F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L E O N E L S A

N D O V A L , AKA L ione Sandoval, P etitioner
,

v

.

S A L L Y Q. Y A T E S , * Acting Attorney General, Respondent. N o. 13-71784

Ag ency No. A090-808-120

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg u ed and Submitted November 8, 2016

Portland, Oreg on

F iled J anuary

27, 2017

B efore: M. Marg aret McKeown, W illiam A. F letcher and Ray mond C. F isher, Circuit J udg es.

O pinion by

J udg e F isher

* S ally Q. Yates is su

b s titu ted f

or h er p red ecesso r, L o retta E. L y n ch
, as A ctin g A tto rn ey Gen eral o f th e U n ited States, p u rsu an t to F ed

. R

. A p p

. P . 4 2 (c)(2 ).S A N D O V A L V

. Y A T E S 2

SUMMARY * *

Im m igration

The panel g ranted L eonel Sandoval’s petition for r eview of the B oard of I mmig ration Appea l s ’ decision finding him inelig ible for cancellation o f removal based on his conviction for delivery o f a controlled substance under Oreg on Revised Statutes § 475.992(1)(a), and remanded.

The panel held t h a t t he O reg on law is n ot a categ orical
ag g r avated felony
, b ec ause its definition of “delivery ” includes mere solic i tation, and the federal Controlled Substances Act does not punish soliciting delivery o f controlled substances. The panel further held that because no “commercial element” is included in the Oreg on statute, it is not a categ orical match to an “illicit trafficking ” offense.

The p anel also held that the modified categ orical

a p p roach does not apply because the Oreg on la w i s indivisible with r e spect to whether an “attempt” is accomplished by

solicitation.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S A N D O V A L V

. Y A T E S 3

COUNSEL

B rian Patrick Conry ( ar g ued), Portland, Oreg on, for Petitioner.

Song E. Park (arg

ued), Senior L itig a tion Counsel; Ci n dy S. F errier, Assistant Director; Office of I mmig ration L itig ation, Civil Division, United States D epartment of J u s t i ce, W a shing ton, D.C.; for Respondent.

OP INION

F I SHER, Circuit J udg e :

S a n doval was convicted of delivery of a controlle d substance u n der Oreg o n Revised Statutes § 475.992(1)(a). 1 Oreg on law permits conviction for delivery under this statute based on mere solicitation. Be c a u se the Controlled Substances Act does not punish soliciting delivery o f controlled substances, § 4 75.992(1)(a) cannot be a c a t eg orical

m a t c h t o a n aggr a v a t e d f e l o n y u n d e r 8 U

. S

. C

. § 1227(a)(2)(A)(iii). F u rther, b ecause § 4 75.992(1)(a) is indivisible, the modified categ orical approach does not apply

. Therefore, we g rant Sandoval’s petition an d r emand for further proceeding s.

I

L eonel Sandoval moved to the U nited States from Mex ico when he was nine y ears old. He adjusted to lawful p ermanent

1 T h is sta tu te is cu rren t ly co d if ied at Oreg o n Rev ised Statu tes § 4 7 5 .7 5 2

.S A N D O V A L V

. Y A T E S 4

resident status in 1 9 90. His wife of o v er 26 y ears and two children are United States citiz ens.

I n 1 998, Sandoval was conv i c t e d of delivery of a

con trolled substance under Oreg on law. The indictment identified the c ontrolled substance a s heroin. H e performed community service a t a forest project a n d w a s placed on probatio n fo r two y ears. Since then, he has not been convicted of any

other criminal activity

. Twelve y e ars later, the g overnment instituted removal p roceeding s aga inst him. I t alleg e d two g rounds for r emoval based on Sandoval’s 1998 conviction: (1) that the conviction was an ag g ravated felony and (2) that t h e c onviction was r elated to a controlled substance. See 8 U.S.C. § 1 2 2 7 ( a)(2)(A)(iii), (B )(i). Under the second charg e, S a n d oval could seek cancellation o f removal based on his long -standing residence and family ties in the United States. B ut the first charg e made him inelig ible for such relief. See id. § 1 229b(a)(3). A ccording ly
, Sandoval
arg ued the g overnment h a d failed to offer clear a nd convincing ev idence h e was convicted of an ag g ravated felony because Oreg on’s statute is broad e r than a federal controlled substance offense g iven that it punis h e s s o l i c i t a t ion in a ddition to actual a

nd attempted delivery

. The I J a nd B I A rejected thi s arg ument, concluded he was inelig ible for cancellation of removal and ordered him removed.

