Gabriel Almanza-Arenas v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL ALMANZA-ARENAS, No. 09-71415

Petitioner,

Agency No.

v. A078-755-092

LORETTA E. LYNCH, Attorney

General,

Respondent.

GABRIEL ALMANZA-ARENAS, No. 10-73715

Petitioner,

Agency No.

v. A078-755-092

LORETTA E. LYNCH, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc

September 10, 2015—San Francisco, California

Filed December 28, 2015

2 ALMANZA-ARENAS V. LYNCH

Before: Sidney R. Thomas, Chief Judge and Ronald M.

Gould, Richard C. Tallman, Johnnie B. Rawlinson, Jay S.

Bybee, Consuelo M. Callahan, Sandra S. Ikuta, N. Randy

Smith, Jacqueline H. Nguyen, Paul J. Watford and John B.

Owens, Circuit Judges.

Opinion by Judge N.R. Smith;

Concurrence by Judge Owens;

Concurrence by Judge Watford

SUMMARY*

Immigration

The en banc court granted Gabriel Almanza-Arenas’s

petition for review of the Board of Immigration Appeals’

published precedential decision, Matter of Almanza-Arenas,

24 I. & N. Dec. 771 (BIA 2009), which held that a conviction

for vehicle theft under California Vehicle Code § 10851(a)

constitutes a crime involving moral turpitude.

Applying Descamps v. United States, 133 S. Ct. 2276

(2013), the en banc court first held that § 10851(a) is

overbroad and not a categorical match to the federal offense

because it punishes conduct that both is and is not a crime of

moral turpitude (CIMT). The en banc court next held that

§ 10851(a) is an indivisible statute because the intent element

requires intent to either permanently or temporarily deprive

an owner of their vehicle, thus criminalizing conduct that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALMANZA-ARENAS V. LYNCH 3

both would and would not constitute a CIMT. While

recognizing a circuit split as to whether, following Descamps,

courts may look to state law to determine a statute’s elements,

the en banc court found that § 10851(a) is indivisible because

under California law the two forms of intent are alternative

means of accomplishing the same crime rather than two

separate crimes.

Concurring, Judge Owens wrote that he joined the

majority opinion because it correctly followed this court’s

precedent, but that he would find that the precedent is

incorrect.

Concurring in the judgment, Judge Watford agreed that a

conviction under § 10851(a) is not a CIMT, but disagreed

with the majority’s conclusion that the statute is indivisible.

Judge Watford wrote that he would overrule Rendon v.

Holder, 764 F.3d 1077 (9th Cir. 2014), because its divisibility

analysis is inconsistent with Descamps’ approach.

COUNSEL

Mark C. Fleming (argued), Wilmer Cutler Pickering Hale and

Dorr LLP, Boston, Massachusetts; Daniel Winik, Wilmer

Cutler Pickering Hale and Dorr LLP, Washington D.C.;

Michael J. Codner and Murray D. Hilts, Law Offices of

Murray D. Hilts, San Diego, California, for Petitioner.

Leon Fresco, Deputy Assistant Attorney General (argued);

Tony West, Assistant Attorney General; Leslie McKay,

Assistant Director; Carol Federighi, Senior Litigation

Counsel; Stefanie Notarino Hennes, Trial Attorney, United

4 ALMANZA-ARENAS V. LYNCH

States Department of Justice, Civil Division, Office of

Immigration Litigation, Washington, D.C., for Respondent.

Jayashri Srikantiah, and Alison Kamhi, Immigrant’s Rights

Clinic, Mills Legal Clinic, Stanford Law School, Stanford,

California; Manuel Vargas and Isaac Wheeler, Immigrant

Defense Project, New York, New York, for Amicus Curiae

Immigrant Defense Project, National Immigration Project of

the National Lawyers Guild, Immigrant Legal Resource

Center, and Federal Defenders of San Diego.

Charles Roth, National Immigrant Justice Center, Chicago,

Illinois; Matt Adams, National Immigrant Rights Project,

Seattle, Washington; Benjamin R. Casper, University of

Minnesota Law School, Center for New Americans, Federal

Immigration Litigation Clinic, Minneapolis, Minnesota;

Northwest Immigrant Rights Project, Seattle, Washington, for

Amici Curiae the National Immigrant Justice Center and the

Northwest Immigrant Rights Project.

Vincent J. Brunkow, Reuben Camper Cahn, and Kara

Hartzler, Federal Defenders of San Diego, Inc., San Diego,

California, for Amici Curiae the Ninth Circuit Federal

Defenders and Community Defenders, the California Public

Defenders Association and individual California Public

Defender Offices, and National Association of Criminal

Defense Lawyers.

