quotation 

omitted). Accordingly, courts may not examine the facts 

underlying the crime. Id. at 805-06 (quotation omitted). 

Instead, “the adjudicator must presume that the conviction 

rested upon nothing more than the least of the acts criminalized 

under the same statute.” Id. at 805. The state conviction will 

then trigger removal only if it is a categorical match for the 

federal offense, i.e., contains all the elements of a removable 

offense “defined by federal law.” Id. 

When, however, a statute of conviction is divisible –

that is, it embodies definitions of more than one crime and is 

thus susceptible to being analytically divided into those 

separate definitions – a court may apply the “modified 

categorical approach,” which allows examination of certain 

documents in the record of conviction to determine which of 

the different crimes in the statute the alien was convicted of 

committing. Descamps v. United States, 570 U.S. 254, 257 

(2013). Those documents include “the charging document and 

jury instructions, or in the case of a guilty plea, the plea 

agreement, plea colloquy, or some comparable judicial record 

of the factual basis of the plea.” Moncrieffe v. Holder, 569 U.S. 

184, 191 (2013) (quotation omitted). Again, a statute is 

divisible if it defines “multiple crimes” by “list[ing] elements 

in the alternative,” whether in the disjunctive or in separate 

subsections. Mathis v. United States, 579 U.S. 500, 505
10

(2016); see also Descamps, 570 U.S. at 257 (explaining that a 

divisible “statute sets out one or more elements of the offense 

in the alternative – for example, stating that burglary involves 

entry into a building or an automobile”). 

As the foregoing indicates, it is important to determine 

whether a statute merely sets forth multiple means of 

accomplishing a single offense and is thus indivisible, or 

instead sets forth different crimes, with their different 

elements, and so is divisible. In answering the “means-orelements” question, we will defer to an “authoritative source 

of state law,” such as a holding from the state’s highest court, 

and will consider a decision from a lower court of the state as 

a significant “datum for ascertaining state law which is not to 

be disregarded by a federal court unless it is convinced by other 

persuasive data that the highest court of the state would decide 

otherwise.” Singh v. Att’y Gen., 839 F.3d 273, 283 & n. 5 (3d 

Cir. 2016) (quotation omitted). 

The parties agree that the substances listed on Schedule 

I of Pennsylvania’s Controlled Substance, Drug, Device and 

Cosmetic Act include substances beyond those listed in the 

federal CSA. See Hillocks v. Att’y Gen., 934 F.3d 332, 340 (3d 

Cir. 2019) (“[The] Pennsylvania controlled substance list 

incorporates several drugs that are not on the federal list.”); see 

also (Answering Br. at 23 (“There is no dispute that 

§ 3802(d)(1)(i) overbroadly incorporates some Pennsylvania 

Schedule I substances that are not federally controlled[.]”)). In 

other words, a conviction under Pennsylvania’s DUI statute is 

not a categorical match for the federal offenses set out in the 

CSA. Pesikan therefore cannot be removed under the INA as 

someone who has committed a federal controlled substance 

offense unless the Pennsylvania DUI statute is divisible and, 
11

consequently, the strictures of the categorical approach give 

way to the broader review allowed by the modified categorical 

approach, in which case some inquiry into the underlying facts 

of Pesikan’s DUI conviction is permitted.

8

We conclude that the pertinent Pennsylvania statute, 75 

Pa. Cons. Stat. § 3802(d)(1)(i), is best read as being indivisible. 

Instead of “list[ing] multiple elements disjunctively,” as is the 

hallmark of a divisible statutory provision, § 3802(d)(1)(i) 

incorporates an “itemize[d]” list of “diverse means” by which 

an individual might violate the law by having a Schedule I 

controlled substance in his blood. See Mathis, 579 U.S. at 506. 

This is evident from the fact that a jury could have convicted 

Pesikan under § 3802(d)(1)(i) even if the jurors disagreed 

about which particular controlled substance was in his blood. 

If, for example, some jurors had determined that Pesikan was 

under the influence of only cocaine while others concluded that 

he was under the influence of only marijuana, he would still 

have committed the crime set forth in § 3802(d)(1)(i), “so long 

as all agreed that the defendant” was under the influence of any

Schedule I controlled substance.9 Id. 

8 The government acknowledges that, “[u]nder the 

default categorical approach, the presence in Pennsylvania’s 

Schedule I of some substances that are not federally controlled 

would render § 3802(d)(1)(i) overbroad with respect to 8 

U.S.C. § 1227(a)(2)(B)(i), meaning that no conviction under 

that statute could support that charge of removability.” 

(Answering Br. at 28.) 