Sandoval timely petition e d for review. W e have jurisdiction and review Sandoval’s petition de n ovo. See 8 U.S.C. § 12 5 2 ( a ) ( 2)(D); Daas v. Holder
, 620 F .3d 1050, 1053 (9th Cir. 2 0 1 0 ); see a lso Coronado-Durazo v. INS
, 123 F .3d 1322, 1324 (9th Cir. 1997). W e do not defer to an ag ency ’s interpretations o f s t a te law or provisions of the federal criminal code. See Hoang v. Holder
, 641 F

. 3d 1157, 1161 (9th Cir. 2011).S A N D O V A L V

. Y A T E S 5

II

To determine w hether a state criminal convi c t i on is an ag g r avated f

e l o ny , we must follow the “categ orical approach.” S

ee Descamps v. United States
, 1 33 S. Ct. 2276, 2281 ( 2013). Under this approach, we “ compare the elements of the statute forming the basis of the [petitioner’s] conviction with the elements of the ‘g eneric’ crime – i.e.
, the offense a s

c ommonly understood.” Id. O nly if the element s i n t h e petitioner’s statute o f conviction “are the same as, o r

narrower than, those of the g eneric offense” is the petitioner’s conviction a categ orical match. Id.

Under the ca t e g orical approach, w e first d etermine the definition o f the g eneric offense – here, an ag g ravated felony

. This requires us to navig ate a “ m a z e of statutory crossreferences.” Carachuri-Rosendo v

. H older
, 560 U.S. 563, 567 (2010). W e start with the defin ition of “ag g ravated felony ” as used in 8 U.S.C. § 1101(a)(43).

The term “ag g ravated felony ” includes two federal controlled sub s t a n ce offenses relevant to this appeal: (1) “ illicit trafficking in a c ontr o lled substance,” which includes ( 2) a n y “drug trafficking crime.” 8 U .S.C. § 1101(a)(43)(B ). Only f e l o nies qualify as “illicit trafficking ” offenses or “drug t r a f f icking crime[ s] .” See Lopez v. Gonzales
, 549 U.S. 47, 5 5
, 60 (2006). A “felony ”

means an offense punishable by m o r e t han o n e y ear under federal law. See 18 U.S.C. § 3559(a)(5); see also Moncrieffe

v. H older
, 133 S. Ct. 1678, 1683 (2013); Lopez
, 549 U.S. at 60 (“In sum, we hold that a state offense constitutes a ‘felony punishable under the Contr o l l e d Substances A ct’ only if itS A N D O V A L V

. Y A T E S 6

proscribes conduc t punishable as a felony under that federal law.”). 2

The elements o f an “illicit trafficking ” offense a r e n ot statutorily defined. S

ee 8 U.S.C. § 1101. B ut the Supreme Court has said an illicit trafficking offense includ e s “ s o me sort of commercial dealing .” Lopez
, 5 4 9 U.S. at 53; see also Carachuri-Rosendo , 560 U.S. at 574.

The elem e nts of a “drug trafficking crime” are more readily determined. Drug trafficking crimes include felonies punishable u n der the Controlled Substa n c e s Act. See 8 U.S.C. § 1 101(a)(43)(B ); 18 U.S.C. § 924(c) ( 2 )

. Because heroin is a f

ederally co n trolled substance, see 8 U .S.C. § 1101(a)(43)(B ); 21 U .S.C. §§ 8 02(6), 812(c)(sched. I )(b)(10), knowing ly distributing or possessing with intent to distribute heroin violates the Controlled Substances Act, see 21 U.S.C. § 841(a)(1). Doing so is a felony
, i .e. , a crime punishable by more than one y ear of imprisonmen t under federal law. See 21 U.S.C. § 841(b)(1) ( C )

. A c cording ly
, because distributing heroin is a drug trafficking crime, we must consider the meaning of “distribute.”

