United States District Court, D. Arizona
P. LOGAN UNITED STATES DISTRICT JUDGE.
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.
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
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.)
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.)
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).
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.
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).
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 ...