Devin T. Theriot-Orr and Ralph Hua, Gibbs Houston Pauw,

Seattle, Washington, for Amici Curiae American Immigration

ALMANZA-ARENAS V. LYNCH 5

Lawyers Association, Immigrant Defense Project, Immigrant

Legal Resource Center, National Immigration Project of the

National Lawyers Guild, the University of California Davis

School of Law Immigration Law Clinic, Community Legal

Services in East Palo Alto, Detention Watch Network, the

Florence Immigrant and Refugee Rights Project, the National

Immigration Law Center, and Public Counsel.

OPINION

N.R. SMITH, Circuit Judge, joined by THOMAS, Chief

Judge, and GOULD, TALLMAN, RAWLINSON, BYBEE,

CALLAHAN, IKUTA, NGUYEN, and OWENS, Circuit

Judges:

California Vehicle Code § 10851(a) is an indivisible

statute, criminalizing both conduct that would and would not

constitute a crime involving moral turpitude. Therefore,

section 10851(a) cannot be a categorical match to a crime

involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i).

Thus, we grant the petitions and remand for further

proceedings, because a conviction under this statute does not

render a petitioner ineligible for cancellation of removal.

I. FACTS AND PROCEDURAL HISTORY

Gabriel Almanza-Arenas (“Almanza”) is a native and

citizen of Mexico. Almanza last entered the United States

without being admitted or paroled in October 2000.1 In

1

For purposes of cancellation of removal, Almanza alleges that he

arrived in the United States in 1989. Almanza had five voluntary returns

to Mexico in 1996 and one voluntary return in 2000. Although the taking

6 ALMANZA-ARENAS V. LYNCH

February 2005, the Department of Homeland Security

(“DHS”) issued a Notice to Appear, alleging that Almanza

was removable because he was not properly admitted or

paroled to the United States. On July 21, 2005, Almanza

admitted the truth of the factual allegations in the Notice to

Appear and conceded his removability. However, Almanza

orally requested 8 U.S.C. § 1229b cancellation of removal at

the hearing (and thereafter filed a written application in

January 2006) and alternatively requested voluntary

departure.2

In his application for cancellation of removal, Almanza

disclosed that he pleaded guilty to a misdemeanor violation

of California Vehicle Code § 10851(a) (under People v. West,

477 P.2d 409 (Cal. 1970)3) on September 12, 2000. The

of voluntary departure precludes Almanza’s eligibility for cancellation of

removal, neither the Board of Immigration Appeals (“BIA”) nor

immigration judge (“IJ”) found Almanza ineligible on this basis.

Therefore, we cannot affirm on that basis. Navas v. INS, 217 F.3d 646,

658 n.16 (9th Cir. 2000).

2

Because Almanza filed his application for cancellation of removal after

May 11, 2005, the REAL ID Act applies. See Real ID Act of 2005, Pub.

L. No. 109–13, § 101(h)(2), 119 Stat. 231, 305 (codified in scattered

sections of 8 U.S.C.) (Provisions of the REAL ID Act apply to

“applications for . . . relief from removal made on or after” May 11, 2005).

Almanza argues that the REAL ID Act should not apply because he was

in removal proceedings prior to this date. There is no authority to support

this argument; application of the REAL ID Act is based on the filing date

of the application for cancellation of removal. See Shrestha v. Holder,

590 F.3d 1034, 1039 (9th Cir. 2010).

3

A West plea is “a plea of nolo contendere, not admitting a factual basis

for the plea. Such a plea, also referred to as an Alford plea, based on

North Carolina v. Alford, 400 U.S. 25, 37–38 (1970), allows a defendant

to plead guilty in order to take advantage of a plea bargain while still

ALMANZA-ARENAS V. LYNCH 7

parties agree that California Vehicle Code § 10851(a)

punishes both permanently depriving (which is a crime of

moral turpitude) and temporarily depriving (which is not a

crime of moral turpitude) an owner of his or her vehicle.

People v. Garza, 111 P.3d 310, 315 (Cal. 2005).

Thus, the IJ held a hearing regarding Almanza’s

eligibility for cancellation of removal and voluntary

departure. At the hearing, the DHS argued that Almanza’s

conviction disqualified him from cancellation of removal

because a conviction for violation of California Vehicle Code

§ 10851(a) presents a crime involving moral turpitude. The

DHS also placed into evidence three state court documents:

(1) a felony complaint charging Almanza with a violation of

California Vehicle Code § 10851(a);4 (2) a copy of

Almanza’s September 12, 2000 guilty plea (pursuant to

People v. West, 477 P.2d at 410) to a misdemeanor violation

of California Vehicle Code § 10851(a); and (3) a judgment

showing that Almanza received a sentence of twenty-four

days time served. Neither party placed the transcript of

Almanza’s plea colloquy for this conviction into evidence.5

asserting his or her innocence.” People v. Rauen, 133 Cal. Rptr. 3d 732,

734 (Cal. Ct. App. 2011) (internal quotation marks and footnote omitted).