The term “distribute” means “ deliver.” See 2 1 U

. S .C. § 802(11). A nd “deliver” means “the actual, constructive, o r atte m p t ed transfer of a controlled substance or a listed chemical, whether or not there ex ists an a g ency relationship.” Id. § 802( 8). According ly
, one may commit a d rug

2 T h e Co n tro lled S u

bstan ces A ct def

i n es “ f elo n y ” as “ an y Fed eral or State o f f en se classif

ied b y ap plicab le Fed eral o r State law as a f elo n y .” 2 1 U.S.C. § 8 0 2 (1 3 ). B u t 1 8 U.S.C. § 3 5 5 9 (a) co n tro ls f o r i m m ig ratio n p u rp o s es. S

ee Mo n crieffe
, 13 3 S. C t. at 1 6 83 ; see a lso Ca ra ch u r iRo sen d o , 5 60 U.S. at 5 6 7

.S A N D O V A L V

. Y A T E S 7

trafficking crime by actually d elivering
, attempting to deliver or possessing with intent to deliver heroin.

B e cause Sandoval arg ues the Oreg o n statute under which h e was convicted criminaliz es solicitation, we must n e x t determine whether g eneric attempted delivery also in c ludes solicitation. The Controlled Substances Act does not define
t h e term “attempt.” See 21 U .S.C. §§ 802, 846. Nevertheless, a s the g overnment concedes, mere solicitation of controlle d substances does not constitute “ attempted” delivery u nder federal law. See United States v

. RiveraSanchez
, 247 F .3d 9 0 5
, 9 0 8–09 (9th Cir. 2001) (en banc), superseded on other grounds as stated in Guer r e ro-Silva v

. Holder
, 599 F .3d 1090, 1 0 92 (9th Cir. 2010); see also LeyvaLicea v. INS
, 1 87 F .3d 1147, 1150 (9th Cir. 1999); CoronadoDurazo
, 123 F .3d at 1325–26

. T h e Controlled Substances Act “does not mention solicitation,” u n like “ attempt” a nd “conspiracy .” Rivera-Sanchez
, 247 F

. 3 d at 909 (quoting Leyva-Licea
, 187 F .3d at 1150); see also Coronado-Durazo
, 123 F .3d a t 1 3 2 5 ; 21 U.S.C. § 846 (prescribing felony punishment for a ttempting or cons p i r ing to deliver a controlled substance). This is unsurprising
, as “solicitation” is the “act or an instance o f requesting or seeking to obtain something .” Solicitation
, Bl a c k ’s L aw Dictionary (10th ed. 2014). W hile strong ly c orroborative of intent to c ommit a crime, such a request does not cross the line b etween preparation and atte m p t

. S ee, e.g. , United States v

. Y o ssunthorn
, 167 F .3d 1267, 1272–73 (9 th Cir. 1 999) (ordering dru gs from a k nown supplier was not an attempt when there was no ag reement as to essential details reg arding the transaction).

Therefore, there are two federal o ffenses that may qualify

as ag g ravated felonies for the purposes of this case. The firstS A N D O V A L V

. Y A T E S 8

is an illicit traffi c king offense that must (1) contain a “commercial d e a l i ng ” element and (2) be punishable as a felony under f

ederal law. The second is a drug trafficking crime f or delivery of h er o i n satisfy ing the following elements: (1) k

nowing or intentional ( 2) delivery
, attempted delivery
, conspiracy to deliver o r possession with intent to deliver ( 3 ) h e roin. The latter offense may not be accomplished by merely soliciting delivery – i.e.
, offering delivery – of heroin. The nex t question is wh e t h e r Sandoval’s Oreg on statute of convictio n matches either federal definition.

S a ndoval was convicted of d elivering a controlled substance. His indictment identifies the controlled substance

as heroin and cites Oreg on Revised Statutes § 475.992. The only portion of that statute proscribing delivery o f h e roin
states:

[ I ] t is unlawful f

or any person to manufacture

or deliver a c o ntrolled substance. Any person who violates this subsection with res p e c t to: (a) A controlled s u b s tance in Schedule I
, is
g uilty of a . . . felony

.

Or. Rev. Stat. § 475.992(1)(a) (1 9 98). The term “deliver”

means “the a ctual, co n s t ructive or attempted transfer” of a controlled substance f

r o m one person to another. Id. § 475.005(8) (1998). “A perso n i s gu i l ty of an attempt to commit a crime when the person intent i o n a l l y eng ag es in conduct which co nstitutes a substantial step toward commission of the crime.” Id. § 161.405(1) (1998).

