NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No. 17

- 2571

_______________ MIGUEL GONZALEZ ESPINOZA ,

Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA , Respondent

_______________ On Petition for Review of an Order of the Board of Immigration Appeals ( BIA No. A0 99

- 939

- 312 )

_______________ Submitted Under Third Circuit L.A.R. 34.1(a)

April 19, 2018
Before: GREENAWAY, JR ., RENDELL , and FUENTES, Circuit Judges

(Opinion Filed: July 26, 2018 )

_______________ OPINION 

_______________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

FUENTES, Circuit Judge

. Miguel Gonzalez Espinoza petitions for review of his final order of removal for a
controlled substance violation issued by the Board o f Immigration Appeals ( the “Board ”). For the reasons explained below, we will deny the petition.
I. Gonzalez Espinoza, a citizen of Mexico, has lived in the United States as a lawful permanent res ident since 2011. In 2013, Gonzalez Es pinoza was charged with knowingly or intentionally possessing a Schedule I controlled substance, XLR

- 11 , under section
780

- 113(a)(16) of the Pennsylvania Controlled Substances Act (the “Act”)

. In 2016, Gonzalez Espinoza was charged again under the same statute for knowingly or intentionally possessing synthetic m arijuana. In March 2016, Gonzalez Espinoza pled guilty to each controlled substance charge. In October 2016, the Department of Home land Security began removal proceedings against Gonzalez Espinoza on the grounds that he was an alien , lawfully
admitted into the United States , convicted of a con trolled substance violation under 8
U.S.C. section 1227 (a)(2)(B)(i).
In a motion to termina te removal proceedings before the Immigration Judge, Gonzalez Espinoza argued section 780

- 113(a)(16) of the Act was not categorical ly a controlled sub stance violation under 8 U.S.C. section 1227(a)(2)(B)(i)

. Further , Gonzalez Espinoza argued section 780

- 113(a)(16) was indivisible, asserting the specific substances involved in the statute were means, and not elements, of the offense , and therefore, a judge could not appropriately apply the modified categorical approach

.3

The Immigration Judge rejected Gonzalez Espinoza’s arguments, finding section
780

- 113(a)(16) of the Act divisible. Conse quently, the Immigration Judge applied the

mo dified categorical approach and found that Gonzalez Esp inoza’s 2013 conviction was for possessing XLR

- 11, a drug publish ed i n the F ederal S chedule at 21 C.F.R section 1308(d)(49)

. As s uch, the Immigration Judge concluded that the statute of conviction in Gonzalez Espinoza’s conviction was c ategorically a controlled substance offense under
section 1227 (a)(2)(B)(i) , and thus, he was removable. On appeal to the Board, Go nzalez Espinoza argued that section 780

- 113(a)(16) is
in divisible. The Board rejected Gonzalez Espinoza’s ar gument and upheld the Immigration Judge’s conclusion, stating that the relevant Pennsylvania sta tute is
divisible. The Board, like the Immigration Judge, did not consider Gonzalez Espinoza’s
2016 offense in its determination of removability. Gonzalez Espinoza timely filed a petition for review. 1
I I. The question before this C ourt is whether t he Board erred in applying the modified categorical a

ppro ach and finding that Gonzalez Espino za was convicted of a

1 The Board exercised jurisdiction to review the Immigration Judge’s order of voluntary departure under 8 C.F.R. sections 1003.1(b)(3); and 1240.15. We generally have jurisdiction to rev iew a final order o f removal under 8 U.S.C. section 1252(a)(1)

. However, because Gonzalez Espinoza is considered a criminal alien, the court is limited in its review. Id. § 1252(a)(2)(C). In this case, the court maintains jurisdiction because the petition raised a question of law. § 1252(a)(2)(D). We review such claims de novo. Restrepo v. Att’y Gen. , 617 F.3d 787, 790 (3d Cir. 2010) (“T he question of whether an alien’ s offense constitutes an aggravated felony is reviewed de novo as it implicates a purely legal question t

hat governs the appellate court’ s jurisdiction.”)