4

The Complaint alleged in Count 1 that Almanza “did unlawfully drive

and take a vehicle, . . . without the consent of and with intent either

permanently or temporarily to deprive the owner of title and possession of

said vehicle, in violation of VEHICLE CODE SECTION 10851(a).” The

submitted Complaint crossed out one name and leaves the name “Raul

Almanza.” Despite the reference to the wrong name, Almanza does not

dispute that the submitted Complaint was the basis of his guilty plea.

5

The IJ asked Almanza whether he was in the process of obtaining the

transcript of the plea colloquy. Almanza did not present the transcript and

8 ALMANZA-ARENAS V. LYNCH

After the hearing, the IJ denied Almanza’s petition for

cancellation of removal. The IJ found that Almanza had not

met his burden of proof to show eligibility for cancellation of

removal, because he had not shown that he was convicted of

the lesser “temporary” offense in section 10851(a).

The BIA affirmed the IJ’s holding and dismissed

Almanza’s appeal in a published decision. Matter of

Almanza-Arenas, 24 I. & N. Dec. 771 (B.I.A. 2009). The

BIA concluded that, because Almanza’s application for relief

was filed after May 11, 2005, the REAL ID Act applied to his

case. Id. at 774. The BIA concluded that the conviction

record before the IJ was ambiguous, and it was Almanza’s

duty to produce evidence (including the requested plea

colloquy) that he did not commit a crime involving moral

turpitude because he had the burden of proof. Id. In

particular, the BIA concluded Almanza did not meet his

burden of proof of showing eligibility for cancellation of

removal, because he did not produce more specific evidence

(as the IJ requested) to show that he did not intend to

permanently deprive the owner of his or her vehicle.6 Id. at

774–76.

argued that its admission was not necessary given his West plea (which is

made without any admission to the facts).

6

Because we conclude that section 10851(a) is indivisible, we do not

reach the issue of whether Almanza met his burden of proof.

ALMANZA-ARENAS V. LYNCH 9

Petitioner timely petitioned for review.7 A three judge

panel granted the petition. Almanza-Arenas v. Holder,

771 F.3d 1184 (9th Cir. 2014). We then granted rehearing en

banc. Almanza-Arenas v. Lynch, 785 F.3d 366 (9th Cir.

2015).

II. ANALYSIS

To determine whether section 10851(a) is a crime

involving moral turpitude, we apply the three-step process set

forth in Descamps v. United States, 133 S. Ct. 2276 (2013):

At the first step, we compare the elements of

the state offense to the elements of the generic

offense defined by federal law. If this

“categorical approach” reveals that the

elements of the state crime are the same as or

narrower than the elements of the federal

offense, then the state crime is a categorical

match and every conviction under that statute

qualifies as [a crime involving moral

turpitude]. When a statute is “overbroad,”

7

Almanza’s petition for review included his motion for reconsideration,

requesting that the BIA consider whether his offense qualified under the

petty offense exception in INA § 212(a)(2)(A)(ii), 8 U.S.C.

§ 1182(a)(2)(A)(ii), and whether the offense is described in INA

§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i). The BIA denied

Almanza’s request for reconsideration, concluding that “[e]ven though the

conviction is not ‘described under’ section 212(a)(2) of the Act because

it falls under the petty offense exception, the respondent has been

convicted of an offense ‘described under’ section 237(a)(2) of the Act.”

Because we conclude that section 10851(a) is categorically not a crime

involving moral turpitude, we do not address whether the petty offense

exception is applicable in the context of cancellation of removal.

10 ALMANZA-ARENAS V. LYNCH

meaning that it criminalizes conduct that goes

beyond the elements of the federal offense,

we turn to step two: determining whether the

statute is “divisible” or “indivisible.” If the

statute is indivisible, “our inquiry ends,

because a conviction under an indivisible,

overbroad statute can never serve as a

predicate offense.” Only when a statute is

overbroad and divisible do we turn to step

three—the “modified categorical approach.”

At this step, we may examine certain

documents from the defendant’s record of

conviction to determine what elements of the

divisible statute he was convicted of violating.

Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir.

2015) (internal citations omitted).

A. Step One: Compare Elements of the State Offense to

the Elements of the Federal Generic Offense.