9 The Supreme Court described a similarly indivisible 

statute in the following hypothetical: 
12

Our reading of § 3802(d)(1)(i) is consistent with 

caselaw from the Superior Court of Pennsylvania, which 

teaches that convictions arising under § 3802(d)(1) should be 

merged at sentencing. In Commonwealth v. Given, the 

Superior Court held that the merger of sentences under 

§ 3802(d)(1) is proper because that provision “proscribes a 

single harm to the Commonwealth – DUI-Controlled 

Substance.” 244 A.3d 508, 512 (Pa. Super. Ct. 2020). The 

court reasoned that “Subsections 3802(d)(1)(i) and (iii) provide 

alternate means by which the Commonwealth can establish the 

offense, but do not provide proof of different offenses.” Id.; 

see also Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa. 

Super. Ct. 2023) (DUI convictions for “both cocaine and 

Benzoylecgonine, the metabolite of cocaine[,]” should merge

at sentencing); Commonwealth v. Powell, 2013 WL 11256850 

[S]uppose a statute requires use of a “deadly 

weapon” as an element of a crime and further 

provides that the use of a “knife, gun, bat, or 

similar weapon” would all qualify. Because that 

kind of list merely specifies diverse means of 

satisfying a single element of a single crime – or 

otherwise said, spells out various factual ways of 

committing some component of the offense – a 

jury need not find (or a defendant admit) any 

particular item: A jury could convict even if 

some jurors concluded that the defendant used a 

knife while others concluded he used a gun, so 

long as all agreed that the defendant used a 

deadly weapon.

Mathis, 579 U.S. at 506 (citations omitted). 
13

at *4 (Pa. Super. Ct. July 24, 2013) (DUI convictions for 

multiple drugs should merge at sentencing). 

Because Pennsylvania state convictions merge only if 

“the statutory elements of one offense are included in the 

statutory elements of the other offense,” Commonwealth v.

Kemp, 2017 WL 657764 at *7 (Pa. Super. Ct. Feb. 17, 2017) 

(citing 42 Pa. Cons Stat. § 9765), it follows that any two 

violations of § 3802(d)(1), including § 3802(d)(1)(i), result 

from the defendant having twice satisfied the same elements of 

the crime, albeit, perhaps, by diverse means. 

In light of Pennsylvania caselaw and our own statutory 

interpretation of § 3802(d)(1)(i), the reasoning articulated by 

the BIA for upholding Pesikan’s removability, and the 

government’s additional arguments on appeal, are unavailing. 

The BIA concluded that the statute was divisible “as to the 

identity of the controlled substance involved” based on two 

considerations. (App. at 6-7.) It first looked to the 

Pennsylvania Suggested Standard Jury Instructions for DUI 

offenses, which ask the Commonwealth to identify the 

controlled substance at issue.10 In pertinent part, the suggested 

instruction provides: 

To find the defendant guilty of driving under the 

influence of controlled substances, you must be 

satisfied that the following two elements have 

been proven beyond a reasonable doubt: 

10 The government echoes the BIA’s contention 

regarding jury instructions: “Pennsylvania model jury 

instructions require that the specific substance be identified[.]” 

(Answering Br. at 21.) 
14

First, that the defendant drove, operated, or was 

in actual physical control of the movement of a 

vehicle upon a highway or trafficway. 

Second, that at the time the defendant drove, 

operated, or was in actual physical control of the 

vehicle, the defendant’s blood contained any 

amount of [a Schedule I, II, or III controlled 

substance.] I hereby instruct you that [name of 

drug] is a [Schedule I, II, or III controlled 

substance.] 

Pennsylvania Suggested Standard Criminal Jury Instructions 

17.3802(d)(1) (2016). Based on that instruction, the BIA 

determined that “the State must prove the substance involved 

in the offense to obtain a conviction for driving under the 

influence of [sic] controlled substance ... such that it is an 

element of the offense[.]” (A.R. at 5.)

The BIA’s reliance on that suggested jury instruction is 

misplaced. For one thing, the Pennsylvania Supreme Court has 

held, at least in the civil context, that the form instructions are 

not binding law. Cowher v. Kodali, 283 A.3d 794, 808 (Pa. 

2022) (“Defendants’ reliance on Pennsylvania’s Suggested

Standard Civil Jury Instructions is misplaced. The suggested

instructions are not binding. Rather, as their title suggests, the

instructions are guides only.”) (cleaned up). There is no reason

to believe that the instructions are any more binding in the

criminal context than they are in the civil.

11

 And, of course,

11 The government cited our opinion in Larios v. 

Attorney General, 978 F.3d 62, 68-69 (3d Cir. 2020), for the 
15

the focus at step one of the divisibility analysis is on the text of

the statute itself. See Mathis, 579 U.S. at 505 (“[The Supreme]

Court [has] approved the ‘modified categorical approach’ for 

use with statutes having multiple alternative elements.”) 

(emphasis added); id. at 505-06 (explaining that a court, after

finding that a statute is divisible, may look “to a limited class 

of documents (for example, the indictment, jury instructions, 

or plea agreement and colloquy) to determine what crime, with 

what elements, a defendant was convicted of”).

In further support of its ruling, the BIA cited our 

decision in Singh v. Attorney General, which held that a 

Pennsylvania statute criminalizing possession of a controlled 

substance with intent to manufacture or deliver, 35 Pa. Cons.

