IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60183

JORGE IBANEZ-BELTRAN, 

 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL, 

 Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A077 187 038

Before JONES, BARKSDALE, and COSTA, Circuit Judges.

PER CURIAM:*

The Government charged Jorge Ibanez-Beltran, a citizen of Mexico, with 

being removable from this country, due in part to his Arizona conviction for 

attempted transportation of marijuana for sale under Arizona Revised Statute 

Section 13-3405(A)(4). Ibanez-Beltran concedes that this offense makes him 

removable, but denies that it also qualifies as an aggravated felony that makes 

him ineligible for cancellation of removal. He argues that the Arizona statute

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 11, 2017

Lyle W. Cayce

Clerk

 Case: 15-60183 Document: 00513831253 Page: 1 Date Filed: 01/11/2017
No. 15-60183

2

is neither a categorical match to a qualifying federal drug trafficking offense 

nor divisible. We must decide whether section 13-3405(A)(4) is divisible, and, 

if so, whether the modified categorical approach confirms that Ibanez-Beltran 

was convicted of an aggravated felony. 

* * *

Ibanez-Beltran was placed in removal proceedings after his conviction 

under Arizona Revised Statute Section 13-3405(A)(4). The statute states that 

a “person shall not 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 marijuana.” A.R.S. § 13-3405(A)(4). His indictment charged all of 

these provisions, but his plea document and judgment listed only “attempted 

transportation of marijuana for sale.” 

Ibanez-Beltran conceded he was removable for violating a state law 

relating to a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)(i), but he 

denied being ineligible for relief on the grounds that his marijuana conviction 

qualified as an aggravated felony, 8 U.S.C. § 1101(a)(43)(B). The Immigration 

Judge disagreed, concluding that Ibanez-Beltran was ineligible for relief 

because his Arizona conviction was an aggravated felony. 8 U.S.C. 

§ 1229b(a)(3). The Board of Immigration Appeals affirmed. 

An aggravated felony is defined by a long list of offenses that includes 

“illicit trafficking in a controlled substance, including a drug trafficking crime.” 

8 U.S.C. § 1101(a)(43)(B). An offense is a drug trafficking crime if it is 

punishable as a felony under the federal Controlled Substances Act (CSA). 18 

U.S.C. § 924(c)(2); 21 U.S.C. § 801 et seq. An offense is a felony under the CSA 

if it is punishable by imprisonment of more than one year. 21 U.S.C. 

§§ 802(13), (44). The government argues that Ibanez-Beltran was convicted of 

“attempted transportation of marijuana for sale” under Arizona law. The 

federal counterpart for attempted transportation of marijuana is punishable 

 Case: 15-60183 Document: 00513831253 Page: 2 Date Filed: 01/11/2017
No. 15-60183

3

by imprisonment of more than one year. 21 U.S.C. §§ 841(b)(1)(D), 846. This 

means that if Ibanez-Beltran was convicted of the state offense of “attempted 

transportation of marijuana for sale,” he was convicted of an aggravated felony. 

Ibanez-Beltran counters that because the Arizona statute of conviction 

includes solicitation offenses, namely “offer to transport,” the statute is not a 

categorical match to the federal drug trafficking offense. He further argues 

that his statute is not divisible. That would mean Ibanez-Beltran was not 

convicted of an aggravated felony and the Board of Immigration Appeals erred 

in deeming him ineligible to request cancellation of removal. 

When determining whether a prior offense qualifies as an aggravated 

felony, we first apply the categorical approach, asking whether the state 

criminal offense lines up with the corresponding aggravated felony, which here 

is attempted drug trafficking. Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 

(2013). That determination is made by comparing the elements of the state 

offense with the elements of the federal drug trafficking offense. Id.; Taylor v. 

United States, 495 U.S. 575, 600–01 (1990). That comparison is 

straightforward when a statute sets out a single set of elements to define a 

single crime. 