To determine whether a state criminal statute is

categorically a crime involving moral turpitude, we use a

two-step process, each step with a different standard of

review. Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208

(9th Cir. 2013). “The first step is to identify the elements of

the statute of conviction.” Id. We review this step de novo,

because “the BIA has no special expertise by virtue of its

statutory responsibilities in construing state or federal

criminal statutes.” Id. (alteration and citation omitted). “The

second step is to compare the elements of the statute of

conviction to the generic definition of a crime of moral

turpitude and decide whether the conviction meets that

definition.” Id. We review this step following the Chevron

ALMANZA-ARENAS V. LYNCH 11

framework and defer to the BIA’s conclusion if warranted.

Id.; see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837 (1984).

To identify the elements of California Vehicle Code

§ 10851(a), we apply California rules of statutory

construction. Lieberman v. Hawkins (In re Lieberman),

245 F.3d 1090, 1092 (9th Cir. 2001). “Under California law,

the cardinal rule of statutory construction is to determine the

intent of the legislature.” Id. We therefore determine intent

by first looking “to the language of the statute and giv[ing]

effect to its plain meaning.” Id. “If the intent of the

legislature is not clear from the language of the statute,

legislative history may be considered.” Id. California

Vehicle Code § 10851(a) (2000) provides:

Any person who drives or takes a vehicle not

his or her own, without the consent of the

owner thereof, and with intent either to

permanently or temporarily deprive the owner

thereof of his or her title to or possession of

the vehicle, whether with or without intent to

steal the vehicle . . . is guilty of [unlawfully

taking or driving a vehicle.8]

The language of the statute shows that there are three

elements of this offense: (1) a person drove or took a vehicle

not his or her own; (2) the owner did not provide consent to

drive or take his or her vehicle; and (3) the person drove or

8

We acknowledge that section 10851(a) is divisible to the extent that it

also pertains to a person who is an accessory or an accomplice.

Duenas-Alvarez v. Holder, 733 F.3d 812, 814 (9th Cir. 2013). However,

Almanza was not convicted of that portion of the statute.

12 ALMANZA-ARENAS V. LYNCH

took the vehicle with intent either to permanently or

temporarily deprive the owner, whether with or without intent

to steal the vehicle. The last element of section 10851(a)

(relevant here) criminalizes the driving or taking of a vehicle

without consent regardless of whether the individual had the

“intent to either permanently or temporarily deprive the

owner” of his or her vehicle.

Comparing section 10851(a) to the generic definition of

a crime involving moral turpitude, we look to see if the crime

is “vile, base, or depraved” and “violates accepted moral

standards.” Ceron v. Holder, 747 F.3d 773, 779 (9th Cir.

2014) (en banc) (quoting Latter-Singh v. Holder, 668 F.3d

1156, 1161 (9th Cir. 2012)). Although section 10851(a) is

generally considered to be a theft offense, see Duenas-

Alvarez, 733 F.3d at 814, not all “theft” offenses are crimes

involving moral turpitude. See Castillo-Cruz v. Holder,

581 F.3d 1154, 1159 (9th Cir. 2009). Instead, “[t]he BIA has

held in a number of cases that a theft offense is not

categorically a crime of moral turpitude if the statute of

conviction is broad enough to criminalize a taking with intent

to deprive the owner of his property only temporarily.” Id.;

see also Matter of M-, 2 I. & N. Dec. 686, 686 (B.I.A. 1946)

(holding joyriding is not a crime involving moral turpitude);

Matter of D-, 1 I. & N. Dec. 143, 143, 145 (B.I.A. 1941)

(holding that driving an automobile without the consent of the

owner is not a crime involving moral turpitude). As a result,

section 10851(a) punishes conduct that is categorically a

crime of moral turpitude (permanently depriving) and

conduct that is not categorically a crime of moral turpitude

(temporarily depriving). Because section 10851(a) is

“overbroad” and “criminalizes conduct that goes beyond the

elements of the federal offense,” it is not a categorical match.

ALMANZA-ARENAS V. LYNCH 13

See Lopez-Valencia, 798 F.3d at 867–68. We must then turn

to step two.

B. Step Two: Is the Statute Divisible or Indivisible?

Step two requires us to determine whether section

10851(a) is a divisible or indivisible statute. In other words,

we must determine whether section 10851(a) has “multiple,

alternative elements, and so effectively creates ‘several

different crimes.’” Descamps, 133 S. Ct. at 2285 (alteration

omitted) (quoting Nijhawan v. Holder, 557 U.S. 29, 41

(2009)). If it has alternative elements, it is divisible and we

continue to step three—the modified categorical approach.

