United States v. Sanchez-Murillo

          ORDER

          STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant's Motion to Dismiss the Sole Count Against Him (Doc. 12), the Government's Response (Doc. 14), and Defendant's Reply (Doc. 15). For the following reasons, the motion will be denied.^[1]

         I. Background

         In April 2001, Defendant, a citizen of Mexico, came to the United States. (Doc. 12 at 3.) In April 2006, Defendant was convicted of two counts of sale of dangerous drugs and one count of attempted possession of dangerous drugs for sale in violation of A.R.S. section 13-3407 in Maricopa County Superior Court. (Doc. 12 at 4.) On April 3, 2006, Defendant was sentenced to five years imprisonment for the two counts of selling drugs and four years' probation for the attempted possession count. (Doc. 12-3 at 2.) On April 7, 2006, Defendant was served with a Notice of Intent (the “NOI”). (Doc. 12-4 at 3.) Defendant acknowledged the NOI and wished not to contest or request withholding of removal. (Doc. 12-4 at 3.) On April 10, 2006, Defendant was ordered removed. (Doc. 12-2 at 2.) After completing his sentence, Defendant was deported on October 5, 2009. (Doc. 12 at 4.)

         At some point after he was deported in 2009, Defendant returned to the United States. On May 15, 2019, Defendant was jailed in Maricopa County by the Gilbert Police Department. (Doc. 1 at 2.) Consequently, on May 17, 2019, Defendant was charged, in this case, with illegal reentry in violation of 8 U.S.C. sections 1326(a) and (b)(1). (Doc. 1.)

         II. Discussion

         Defendant argues that he was not deportable as charged in this case because his “convictions under Ariz. Rev. Stat. § 13-3407 were not controlled substance offenses under the federal definition in 8 U.S.C. § 1101(a)(43)(B) and therefore not aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii).” (Doc. 12 at 3.) He argues that, because the Arizona statute is categorically broader than the federal definition of controlled substance offenses and is indivisible by drug type, he is not an aggravated felon and could not be removed. (Doc. 12 at 3, 5-6.) The Government concedes that the Arizona statute at issue, A.R.S. sections 13-3407 and 13-3401, is overbroad because “it criminalizes the sale of certain drugs listed in A.R.S. § 13-3401, which are not included in the equivalent federal statute.” (Doc. 14 at 2.) However, the Government argues that the Arizona statute is divisible because (1) “Arizona juries must make a unanimous finding regarding the type of drug involved in the offense”; (2) a defendant may receive separate punishments for different types of drugs; and (3) Defendant's conviction documents, which identify methamphetamine as the sole drug used in this case, supports the proposition that drug type is an element and not a means. (Doc. 14 at 2, 5-6.)

         III. Analysis

         A. Legal Standard

         “A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction.” United States v. Mendez-Bello, No. 18-CR-3676-GPC-1, 2018 WL 6649512, at *1 (S.D. Cal. Dec. 19, 2018) (citing United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017)). To collaterally challenge pursuant to Section 1326(d), “the defendant must demonstrate that he (1) has exhausted all administrative remedies available to appeal the deportation order; (2) the underlying deportation proceedings at which the order was issued improperly deprived him of judicial review; and (3) the deportation order was fundamentally unfair.” Id. (citing 8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)). “An underlying removal order is fundamentally unfair if (1) a defendant's due process rights were violated by defects in his underlying [removal] proceeding, and (2) he suffered prejudice as a result of the defects.” Id. (citing Ubaldo-Figueroa, 364 F.3d at 1048). The defendant bears the burden of proving all the Section 1326(d) elements.” Id. (citing Ochoa, 861 F.3d at 1019).

         To determine whether a state offense may be a basis for removability under a federal offense, a court first looks to whether the applicable state statutes are categorical matches to the generic federal offenses. United States v. Martinez-Lopez, 864 F.3d 1034, 1038 (9th Cir. 2017) (en banc). If the statute is broader than the federal offense, then the state offense is not a categorical match. See Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (stating that, in applying the categorical approach, a court will “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [federal offense], while ignoring the particular facts of the case.”). If the court finds there is no categorical match, then it will determine whether the state statute is divisible. Id. at 2249; Descamps v. United States, 570 U.S. 254, 257 (2013). To determine whether a statute is divisible, the court looks first to controlling state law to see if a controlling state court decision has “definitively answer[ed] the question.” Mathis, 136 S.Ct. at 2256. If not, then the court will look to whether the state statute sets out alternative elements of what are effectively separate crimes, rather than merely describing different “means” for accomplishing a single crime. Martinez-Lopez, 864 F.3d at 1038-39; see Mathis, 136 S.Ct. at 2256.

         If the state statute is overbroad and indivisible, the court's inquiry ends because “a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir. 2016) (en banc). If not, then the court will apply the modified categorical approach. Martinez-Lopez, 864 F.3d at 1039. In doing so, the court will “peek” into the defendant's conviction documents “for the sole and limited purpose of determining whether the listed items are elements of the offense.” Mathis, 136 S.Ct. at 2256-57 (internal citations omitted).

         B. Discussion

         The parties agree that A.R.S. section 13-3407 is overbroad because it criminalizes substances that are not on the federal controlled substance lists. (Doc. 14 at 2.) The parties dispute, however, whether the Arizona statute is divisible by drug type. To answer that question, the Court first looks to whether any controlling state law has definitely addressed this issue-the Court finds that it has not. The Court is unpersuaded by Defendant's argument that United States v. Salinas, 887 P.3d 985, 987 (Ariz. 1994), “definitely resolved the means-versus-elements question in ...