.4

removable controlled substance offense. The answer to this question, and Gonzalez Espinoza’s petition, hinges on whether s ubsection v ii, synth etic c annabinoids, of
S chedule I of the Act is divisible. 2 This requires the application of Mathis v. United
States , in which the Supreme Court outlined three ways for sentencing courts to
determine whether a statute is divisible or indivisible. 3 For the following reasons, we will deny Gonzalez Espinoza’s petition. The categorical approach enables a court to determine whether a statute of

con viction, in this case section 780

- 113(a)(16); referencing the Pennsylvania Controlled Substances Schedules, matches or is narrower than the relevant generic offense, in this
case section 1227 (a)(2)(B)(i); referencing Federal Controlled Substances Schedules. 4 When a statute is indivisible, or lists multiple factual means for committing a single crime, the court employs a straightforward applicati on of the categorical approach and

compares the elements of the statute of conviction to the generic offense. 5 However,
when a statute is divisible and lists several, alternative elements (making separate
crimes ), the court applies the modified categorical approach. 6 “ [This approach] permits a court to determine which statutory phrase was the basis for the conviction. ” 7 Once the

2 While the broader issue is whether section 780

- 113(a)(16) is divisible, Gonzalez Espinoza focuses his argument almost entirely on whether the subsection of the Schedule referenced in section 780

- 113(a)( 16) is divisible. For this reason, we will focus our a nalysis on the divisibility of section 780

- 104(1)(vii) , synthetic cannabinoids

. 3 136 S. Ct. 2243, 2256 (2016). 4 See Mathis , 136 S. Ct. at 2248

. 5 See id. 6 See id

. at 2249. 7 Descamps v. United States, 570 U.S. 254, 263 (2013) (quoting Johnson v. United States , 559 U.S. 133, 144 (2010))

.5

court has det ermined the statutory phrase of conviction , the court compares it with th e generic offense and decides if the two are a categorical match

. 8 Accordingly , if Gonzalez Espinoza’s statute of convictio n , referencing the Pennsylvania Controlled Substances Schedules, match es section 1227 (a)(2)(B)(i) , referencing the Federal Controlled Substances Schedules, he is removable. 9 When a court is determining whether a statute is divisible, it should first establish whether a state court decision answers the question. 10 If the state court s are silent as to
th e divisibility of the statute, the court should consider whether the statute on its face
resolves the issue. 11 In the event the statute fails to establish divisibility, the court may look to record of prior conviction itself. 12 Gonzalez Espinoza argues Pennsylvania state case law establish es that synthetic

can nabinoids is in divisible. In United States v. Henderson , we explained “as it pertains
to the deliver

y of control led substances under section 780

- 113(a)(30 ) , the Pennsylvania Superior Court found th at the specific type of drug use d was an element of the offense; not a means of committing the offense

. ” 13 Moreover, we held such logic applied to
section 780

- 113( f)(1) of the Act. 14 Gonzalez Espinoza argues the same logic cannot

8 See Mathis , 136 S. Ct. at 2249. 9 See Singh v. Att’y Gen. , 839 F.3d 273, 278 (3 d Cir. 2016). 10 See Mathis , 136 S. Ct. at 2256. 11 See id. 12 See id. 13 841 F.3d 623, 629 (3 d Cir. 2016) (citing Commonwealth v. Swavely , 382 A.2d 946, 949 (Pa. Super. Ct. 1988) (not ing that § 780

- 113(a)(30) criminalizes possession of a controlled substance with intent to deliver))

. 14 See id

. (not ing that § 780

- 113(f)(1) criminalizes possession of heroin).6

ext end to his offense under section 780

- 113(a)(16) of the Act

. We disagree, seeing no reason to think that posse ssion of h eroin under section 780

- 113(f)(1), as in Henderson , is

any different t han possession of XLR

- 11 under section 780

- 113(a)(16)

. Therefore, we hold that Pennsylvania case law has already established that synthetic cannabinoids is
divisible. Continuing in his application of Mathis , Gonzalez Espinoza argues that synthetic
cannabinoids is indivisible because it “ is drafted to offer ‘illustrative examples,’” of way s to commit the relevant crime. 15 Gonzalez Espinoza claims XLR