Alternatively, if section 10851(a) has a “single, indivisible set

of elements” with different means of committing one crime,

then it is indivisible and we end our inquiry, concluding that

there is no categorical match to the generic federal offense.

Id. at 2286.9

Our specific inquiry here is whether section 10851(a)’s

“intent” element (to permanently or temporarily deprive) is

divisible or indivisible. We therefore must determine

whether the text of section 10851(a) sets forth elements or

means. We do this by first looking to the plain language of

the statute.

9

At this point in the analysis, Judge Watford mistakenly parts from

Descamps precedent, instead basing his concurrence on “multiple ways a

particular element can be satisfied” without authority for such departure.

See Concurring Op. 30 (Watford, J.).

14 ALMANZA-ARENAS V. LYNCH

1. Elements versus Means.

Divisibility, like element identification, is reviewed de

novo, because it “is a purely legal question which does not

require any additional fact-finding.” Medina-Lara v. Holder,

771 F.3d 1106, 1117 (9th Cir. 2014); Ceron, 747 F.3d at 778

(noting that we review element identification de novo,

“[b]ecause the BIA lacks expertise in identifying the elements

of state statutes”). Therefore, we owe no deference to the

BIA’s conclusion (without analysis) that section 10851(a)

was divisible. See Matter of Almanza-Arenas, 24 I. & N.

Dec. at 774.

As outlined in Descamps, we distinguish indivisible

statutes from divisible statutes by determining whether the

statutes provide multiple, alternative means of committing the

crime. See 133 S. Ct. at 2285. In United States v. Cabrera-

Gutierrez, we determined that if the elements of the crime are

alternative to each other—not the mode or means of proving

an element of the crime—the statute is divisible. 756 F.3d

1125, 1135–37 & n.16 (9th Cir. 2013).

In Richardson v. United States, 526 U.S. 813 (1999)

(upon which Descamps relied), the Supreme Court made it

clear that elements are different than means. It held:

If the statute creates a single element, a

“series,” in respect to which individual

violations are but the means, then the jury

need only agree that the defendant committed

at least three of all the underlying crimes the

Government has tried to prove. The jury need

not agree about which three. On the other

hand, if the statute makes each “violation” a

ALMANZA-ARENAS V. LYNCH 15

separate element, then the jury must agree

unanimously about which three crimes the

defendant committed.

Id. at 818. Therefore, a single element must be part of a

charged offense with which a jury necessarily found the

defendant guilty. See Taylor v. United States, 495 U.S. 575,

602 (1990) (holding that when a statute includes entry of a

building or automobile, the modified approach can only be

used “if the indictment or information and jury instructions

show that the defendant was charged only with a burglary of

a building, and that the jury necessarily had to find an entry

of a building to convict”); see also Descamps, 133 S. Ct. at

2288 (“The Sixth Amendment contemplates that a jury—not

a sentencing court—will find such facts, unanimously and

beyond a reasonable doubt. And the only facts the court can

be sure the jury so found are those constituting elements of

the offense—as distinct from amplifying but legally

extraneous circumstances.”).

Richardson makes clear that the first step in determining

elements versus means (and thus divisibility) begins with the

text of the statute of conviction.10 526 U.S. at 818. The text

of section 10851(a), as noted above, presents three indivisible

elements. Although section 10851(a) uses disjunctive

phrasing in two of the three elements, the use of “or” does not

10

Judge Watford mistakenly suggests that the majority opinion is instead

“predicated on the same reasoning our court adopted in Rendon v. Holder,

764 F.3d 1077 (9th Cir. 2014).” See Concurring Op. 27 (Watford, J.). To

the contrary, our decision derives from Supreme Court precedent. To the

extent the Rendon decision agrees with our decision, it remains circuit

precedent.

16 ALMANZA-ARENAS V. LYNCH

create additional elements.11 Rather, the disjunctive phrasing

creates different means of committing the one offense. The

first element can be completed by either driving a vehicle or

taking a vehicle (which vehicle belongs to another person).

The second element can be completed by driving or taking

the vehicle without the consent of the owner. The third

element (the element at issue here) can be completed by

either permanently or temporarily depriving the owner of his

or her vehicle. The means or methods of committing the

element of the offense do not make the statute divisible,

because the trier of fact does not need to agree as to whether

the deprivation was temporary or permanent (the length of

time during which the deprivation occurred). Thus, section

10851(a) is an indivisible statute.