Under Oreg on law, solicitation – even without possession

– is a “ s u b stantial step toward committing the crime o fS A N D O V A L V

. Y A T E S 9

attempted delivery under ORS 475.992(1).” State v. S argent , 822 P.2d 726, 728 (Or. Ct. App. 1991); see also State v

. Lawrence
, 2 17 P.3d 1084, 1086 (Or. Ct. App. 2009). And, taking a substantial step toward committing the cr i m e o f attempted delivery by solicitation “constitutes delivery ” in Oreg on. S

argent , 822 P.2d at 728.

Sargent relied on State v. Self
, 7 06 P.2d 975 (Or. Ct. App. 1985), in concluding that mere solicitation sup p o r ted a conviction f

or delivery of controlled substances under § 475.9 9 2(1)(a). S

ee Sargent
, 8 22 P.2d at 728

. There, the defendant was convicted under Oreg on’s g eneric solicitation statute, Oreg on Revised Statutes § 161.435. See Self
, 706 P.2d at 977. The court set out the specific facts:

A t the time of the c ommission o f the i n s t a n t offense, defe n dant was serving a sentence in the L ane County J a il. W h ile at that facility
, he telephoned one Webb, w hose foster daug hter he k n ew, in an attempt to obtain W e bb’s help in securing $ 2000 for the release from jail of a third party , B rown. Defendant made about six phone calls, the first two to the foster d aug hter. During the fourth call, when asked b y W ebb about collateral, defendant for the first time said that, after his r e l e ase, B r own would g o to two places in Eug ene a nd
g et the money to repay Webb. Then, as a further reward, W ebb and B rown would g o to San F rancisco, w h e re B rown would obtain and g ive W ebb five kilos of cocaine.

Id. The defendant was convicted of “solicitation o f attempted delivery of an illeg al substance

. ” I d. The appellate courtS A N D O V A L V

. Y A T E S 10

affirmed, “holding that the f acts were sufficient to support his conviction.” Sargent , 822 P.2d at 728.

That the appellate court in Sargent concluded the facts o f Self were “ illustrative” is telling

. S e e i d

. The defendant in Self did n ot possess or even o ffer to deliver the cocaine. See Self
, 706 P.2d at 977. I nstead, he tried to arrang e the release of a third party , promising that same third party would obtain cocaine in ex chang e for assistance in the third party ’s release. See id. There was no ag r eement to accomplish this scheme. See id. F urther, the court recited no facts indicating the third party ’s willing ness to perform the promised cr i m i n a l acts. See id. Nevertheless, the appellate court in Sargent pointed
to S elf as the “illustrative” c a se supporting its conclusion that “delivery ” under § 475

. 992(1)(a) includes solicitation. Sargent
, 822 P.2d at 7 28. Thi s h olding has not been disturbed by

later Oreg on case law.

F or ex ample, in State v. Pollock
, 73 P.3d 297 ( O r

. C t

. App. 2003), the court reversed a pretri al order suppressing evidence ag ainst a defendant charg ed under § 4 7 5

. 9 9 2 for delivery of a controlled substance. There, an officer had been told by witnesses that the def e n d ant had tried to sell them ecstasy , a controlled substance. See id. a t 298. T h e trial court found that “an offer to sell a controlled substance is, standing alone, insufficient to establish probable cause to believe that

a n attempted transfer h as occurred.” Id. a t 299. T h e appellate court reversed:

W e conclude that offering to sell a controlled substan c e constitutes a substantial step toward a completed tra n s

f er ofthat substance. As the court ex plained in State v. W a l t e r s , 311 Or. 80, 85, 804 P

. 2 d 1164, cert. d e n. ,S A N D O V A L V

. Y A T E S 11

501 U

. S

. 1209, 111 S.Ct. 2807, 115 L .Ed.2d 979 (1991), “‘to b e a s u b s t a ntial step the act must b e “strong ly corroborative of the a ctor’s criminal purpose,”’

. . . i.e. , [ the] defendant’s conduct must (1) advance the criminal
purp o s e charg ed a

nd (2) provide some verification of the ex istence of that purpose.” (C i t a t ions omitted.) An offer to sell a controlled substa n c e meets the two-part test
t h e c o u r t i d

e n tified in W

alters. I t

“ s u b s t a n t i a l l y a d v a n c e s ” t h e g o a l o f completing the transac t ion. S ee id. An offer
to sell g oes bey o nd mere preparation a nd shows a c ommitment to co mpleting the transfer if the offer is accepted. Additionally
, the offer “provide[ s] some verification of the

ex istence of [ defendant’s criminal] purpose.” See id. Taking defendant at h is w ord, he would have immediately transferred the ecstasy to Andersen and Carver if they h ad accepted his o ffer. At a minimum, the officer reasonably could c onclude f rom defendant’s offer to sell a controlled substance that it was more likely

than not that he had intentionally taken a substantial step toward the completed transfer of that substance.