Stat. § 780-113(a)(30), was divisible by the identity of the 

substance. 839 F.3d at 284. While the BIA acknowledged that 

our opinion in Singh addressed “another Pennsylvania 

controlled substance offense[,]” (App. at 5), the government 

broadly construes Singh as establishing that “incorporation of 

Pennsylvania’s controlled substance schedules creates 

multiple separate offenses rather than inconsequentially 

illustrating various means of committing a single, unified 

offense[.]” (Answering Br. at 29.) 

proposition that “[m]odel jury instructions and charges, too, 

can illuminate which terms in a statute are elements that must 

be charged by a prosecutor and either found by a jury or 

admitted in a plea.” (Answering Br. at 27.) But we explicitly 

stated that we were basing our decision in that case on an 

“authoritative source in a New Jersey Superior Court 

decision.” Larios, 978 F.3d at 68.
16

That is plainly wrong. We held in Singh that a particular 

statute, 35 Pa. Con Stat. § 780-113(a)(30), was divisible 

because the Pennsylvania Superior Court had previously so 

held and because, under that statute, the penalty fluctuates 

depending on the identity of the controlled substance at issue. 

Singh, 839 F.3d at 283-84. We did not hold that all

Pennsylvania statutes incorporating Pennsylvania’s controlled 

substance schedules are divisible. Moreover, neither of the two 

bases for our decision in Singh are present here: the parties 

have not identified a Pennsylvania state court decision 

conducting a divisibility analysis of the DUI statute,12 and the 

DUI statute’s penalty does not vary depending on the identity 

of the controlled substance at issue. 

The government, in addition to echoing the BIA’s 

rationales, makes two additional arguments. First, it points to 

the Pennsylvania Superior Court’s opinion in Commonwealth 

v. Swavely, 554 A.2d 946 (Pa. Super. Ct. 1989) – the case on 

which we relied to reach our holding in Singh – as an 

authoritative source of state law “indicat[ing] that each 

Schedule I controlled substance incorporated into [the DUI 

statute] creates a separate crime such that the statute is divisible 

by the identity of the specific substance charged.” (Answering 

Br. at 28-29.) Specifically, the government asserts that 

Swavely’s holding that 35 Pa. Cons. Stat. § 780-113(a)(30)

contains alternative elements, “i.e.[,] the particular controlled 

12 Indeed, as already noted, Superior Court case law 

indicates that the statute is indivisible, given the application of 

the merger-of-sentences doctrine in cases involving 75 Pa. 

Cons. Stat. § 3802(d)(1). See, e.g.,. Westlake, 295 A.3d at 

1289; Given, 244 A.3d at 512; Powell, 2013 WL 11256850 at 

*4 (Pa. Super. Ct. 2013).
17

substance[s],” 554 A.2d at 949, was based “not only on [35 Pa. 

Cons Stat.] § 780-113(f)’s punishment provisions[,] but on the 

structure of state controlled substance schedules themselves[.]” 

(Answering Br. at 30.) 

The government fails to mention, however, that Swavely

expressly grounded its holding on the fact that the 

Pennsylvania legislature, “[r]ecognizing that there are 

significant differences between controlled substances, ...

authorized punishments [in § 780-113(f)] which correspond 

with the relative threat to the community posed by an 

unauthorized possession, use, or transfer of the controlled 

substance involved.” 554 A.2d at 950. That language shows 

that Swavely relied on the punishment provisions in § 780-

113(f) – provisions for which there are no analogues in the 

present case – in reaching its means-or-elements

determination.

Second, the government contends that because 

Pesikan’s bill of information charged him with driving under 

the influence of marijuana, the identity of the controlled 

substance as marijuana was necessarily an element of his 

offense. That argument conflates the categorical approach’s 

divisibility analysis with the permitted scope of the 

government’s evidence. While the government correctly notes 

that the scope of its proof on Count 2 was limited to showing 

that some amount of marijuana – as opposed to some other 

controlled substance – was present in Pesikan’s blood, the 

government-drafted charging instrument cannot add to or 

subtract from the elements of a statutory crime. See United 

States v. Tucker, 703 F.3d 205, 215-16 (3d Cir. 2012) (“In 

criminal trials the proof offered by the Commonwealth must 

measure up to the charge made in the indictment.”) (quotation 
18

omitted); id. at 215 (explaining that because the defendant 

“was specifically charged with [possession with intent to 

distribute cocaine], the trial judge was [required] to find that 

[he] possessed cocaine in order to convict”).

In sum, because the identity of the specific controlled 

substance is not an element of the Pennsylvania DUI statute, 

the state statute of conviction is indivisible and cannot serve as 

the basis for Pesikan’s removal under the INA.

III. CONCLUSION

For the foregoing reasons, we will grant Pesikan’s 

Petition for Review in case number 21-1262 and will reverse 

the order for removal. We will dismiss Pesikan’s Petition for 

Review in case number 20-3307.