We confirm this statutory interpretation by first

examining the Shepard documents to see whether the statute

displays alternative elements instead of alternative means of

committing the same crime.12 See Descamps, 133 S. Ct. at

11

The mere use of the disjunctive term “or” does not automatically make

a statute divisible. See Rendon, 764 F.3d at 1085–86 (concluding that

when a state statute “is written in the disjunctive . . . that fact alone cannot

end the divisibility inquiry”); see also United States v. Howard, 742 F.3d

1334, 1348 (11th Cir. 2014); United States v. Pate, 754 F.3d 550, 554–55

(8th Cir.), cert. denied, 135 S. Ct. 386 (2014); Omargharib v. Holder,

775 F.3d 192, 198 (4th Cir. 2014); United States v. Royal, 731 F.3d 333,

341–42 (4th Cir. 2013).

12

Prior to Descamps, Judge Watford may have been correct that we

should not look at Shepard documents prior to a determination of

divisibility. However, a crime is only divisible if it includes alternative

elements not alternative means. See Descamps, 133 S. Ct. at 2288. Thus,

after Descamps, the Supreme Court allows us to look at Shepard

documents to confirm the determination of the statute’s elements (and

thereby its divisibility). Descamps, 133 S. Ct. at 2285 n.2. Here, we look

ALMANZA-ARENAS V. LYNCH 17

2285 n.2 (“When a state law is drafted in the alternative, the

court merely resorts to the approved documents and compares

the elements revealed there to those of the generic offense.”).

Here, an examination of the Shepard documents confirms our

conclusion that section 10851(a) is indivisible. The

indictment charges that Almanza violated section 10851(a) by

taking the car “with intent either permanently or temporarily

to deprive the owner” of the car. Prosecutors may not charge

a defendant in the disjunctive, as the indictment did here, if

they are charging two separate offenses.13 See The

Confiscation Cases, 87 U.S. (20 Wall.) 92, 104 (1874) (“[A]n

indictment or a criminal information which charges the

person accused, in the disjunctive, with being guilty of one or

of another of several offences, would be destitute of the

necessary certainty, and would be wholly insufficient.”). As

noted in Descamps, “[a] prosecutor charging a violation of a

divisible statute must generally select the relevant element

from its list of alternatives.” 133 S. Ct. at 2290. Thus, when

reviewing the Shepard documents, a court can discover what

the prosecutor included as elements of the crime and to what

elements the petitioner pleaded guilty. Therefore, because the

indictment charged Almanza with having intent either to

permanently deprive or temporarily deprive the owner, the

to Shepard documents merely “as a tool for implementing the categorical

approach.” Cf. id. at 2284.

13

We are mindful that prosecutors’ charging documents do not always

charge a defendant properly. In some instances, prosecutors may fail to

“select the relevant element[s] from its list of alternatives,” Descamps,

133 S. Ct. at 2290, or may include the specific means of committing the

offense out of convenience. We are also mindful that defendants may

plead to these imprecisely charged indictments or informations without

alteration. Therefore, the divisibility analysis may not end after looking

to Shepard documents.

18 ALMANZA-ARENAS V. LYNCH

indictment reveals that (under state law) the two forms of

intent are alternative means of accomplishing the same crime

instead of two separate crimes. Section 10851 is therefore an

indivisible statute.14

Even though the plain language of the statute is confirmed

by the Shepard documents (section 10851(a) only has three

elements), the BIA found (and the government argued) that

the statute is divisible because the intent element was written

in the disjunctive. Therefore, to further support our analysis,

we verify that our interpretation of section 10851(a)’s intent

element is the same as the interpretation of the California

courts.15 As the Supreme Court has counseled, if the state

courts have addressed the issue, “we simply are not at liberty

to ignore that determination and conclude that the alternatives

14

The Supreme Court has cautioned us not to engage in judicial

factfinding. See James v. United States, 550 U.S. 192, 214 (2007),

overruled on separate grounds by Johnson, 559 U.S. 133. “[B]y applying

Taylor’s categorical approach, we [have avoided] any inquiry into the

underlying facts of [Almanza’s] particular offense, and have looked solely

to the elements of [section 10851(a)] as defined by [California] law.” Id.

Under Judge Watford’s approach, it seems anything written in the

disjunctive (whether elements or means) is divisible regardless of whether

a jury necessarily had to find a defendant committed the element of the

offense beyond a reasonable doubt. Rather than treating everyone (who

has committed an offense under § 10851(a)) equally, he mistakenly would

look to the facts of each case to see if he can discover the means of how

the person committed the offense. See Concurring Op. 35 (Watford, J.).

15

Descamps does not preclude us from looking to state law to determine

whether the statute is indivisible after we have examined the Shepard

documents. See Descamps, 133 S. Ct. at 2285 n.2.