Id. at 300 ( a lterations in orig inal) (emphases a dded )

. T hus, under Oreg on law, the offer to sell a controlled substance is
enoug h to comple t e a substantial step toward an intended transfer, i.e.
, offering to sel l a controlled substance is an attempt under Oreg on l a w

. S e e i d. The same is not true under federal law. See Rivera-Sanchez
, 247 F .3d a t 908–09. According ly
, a statute that p unishes the mere offer of aS A N D O V A L V

. Y A T E S 12

c ontrolled substance is not an ag g ravated felony under th e categ orical approach. S

ee id. at 909.

The g overnment concedes that simply offering to deliver

a controlled substance is not an ag g ravated f e lony

. Nevertheless, it contends § 475.992(1)(a) does not punish simply offering a controlled substance, but requires more. I t relies on State v. Johnson
, 123 P.3d 304 (Or. Ct. App. 2005). W e are not persuaded.

I n Johnson
, the d e fendant was convicted of both attempted murder and solicitation to commit murder. See id. at 306. During phone conversations and in online chats, the defendant as k ed a f

riend to kill both his wife and d aug hter,
sug g esting methods for the murders a nd o ffering to make sure the friend would “never want for any thing ” if she did a s asked. See id. B ecause the sta t e h a d no e vidence o f a “concrete” plan outlined for the murder of his wife and child, the defendant arg ued the e v idence was insufficient to support

a solicitation or attempt c onviction. See id. a t 307– 0 8. The appellate court disag reed and affirmed his co n v i c t ion on appeal. See id. at 310. T he g ov e r n m e n t contends this case stands f or the proposition that mer e s o l icitation – simply offering to deliver a controlled substance – is not enoug h to convict under § 4 75.992(1)(a). W e d o n o t r e ad it that broadly

.

F irst, Johnson did not involv e a controlled substance offense under Oreg on law. See id. at 3 0 5. I n s t ead, it dealt with attempted m u rder and solicitation to commit murder.S A N D O V A L V

. Y A T E S 13

See id. at 306. 3 Thus, it is n ot clear whether Johnson is applicable here.

Second, even if J

ohnson is applicable, the standar d s the court outlined match those in Sargent :

I n State v. Sargent

. . . , we held that, “if a person solicits another to eng ag e in conduct constituting an ele ment of the crime o f delivery
, e.g. , to provide to th e p erson a controlled substance for the purpose o f distribution to third parties, the pe rson has attempted delivery

. . . . ” W e see no reason to depart fr o m that reasoning here, and we d e cline to hold that solicitation o f a knowin g age n t is categ orically d isqualified a s a “substantial step” under O R S 161.405. Rather, as the s t a t u t e p l a i n l y s t a tes, solicitation requires a “substantial step.” Solicitation of a g uil t y p e rson qualifies as a “substantial step” if, under the f a c t s, the defendant’s actions ex ceed mere preparation, advance the criminal purpose charg e d, a nd provide some verificat i on of the ex istence o f that purpose.

Id. at 309–10 (footnotes omitted). The appell a t e c o urt’s reasoning in Johnson was that solicitation is b o t h s trong evidence of criminal purpose a n d a substantial step toward accomplishing that purpose under Sargent

. See id. Nothing in Johnson requires a defendant to take some a ffirmative act

3 W e d o n o t co n s id er w

h eth er so licitatio n to co m m it m u rd er i s a n ag g rav ated f

elo n y

.S A N D O V A L V

. Y A T E S 14

to further the g oal of the requested criminal behavior o r specify how t h e c rime would take place. See id. at 308 (“[ The] details of how the c rime is to be committed need not be specified .”). 4 Johnson does not limit Sargent in any way

.