Here the comparison is not so simple because Ibanez-Beltran’s statute of 

conviction lists multiple actus rei. The statutory provision states that a person 

shall not knowingly: 1) transport [marijuana] for sale; 2) import [marijuana] 

into this state; 3) offer to transport [marijuana] for sale; 4) offer to import 

[marijuana] into this state; 5) sell [marijuana]; 6) transfer [marijuana]; 7) offer 

to sell [marijuana]; or 8) offer to transfer [marijuana]. A.R.S. § 13-3405(A)(4) 

(numbering added). The government conceded that the statute as a whole is 

not a categorical match to the federal offense of drug trafficking, because it 

lists solicitation offenses that are not covered in the federal definition. United 

States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010) (“The government 

 Case: 15-60183 Document: 00513831253 Page: 3 Date Filed: 01/11/2017
No. 15-60183

4

concedes that a mere offer to sell, without evidence of possession or transfer, is 

tantamount to solicitation and is not proscribed by the [CSA].”). Our decision 

thus comes down to whether the modified categorical approach can be used to 

narrow Ibanez-Beltran’s conviction to attempted transportation of marijuana 

for sale, which would be a felony under the federal drug laws.

The modified categorical approach allows courts to examine “a limited 

class of documents” from the record to determine whether the defendant was 

convicted of an offense that matches the corresponding federal offense. 

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Courts may only use 

the modified approach, though, when the statute of conviction is divisible. A 

statute is divisible when it defines multiple crimes by listing elements in the 

alternative instead of listing various factual means of committing a single 

crime. Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016). Our task 

when determining whether a statute is divisible, then, “is to determine 

whether ‘listed items’ in a statute ‘are elements or means.’” United States v. 

Hinkle, 832 F.3d 569, 575 (5th Cir. 2016) (quoting Mathis, 136 S. Ct. at 2256). 

This ultimately turns on whether a jury would have to agree on whether the 

defendant completed that action. Id. (“When a jury is not required to agree on 

the way that a particular requirement of an offense is met, the way of satisfying 

that requirement is a means of committing an offense, not an element of the 

offense.”). When state court decisions definitively answer whether jury 

unanimity is required, courts “need only follow what [they say].” Mathis, 136 

S. Ct. at 2256. 

Arizona case law does not provide that definitive answer here. Some 

state law decisions indicate that section 13-3405(A)(4) sets out multiple 

alternative offenses. For example, State v. Fierro lays out elements for the 

“offense of transportation of marijuana for sale.” 206 P.3d 786, 789 (Ariz. Ct. 

App. 2008). And State v. Chabolla-Hinojosa notes that the defendant was 

 Case: 15-60183 Document: 00513831253 Page: 4 Date Filed: 01/11/2017
No. 15-60183

5

convicted of both importation of marijuana and transportation of marijuana. 

965 P.2d 94, 95 (Ariz. Ct. App. 1998); see also State v. Alvarado, 875 P.2d 198, 

200 (Ariz. Ct. App. 1994) (noting that defendant was convicted of “offering to 

sell marijuana”); State v. Hans, 2008 WL 4261034, at *4 (Ariz. Ct. App. 2008); 

but see State v. Medina, 2016 WL 489838, at *1 (Ariz. Ct. App. 2016) (affirming 

defendant’s conviction for “sale or transportation of marijuana”). These courts’ 

treatment of section 13-3405(A)(4) suggests that the statute is divisible.1

But some Arizona decisions interpreting similar statutes point in the 

other direction. Arizona courts have assumed that the legislature does not 

intend to create more offenses than those listed in the heading of a statute. 

State v. Brown, 177 P.3d 878, 881 (Ariz. Ct. App. 2008) (citing State v. Dixon, 

622 P.2d 501, 508 (Ariz. Ct. App. 1980)). Instead, courts in Arizona assume 

that if the legislature intended to create separate offenses, it would have 

enacted separate subparts as it did in other parts of section 13-3405(A). See

State v. Manzanedo, 110 P.3d 1026, 1028 (Ariz. Ct. App. 2005). The heading 

of section 13-3405 reads: “Possession, use, production, sale or transportation of 

marijuana.” Although this heading implies that sale and transportation are 

separate offenses, it cuts against finding that the other terms, for example 

“offer to transport,” are themselves separate offenses. Instead, they could be 

alternative means to commit either sale of marijuana or transportation of 

marijuana. 