ALMANZA-ARENAS V. LYNCH 19

are, in fact, independent elements under state law.”16 Schad

v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion); see

also Albertson v. Millard, 345 U.S. 242, 244 (1953) (per

curiam) (“The construction given to a state statute by the state

courts is binding upon federal courts.”). We look to a state’s

laws to determine whether that state’s courts “have

determined that certain statutory alternatives are mere means

of committing a single offense, rather than independent

elements of the crime.” Schad, 501 U.S. at 636. Therefore,

we must verify that our interpretation of elements versus

means is consistent with how California would instruct a jury

as to this offense.

2. Application of State Law

Looking to state law to determine a state’s interpretation

of its own statutes is nothing new. In Descamps, the Supreme

Court looked to state law to confirm the statute’s plain text

that California did not require a “breaking and entering.”

Descamps, 133 S. Ct. at 2282 (citing People v. Barry, 29 P.

1026, 1026–27 (Cal. 1892)). The Supreme Court also applied

this framework in Johnson v. United States, 559 U.S. 133

(2010). In that case, the defendant had a previous conviction

of simple battery under Florida law, Fla. Stat. § 784.03(1)(a).

559 U.S. at 136. Johnson objected to the conviction being

16

Looking to state court precedent or to a state’s pattern jury instructions

(which are based on that state’s general law) solely to verify how a state

instructs a jury as to the elements of a state offense is consistent with the

Supreme Court’s mandate “to treat every conviction of a crime in the same

manner.” Descamps, 133 S. Ct. at 2287. The Supreme Court made it

clear, we are not “to explore whether a person convicted of one crime

could also have been convicted of another, more serious offense.” Id. at

2292. “[T]hat circumstance-specific review is just what the categorical

approach precludes.” Id.

20 ALMANZA-ARENAS V. LYNCH

classified as a violent felony. Id. In determining the

elements of the crime, the Supreme Court concluded that

there were three ways the prosecution could prove a battery,

citing to state law. Id. (“Because the elements of the offense

are disjunctive, the prosecution can prove a battery in one of

three ways.” (citing State v. Hearns, 961 So. 2d 211, 218

(Fla. 2007))).

We similarly looked to the state interpretation of its own

statute in two of our recent cases, Rendon v. Holder, 764 F.3d

1077, and Chavez-Solis v. Lynch, 803 F.3d 1004 (9th Cir.

2015). In Rendon, after concluding that the statute was not a

categorical match, we turned to the second step to determine

divisibility. 764 F.3d at 1084. The statute’s text did not

provide a clear answer to which parts of the statute were

means versus elements; therefore, we looked to state law to

determine whether the statute contained alternative elements

rather than alternative means. Id. at 1088–89. In Chavez-

Solis, we interpreted a disjunctively worded statute. 803 F.3d

at 1013. We looked to the pattern jury instructions/state law

to assess the divisibility of the statute (i.e., what elements a

jury must unanimously agree on). Id. After review of the

state law, we concluded that California’s statute was

indivisible because “California juries are not required to

unanimously agree on what sexual conduct appears in a

particular image in order to convict a defendant of possession

of child pornography.” Id.

Several of our sister circuits have also looked to state law

to verify whether a state statute has elements or means. For

instance, in United States v. Pate, the Eighth Circuit

concluded that the term “flee,” which was defined to mean

“increase speed, extinguish motor vehicle headlights or

taillights, refuse to stop the vehicle, or use other means with

ALMANZA-ARENAS V. LYNCH 21

intent to attempt to elude a peace officer” was indivisible,

despite its disjunctive text. 754 F.3d at 554–55. Relying on

Minnesota state law and practice jury instruction guides, the

Eight Circuit concluded that “the statute does not require the

factfinder (whether jury or judge) to determine how the

defendant fled (i.e., the means of flight) because the method

used to flee the peace officers is not an element of the crime.”

Id. at 554 (internal quotation marks and citations omitted).

The Fourth Circuit similarly concluded that it must look to

how courts “generally instruct juries” with respect to the

statute at issue. See Omargharib, 775 F.3d at 199.

We recognize that not all of our sister circuits agree that

courts should look to state law to determine a statute’s

elements following Descamps. See United States v. Trent,

767 F.3d 1046, 1061 (10th Cir. 2014), cert. denied, 135 S. Ct.

1447 (2015); Franco-Casasola v. Holder, 773 F.3d 33, 37–38

(5th Cir. 2014) (“[A] divisible statute is one defined

‘alternatively, with one statutory phrase corresponding to the

generic crime and another not.’” (quoting Descamps, 133 S.

Ct. at 2286)).17 In Trent, the Tenth Circuit questioned

whether the Supreme Court meant to use the term “elements”

in the “traditional sense.” 767 F.3d at 1061. The Trent court

effectively suggested that the difference between elements

and means under Descamps is a distinction without a

difference, because the Supreme Court limited a court’s

ability to determine whether a statute is divisible by solely

looking at the Taylor and Shepard documents (indictment,

jury instructions, plea colloquy, and plea agreement). Id.