I n sum, the g overnment’s arg ument fails to acknowledg e Sargent ’s and Pollock ’s ex plicit statements that a conviction under § 475.992(1)(a) may b e supported by merely offering
to deliver co n t r o lled substances. See S argent , 822 P.2d at 728 (“W e conclude that, if a person solicits another to eng ag e in cond u c t c onstituting an e lement of the crime of delivery

. . ., the person has taken a substantial step toward committing the crime of a ttempted delivery

. . . [ and] [ u] nder that statute, the conduct c o n s t i tutes delivery .”); Pollock
, 73 P.3d at 300 (“W e conclude that offering to sell a contr o l l ed substance constitutes a s u b s t a ntial step toward a completed transfer o f that substance.”). As we have r epeatedly held, solicitation o f controlled substances is n ot an a g g ravated felony

. See, e.g. , Rivera-Sanchez , 247 F .3d at 909.

B e cause Oreg on’s d efinition o f “delivery ” includes solicitation, § 475.992(1)(a) is not a categ orical match to a “drug trafficking crime.” F urther, because no “commercial element” is included i n t he Oreg on statute, it also is not a categ orical match to an “illicit trafficking ” offense.

4 T h is w as ex em

p l if ied in S ta te ex r el. Ju ven ile Dep a rtmen t o f U n i o n C o u n ty v. Krieg er , 3 3 P .3 d 3 5 1, 3 5 2 (Or. C t. A p p

. 2 0 0 1 ), in w

h ich t h e Oreg o n ap p ellate co u rt affirm ed “ w ith o u t d iscu ssio n ” a co n v ictio n f or

so licitatio n

. T h ere, a m in o r ask ed sev eral stu d en ts to h elp h im “ b lo w u p

o r sh o o t u p ” th eir sch o o l. S

ee id

. A ll of t h ese req u ests w ere rej ected an d th e m i n o r “ n ev er p u rsu ed an y f u rth er d i s c us s io n ” o r p ro v id ed “ sp ecif ic
p lan s to carry o u t th e sh o o tin g o r b o m b in g .” Id

. Nev erth eless, t h e

m in o r’ s co n v ictio n f

o r so licitatio n

w as su m m arily af f irm ed b y th e co u rt. S ee id

.S A N D O V A L V

. Y A T E S 15

Therefore, Sandoval’s conviction for delivery of heroin does
not q ualify as an a g gr a v a t e d felony under the categ orical approach.

III

O u r inquiry does not end here, however. W e must nex t addres s whether the modified categ orical approach may be used to d etermine whether Sandoval’s c o nviction q ualifies a s an ag g ravated felony

. Only divisible statutes are subjec t to the modified categ orical a

pproach. See Lopez-Valencia v. Lynch
, 798 F .3d 863, 867–69 (9th Cir. 2 015) (holding Descamp s divisibility analy sis is a

pplicable i n the immig ration contex t). “[ D] ivisibility hing es on whether the jury must unanimously
ag ree on the fact critical to the federal statute.” Id. at 868–69. S u c h critical facts a

re “elements,” which are the “thing s the ‘prosecution must prove to sustain a c onviction.’” M athis v

. United S tates , 136 S. Ct. 2243, 2248 (2016) (quoting B lack’s L aw Dictionary

634 (10th ed. 2014)).

To resolve the question of whether statutory alternatives

are either elements or means, a court looks first to the statute itself and then t o t h e case law interpreting it. S ee id. at 2256

– 5 7; see also Almanza-Arenas v. Lynch
, 815 F .3d 469, 479–82 (9th Cir. 2016) (en banc). I f state law fails to answer the question, a court may look to Shepard documents, which
may be helpfu l i n determining divisibility

. See Mathis
, 136 S. Ct. a t 2256–57; see a lso Descamps
, 1 33 S. Ct. at 2284 (citing Shepard v. United States
, 544 U.S. 13, 25–26 (2005)). B ut if the statute, c ase l aw and Shepard documents fail to speak plainly as to w hether statutory alternatives are elements instead of means, the statute is indivisible and the modifiedS A N D O V A L V

. Y A T E S 16

categ orical approach has no application. See Mathi s , 136 S. Ct. at 2257; see also In re Chairez-Castrejon
, 26 I

. & N. Dec. 819, 819–20 (B I A 2016) ( holding Des c a mps a nd Ma t his divisibility analy sis “applies in immig r ation
p r o ceeding s nationwide to the same ex tent that it applies i n criminal sentencing

proceeding s”).

