CA9 on Taylor, Divisibility, Modified Categorical Approach: Lorenzo v. Sessions

Lorenzo v. Sessions - "This case raises a novel yet straightforward question in our application of Taylor v. United States, 495 U.S. 575 (1990): whether the Taylor analysis must be performed twice if a state statute contains two layers of disjunctive lists. We hold Taylor applies to both layers of the statute. Following this approach, we conclude the definition of “methamphetamine” applicable to convictions under California Health & Safety Code §§ 11378 and 11379(a) is broader than the definition of methamphetamine under the federal Controlled Substances Act, 21 U.S.C. § 812. Under the first step in the categorical approach, therefore, a conviction for a methamphetamine offense under §§ 11378 or 11379(a) does not qualify as a “controlled substance” violation under 8 U.S.C. § 1227(a)(2)(B)(i). We further conclude the methamphetamine element applicable to a conviction under §§ 11378 or 11379(a) is not divisible, because the different varieties of methamphetamine covered by California law are alternative means of committing a single crime rather than alternative elements of separate crimes. We therefore do not apply the modified categorical approach. Because the methamphetamine element of §§ 11378 and 11379(a) is overbroad and the modified categorical approach does not apply, we hold a methamphetamine conviction under §§ 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i). Accordingly, we hold Lorenzo is not removable for the reasons stated by the BIA."

[Hats off to appointed pro bono counsel Benjamin F. Aiken (argued), Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Cathy C. Shyong, Orrick Herrington & Sutcliffe LLP, Menlo Park, California; Karen Johnson-McKewan, Orrick Herrington & Sutcliffe LLP, San Francisco, California; for Petitioner!]