NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CANDIDO GONZALEZ-DOMINGUEZ,

AKA X. Chico, AKA Jose Luis Cuevas, 

AKA Juan Carlos Enrique, AKA Carlos 

Juan Enriquez, AKA Carlos Gonzalez, 

AKA Juan Carlos Horigua, AKA Chico 

Moniker,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent-Appellee.

No. 15-72814

Agency No. A074-208-146

MEMORANDUM*

On Petition for Review of a Final Order of the 

Board of Immigration Appeals

Argued and Submitted April 3, 2017

Pasadena, California

Resubmitted August 2, 2018

Before: WARDLAW and CALLAHAN, Circuit Judges, and KENDALL,**

District Judge.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Virginia M. Kendall, United States District Judge for the 

Northern District of Illinois, sitting by designation.

FILED

AUG 2 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Candido Gonzalez-Dominguez, a native and citizen of Mexico, petitions for 

review of the Board of Immigration Appeals’s (“BIA”) order affirming its decision 

that Gonzalez was ineligible for cancellation of removal because his conviction fell 

within the definition of an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and 

(U). We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s decision, 

which involved a purely legal question, de novo. See Medina–Lara v. Holder, 771 

F.3d 1106, 1117 (9th Cir. 2014).

1. Pursuant to 8 U.S.C. § 1229b(a)(3), the Attorney General may cancel the 

removal of a lawful permanent resident who has not been convicted of an 

aggravated felony, which the Immigration and Nationality Act (“INA”) defines as

including “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), as well as a “conspiracy to commit” that offense,

id. § 1101(a)(43)(U).

Gonzalez pleaded guilty under Arizona Revised Statute § 13-1003 to 

conspiracy to transport dangerous drugs for sale, a class 2 felony, in violation of 

Arizona Revised Statute § 13-3407(A)(7). Section 13-3407(A)(7) makes it illegal 

for an individual to knowingly “[t]ransport for sale, import into this state or offer to 

transport for sale or import into this state, sell, transfer or offer to sell or transfer a 
3

dangerous drug.” Ariz. Rev. Stat. § 13-3407(A)(7). Arizona Revised Statute

§ 13-3401(6) provides a schedule of dangerous drugs.

To determine whether Gonzalez’s state law conviction is an aggravated 

felony for purposes of the INA, the Court first asks whether the Arizona statutes at 

issue—Arizona Revised Statute § 13-1003 (conspiracy), § 13-3407(A)(7) 

(transportation of dangerous drugs), and § 13-3401(6) (list of dangerous drugs)—

are categorical matches to the generic federal offenses. United States v. MartinezLopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc), cert. denied, 138 S. Ct. 523

(2017). If the Arizona statutes are broader than the corresponding generic federal 

offenses, we look to whether the state statutes are divisible—that is, whether they

“set[] out one or more elements of the offense in the alternative,” Descamps v. 

United States, 570 U.S. 254, 257 (2013), instead of merely “enumerat[ing] various 

factual means of committing a single element.” Mathis v. United States, 136 S.

Ct. 2243, 2249 (2016). To determine whether a statute is divisible, we look first 

to controlling state law. Martinez-Lopez, 864 F.3d at 1039. When a state court 

decision that “definitively answers the question” has not been issued, we look to 

the plain language of the statute to see if the disjunctive list: (1) identifies what 

must be charged (elements); (2) identifies what alternatives carry different 
4

punishments (elements), or (3) includes an illustrative list (means). Mathis, 136 S.

Ct. at 2256.

If any of the statutes at issue are overbroad and indivisible, the inquiry ends

and the conviction cannot be considered an aggravated felony. Martinez-Lopez, 

864 F.3d at 1039. If a statute is overbroad but divisible, however, we apply the 

modified categorical approach and look to “judicially noticeable documents of 

conviction to determine which statutory phrase was the basis for the conviction” to 

determine if Gonzalez’s conviction is for an aggravated felony. Id. (internal 

quotation omitted).

The Arizona conspiracy statute at issue, Arizona Revised Statute § 13-1003,

is a categorical match to the generic federal definition of conspiracy under the 

INA, 8 U.S.C. § 1101(a)(43)(U). Section 13-1003 and the generic federal 

definition have the same three elements: (1) intent to promote or aid the 

commission of an offense; (2) an agreement to engage in the offense; and (3) an 

overt act. Ariz. Rev. Stat. § 13-1003; United States v. Garcia-Santana, 774 F.3d 

528, 534–35 & n.4 (9th Cir. 2014).1

 

1

Instead of applying the generic federal definition of conspiracy which is 

applicable here, Petitioner, relying on our decision in United States v. RiveraConstantino, 798 F.3d 900 (9th Cir. 2015), urges the Court to apply the definition 

of conspiracy “applicable in the context of a conspiracy to . . . violat[e] 21 U.S.C. 

841(a)(1)” under 21 U.S.C. § 846, which does not include an overt act 
5

2. We next turn to Arizona Revised Statute § 13-3407(A)(7), which makes 

it illegal for an individual to knowingly “[t]ransport for sale, import into this state 

or offer to transport for sale or import into this state, sell, transfer or offer to sell or 

transfer a dangerous drug.” Ariz. Rev. Stat. Ann. § 13-3407(A)(7). Petitioner 

challenges the divisibility of both the statute’s actus reus and dangerous drug 

requirements.