The g o vernment d oes not a rg ue § 475.992(1)(a) is divisible

. I n s tead, it urg es us to remand to the B I A to determine whether § 475.992 i s d i visible. W hen an ag ency does not reach an issue for w h i ch it is owed Chevron deference, “the proper c o u r se, ex cept in rare circumstances, is to remand to the ag ency for additional inv e s tig ation o r

ex p lanati o n.” INS v. V entura , 537 U.S. 12, 16 (2002) (internal quotation marks o m itted); see also Gonzales v

. Thomas
, 547 U.S. 1 83, 186 ( 2006). B ut interpreting criminal law is not a matter placed p rimarily in a ge n c y hands. See Hoang
, 641 F .3d at 1161. W e owe no deference to the decision o f the B I A on this issue and ther e i s no reason to remand for the B I A to decide the issue of divisibility in the first instance. See Rivera v. Lynch
, 816 F .3d 1064, 1078 n.13 (9th Cir. 2 016) (“The question of [ a s t ate criminal statute’s] divisibility ‘requires n either f actual development n or ag ency

ex p ertise’ and is prop er l y analy zed by this court.” (quoting C h a vez-Solis v

. Lynch
, 8 03 F .3d 1004, 1012 n.6 (9th Cir. 2015))).

Section 47 5

. 992(1)(a) does not list “solicitation” as an alternative method of accomplishing de l ivery

. Nor is solicitation included in the ex press statutory defin i t i o n o f “deliver.” See id. § 475.005(8). T h e inclusion of solicitation

as a means of accomplishing deli v ery is a judicial interpretation of the wor d “ a t tempt.” Therefore, this is a

c i r c u m s t a n c e w h e r e t h e d i v i s i b i l i t y a n a l y s i s i sS A N D O V A L V

. Y A T E S 17

“straig htforward” b ecause § 475.992(1)(a) “sets out a sing le (or ‘indivisible’) set of elements to define a singl e crime.” Mathis
, 136 S. Ct. at 2 248. Solicitation is not an enumerated statutory alternative to delivery or a t t em p t but is, instead, included w ithin the meaning of those listed alternatives. See Sargent
, 822 P.2d a t 7 28. The statute is therefore indivisible with respect to whether an “attempt” i s accomplished b y solicitation.

Th e g overnment arg ues we have previously h eld § 475.992(1)(a) c ould q

ualify as an ag g r avated felony under the modified c ateg orical a pproach, citing Unit e d States v

. Chavaria-Ang e l
, 323 F .3d 1 172, 1177–78 ( 9th Cir. 2003). T h e r e, w e affirmed the d istrict court’s conclusion that t h e defendant’s § 475.992 offense for delivery o f a c ontrolled substance was an ag g r avated felony based on a review o f uncertified Oreg on state records. See Chavaria-Angel
, 323 F .3d a t 1174, 1177–78. However, the decision rested on the method rejected in D escamps , 133 S. Ct

. at 2282–83, 2 2 86–91, and applied the modified categ orical approach without performing any d ivisibility analy sis. See ChavariaAngel
, 323 F .3d at 1 177–78. The analy sis im p roperly focused o n w hat the defendant actually did a s opposed to the

c r i m e o f which the defendant was convicted

. Compare i d

. (focusing on the evidence supporting a finding the defendant sold controlled substances), with Descamps
, 133 S. Ct. at 2287 (c al ling this method a “modified factual” approach, which turns an “elements-based inquiry into an e videncebased one”). The opinion did n o t consider whether a jury
, when c onvicting a defendant of delivery of a controlled substance, must unanimo u s ly choose between a lternative
met h ods of delivery
, including solicitation. See ChavariaAngel
, 323 F

. 3d at 1177–7 8

. D e s camps and Mathis require these inquiries. Se e M athis
, 136 S. Ct. at 2256–57;S A N D O V A L V

. Y A T E S 18

Descamps
, 133 S. C t

. a

t 2 286–91. Chavaria-Angel
, therefore, is not controlling here.

To summariz e, § 475.992(1)(a) is overbroad i n its def i nition of “delivery ,” and the modified categ orical approach m ay n o t be applied because § 475.992(1)(a) is indivisible with res p ect to whether an “attempt” is accomplished by solicitation. Th e r e fore, we hold a conviction for delivering heroin under § 475.992(1)(a) is not an ag g ravated felony . Sandoval’s petition is g ranted.

G RANTED AND REMANDED.