- 11 is not a part of an exhaustive and disjunctive list of banned substances, but is a mere “illustrative [example] of how one might possess synthetic cannabinoids.” 16 In repl y, t he G overnment rightly points out that “a jury would have to conclude that [Gonzalez Espinoza], in fact, possessed that specific drug which has been classified as a controlled substance in
Schedule I ” of the Act

. 17 Moreover, we have held that the pa rtic ular controlled
substances a jury bases its conviction s on are “distinct elements of the crime; not means of committing the crime.” 18 Gonzalez Espinoza also contends that the statute is facially indivisible because the
list of controlled substances in Schedule I of the Act contains non

- exhaustive “catch

- all” provisions, like a prohibition on CB1 agonists. This fails to persuade because the

15 136 S. Ct. at 2256 (quoting United States v. Howard , 742 F.3d 1334, 1348 (11th Cir. 2014) )

. 16 Pet’r Br. 20. 17 Henderson , 841 F.3d at 629. 18 I d.7

prohibition on CB1 agonists describes a dis crete type of controlled substanc es and is not
a limitless catch

- all

. The Schedules, their subsections, and their sub

- subsections are dependent on the ever - developing findings of pharmaceutical science

. As such, there is no telling how many more CB1 agonists may be discover ed and when n ew CB1 agonists may be discovered , but at all times the list is exhaustive in that pharmaceutical science
knows the entire “world” of CB1 agonists

. Gonzalez Espinoza’s argument falls short in light of this position, and for that reason, we conclude the Ac t does not facially establish synthetic cannabinoids is indivisible. Finally , Gonzalez Espinoza argues his re cord of conviction establishes synthetic
cannabinoids is in divisible. Under Mathis , the Supreme Cour t explained federal judges

may take a “ p eek” at the record of conviction to determine whether a statute contains
elements or means. 19 Further, the Court held i f the record of conviction references a “single umbrella term,” the items listed under the single umbrella term are means and not
elements. 20 Gonzalez Espinoza claims that his 2016 charging document, which refers generally to possession of synthetic cannabinoids proves synthetic cannabinoids is
indivisible. While Gonzalez Espinoza is correct that the charging document related to his 2016
offen se refers generally to synthetic cannabinoids, without referencing a particular type of synthetic cannabinoid, the Board and the Immigration Judge found Gonzalez Espinoza

19 136 S. Ct. at 2256

- 57 (quoting Rendon v. Holder , 782 F.3d 466, 473

- 74 (9th Cir. 2015)). 20 I d

. at 2257.8

removable on the basis of his conviction related to his 2013 offense, where XLR

- 11 wa s specified

. 21 Gonzalez Espinoza’s 2013 charging document references “one alternative
term to the exclusion of all others.” 22 Under Mathis , such a record of conviction
confirms that s ynthetic cannabinoids “contains a list of elements, each one of which goes toward a separate crime.” 23 On the whole, the modified categorical approach was applied appropriately. 24 Because the court found Gonzalez Espinoza’s conviction was for a drug published in the Federal Schedule, the Board correctly determined Gonzalez E spinoza was removable
under section 1227 (a)(2)(B)(i ).
III.
For the foregoin g reasons, we will deny Gonzalez Espinoza’s petition fo r review.

21 See Singh , 807 F.3d at 550 n.4 (3 d Cir. 2015 ) ( “We decide the petition only on the administrative record on which the order of removal is ba sed, and defer to the administrative findings o f fact as conclusive [ , ] unless any reasonable adjudicator would be compelled to conclude to the cont rary.” (alteration in original) (internal quotations and citations omitted) )

. 22 Mathis , 136 S. Ct. at 2257. 23 I d. 24 The Petiti oner also argued that, even if s ection (1)(vii) of the Pennsylvania Controlled Substance Act is divisibl e, sub

- subsection (1)(vii)(12)

— tetramethylcylopropylindoles

— r emains indivisible. This argument fails for reasons simi lar to his arguments regarding divisibility of synthetic cannabinoids.