The government concedes that the actus reus component of Arizona Revised 

Statute § 13-3407(A)(7) is overbroad because “importing a dangerous drug into

Arizona” is not an aggravated felony under § 1101(a)(43)(B) because 

“importation” lacks a trafficking element. Nevertheless, the government 

maintains that the statute is divisible. Based upon controlling state law and the 

plain language of the statute, we agree.

In State v. Cheramie, 189 P.3d 374 (Ariz. 2008), the Arizona Supreme Court

determined that simple possession under § 13-3407(A)(1) is a lesser-included 

offense of transportation for sale pursuant to § 13-3407(A)(7). Id. at 376. In 

 

requirement. Following Petitioner’s approach would undermine Garcia-Santana

by creating at least two different generic definitions of conspiracy applicable under 

different circumstances, depending on the object of the conspiracy. Furthermore, 

in Rivera-Constantino, we recognized that the definition of conspiracy in § 846

was “materially different” from the generic definition of conspiracy applicable to

the INA and that the “context is entirely different.” 798 F.3d at 906.
6

doing so, the Court found that to prove transportation for sale, the state must prove 

that the defendant (1) knowingly (2) transported (3) a dangerous drug (4) for sale. 

Id. The Court, which referred to the “transportation for sale” element as a distinct 

crime, noted that the ordinary definition of transport is “to carry, move, or convey 

from one place to another” but did not define “transport” as including any of the 

other distinct actus rei components of § 13-3407(A)(7). Id. Although some of 

the actus rei of § 13-3407(A)(7) (e.g., import, transfer) could potentially be read to 

fall within the Court’s definition of “transport,” other components of § 13-

3407(A)(7), including “offering to transport,” “sell” and “offer to sell” do not 

include a transportation element, which indicates that the actus reus requirement of 

the statute is composed of distinct, and therefore divisible, elements. At least one 

of the unpublished Arizona Appellate Court decisions cited by Petitioner supports 

this conclusion. See State v. Bradley, No. 2 CA-CR 2015-0296, 2016 WL 

4547161, at *3 (Ariz. Ct. App. Aug. 31, 2016) (noting that offering to transfer 

drugs under Section 13-3407(A)(7) “could be committed without necessarily 

possessing methamphetamine,” while other actus rei components of § 13-3407, 

like transporting for sale, necessarily require possession).

3. We next move to the divisibility of the dangerous drug requirement of 

§ 13-3407(A)(7). The parties agree that Arizona’s “dangerous drugs” schedule, as 
7

detailed in Arizona Revised Statute § 13-3401(6), is overbroad, as it classifies at 

least one substance as a dangerous drug that was not listed in the relevant 

Controlled Substances Act schedules at the time of Gonzalez’s conviction.

The government, however, urges us not to reach the merits of this argument, 

because Gonzalez failed to adequately present the argument before the BIA. We 

disagree. In a footnote in one of his briefs before the BIA, Gonzalez outlined his

argument that Arizona’s list of dangerous drugs was overbroad and indivisible. 

Although the BIA did not address the issue, Gonzalez’s argument was sufficiently 

detailed to satisfy his obligation to exhaust his administrative remedies. See 

Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 873–74 (9th Cir. 2008) (finding that 

petitioner provided BIA with sufficient notice of his challenge even though his 

brief focused on a different part of the aggravated felon definition).

4. Unlike the California statute we examined in Martinez-Lopez, there is no 

controlling state law definitively answering whether the dangerous drug 

requirement of § 13-3407(A)(7) is divisible, and the plain language of the statute 

does not clarify the matter. The authority cited by both parties is mixed and some 

is non-precedential. Although the relevant pattern jury instruction supports the 

conclusion that the dangerous drug requirement is indivisible, as the government 

points out, the Arizona Supreme Court does not draft or approve the Arizona 
8

pattern instructions. See State v. Logan, 30 P.3d 631, 633 (Ariz. 2001). When

state law fails to provide clear answers as to the divisibility of a statute, courts can 

‘peek’ at the petitioner’s conviction record for “‘the sole and limited purpose of

determining whether [the listed items are] element[s] of the offense.’” Mathis,

136 S. Ct. at 2256-57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 

2015) (Kozinski, J., dissenting from denial of reh’g en banc)). Such a peek at the 

record supports the conclusion that the dangerous drug component is divisible.

2

 

5. Because the actus reus and dangerous drug components of § 13-

3407(A)(7) are divisible, we apply the modified categorical approach to determine 

if Gonzalez’s conviction is an aggravated felony. An examination of Gonzalez’s

conviction records, which extends to the charging documents, plea agreement and

plea colloquy, makes clear that Gonzalez was convicted of conspiracy to transport

for sale methamphetamine, which qualifies as an aggravated felony under the INA. 

See 21 U.S.C. §§ 802(6), 812.

PETITION DENIED.

 

2 The Petitioner also urges the Court to find Arizona’s definition of 

methamphetamine to be overbroad because Arizona does not exempt 

Levmetamfetamine (“L-Meth”), an isomer of methamphetamine, from its 

definition whereas L-Meth is exempt from criminalization under the CSA when it 

is found in an inhaler. We already rejected this argument in United States v. 

Vega-Ortiz, 822 F.3d 1031, 1035–36 (9th Cir. 2016).