 

1 The Supreme Court of Arizona has recognized that the separate subsections of this 

drug statute create different offenses. State v. Cota, 191 Ariz. 380, 382, 956 P.2d 507, 509 

(1998) (“[T]he relevant statutes distinguish between the separate crimes of ‘transfer,’ on the 

one hand, and ‘possession,’ on the other.” (citing A.R.S. § 13-3405(A)(1); id. § 13-3405(A)(4)). 

It has not directly addressed the question we confront: whether the various terms listed 

within a particular subsection (in Ibanez-Beltran’s case, subsection (A)(4)) also create 

separate offenses. 

 Case: 15-60183 Document: 00513831253 Page: 5 Date Filed: 01/11/2017
No. 15-60183

6

And an Arizona court has held that solicitation terms in a similarly 

worded statute were alternative means, not elements, to commit the offense. 

In Brown, the court examined an almost identically worded statute that 

prohibited the knowing “[t]ransport for sale, import into this state, offer to 

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

transfer a narcotic drug.” A.R.S. § 13-3408(A)(7); see Brown, 177 P.3d at 881–

82.2 The court focused on whether “sell, transfer or offer to sell or transfer” 

were separate offenses or alternative means to commit the same offense. 

Brown, 177 P.3d at 881–82 (quoting A.R.S. § 13-3408(A)(7)). It noted that 

section 13-3408’s heading mentioned “‘sale’ . . . of narcotic drugs” but did not 

reference transfer, offer to sell, or offer to transfer. Id. at 881. Assuming that 

the legislature did not intend to create more offenses than those listed in the 

heading, the court held that the relevant phrase referred to different ways of 

committing the same offense. Id. at 882. In other words, the legislature did 

not view the solicitation terms as creating separate offenses. 

So Arizona state law does not give us a clear answer on the construction 

of section 13-3405(A)(4). But Mathis provides us with another tool when state 

judicial decisions do not furnish an answer; we may look to the record of the 

prior conviction for “the sole and limited purpose of determining whether the 

listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256–57. 

Ibanez-Beltran’s plea agreement and judgment treats the terms in section 13-

3405(A)(4) as elements of alternative offenses. Although the indictment simply 

listed all of the conduct contained in the statute, Ibanez-Beltran actually 

pleaded guilty to “attempted transportation of marijuana for sale.” When the 

relevant documents use one alternative term to the exclusion of all others, that 

 

2 Section 13-3408(A)(7) is identical to section 13-3405(A)(4), except section 13-

3408(A)(7) targets narcotic drugs rather than marijuana. 

 Case: 15-60183 Document: 00513831253 Page: 6 Date Filed: 01/11/2017
No. 15-60183

7

indicates that the terms within the statute are individual elements. Id. at 

2257. 

Reinforcing the plea agreement’s treatment of transport for sale as a 

separate offense is Arizona’s pattern jury charge. See id. at 2257 (mentioning 

jury instructions as a source to determine divisibility); see also United States 

v. Martinez-Vidana, 825 F.3d 272, 274 (5th Cir. 2016) (considering a pattern 

jury instruction to determine the divisibility of a statute). There are separate 

pattern instructions for transport for sale and offer to transport for sale. 

Compare REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0541 (3d ed.), with

REV. ARIZ. JURY INSTRUCTIONS (CRIMINAL) 34.0542 (3d ed.). 

The plea agreement, judgment, and instructions are enough, without 

settled state law to the contrary, to hold that section 13-3405(A)(4) is divisible. 

Because the statute is divisible, the modified categorical approach narrows 

Ibanez-Beltran’s offense to “attempted transportation of marijuana for sale.” 

As discussed, that offense also constitutes a felony under the federal drug laws, 

making it a drug trafficking crime, which is an aggravated felony under section 

1101(a)(43)(B). 

* * *

The petition for review is DENIED. 

 Case: 15-60183 Document: 00513831253 Page: 7 Date Filed: 01/11/2017