17

The Fifth Circuit has not addressed the elements versus means

distinction, but rather seems to apply the modified approach to all

disjunctive subsections.

22 ALMANZA-ARENAS V. LYNCH

(citing Descamps, 133 S. Ct. at 2285 n.2).18 The Trent court

recognized that its analysis could be flawed and continued its

analysis using the traditional elements and means definitions

supplied by Richardson and Schad. See id.

This circuit split arises from a disagreement regarding the

meaning of footnote 2 in Descamps. See Descamps, 133 S.

Ct. at 2285 n.2. In responding to Justice Alito’s dissent,

criticizing the majority’s nuances concerning elements versus

means, the Descamps majority provided:

And if the dissent’s real point is that

distinguishing between “alternative elements”

and “alternative means” is difficult, we can

see no real-world reason to worry. Whatever

a statute lists (whether elements or means),

the documents we approved in Taylor and

Shepard—i.e., indictment, jury instructions,

plea colloquy, and plea agreement—would

reflect the crime’s elements. So a court need

not parse state law in the way the dissent

suggests: When a state law is drafted in the

alternative, the court merely resorts to the

approved documents and compares the

elements revealed there to those of the generic

offense.

18

Judge Watford agrees with these sister circuits and would treat

elements and means interchangeably. His approach does not seem to

narrow the range of cases where we can look beyond the statutory

elements. See Descamps, 133 S. Ct. at 2283–84. Instead, it sets our

analysis back to almost where we were pre-Descamps, inventing ways to

make a statute divisible.

ALMANZA-ARENAS V. LYNCH 23

Id. We read this footnote as a guide to courts to look at

Taylor and Shepard documents if there were difficulty in

distinguishing between the elements and means and what a

jury necessarily would have to unanimously conclude.19 The

Supreme Court is clear: “Whatever a statute lists (whether

elements or means), the documents we approved in Taylor

and Shepard . . . would reflect the crime’s elements. . . .

When a state law is drafted in the alternative, the court

merely resorts to the approved documents and compares the

elements revealed there to those of the generic offense.” Id.

(emphasis added). This statement is consistent with the

Supreme Court’s instruction that the modified approach “acts

not as an exception, but instead as a tool. It retains the

categorical approach’s central feature: a focus on the

elements, rather than the facts, of a crime.” Id. at 2285. This

explanation cannot be read to suggest that elements and

means are one and the same. If the Supreme Court wanted to

say that there was no material difference between the two

19

Although we are mindful of the Supreme Court’s warning that “a

court need not parse state law” to determine elements versus means,

Descamps, 133 S. Ct. at 2285 n.2, we do not interpret Descamps to

suggest that we can never look to state law. In Descamps, the Supreme

Court rejected the government’s argument that the element of “enters,”

Cal. Penal Code § 459, was divisible by finding contradictory case law.

Id. at 2291. The Supreme Court reserved the question of whether a “court

should take account not only of the relevant statute’s text, but of judicial

rulings interpreting it.” Id. In this context, however, the reservation

seems limited to unmentioned elements. See id. at 2296–97 (Alito, J.,

dissenting) (noting that “courts sometimes find that unmentioned elements

are implicit”). The Descamps decision (which was not based on a

disjunctively worded statute) does not purport to overrule prior precedent

that allows a court to look to state law to determine whether the statute of

conviction contains elements or means when it is phrased in the

disjunctive. Rather, it only precludes courts from “parsing state law” in

order to reach a desired result. See id. at 2285 n.2.

24 ALMANZA-ARENAS V. LYNCH

terms, it knew how to do so. Thus, means or methods of

committing an offense, in this context, is nothing more than

focusing on the facts, which we are forbidden to do in a

categorical analysis.

Determining the elements of section 10851(a), as defined

by California law, we need not go beyond California’s pattern

criminal jury instructions20 (“CALJIC”) (in effect at the time

Almanza pleaded guilty).21 CALJIC 14.36 provides the

appropriate instruction for persons who are charged with

violating California Vehicle Code § 10851(a). It provides

that a jury must find the following elements of the crime:

1. A person took or drove a vehicle belonging

to another person;

2. The other person had not consented to the

taking or driving of [his] [her] vehicle; and

3. When the person took or drove the vehicle,

[he] [she] had the specific intent to deprive

20

Jury instructions are Shepard “approved” documents only when they

are submitted in the underlying action as part of the record. Shepard v.

United States, 544 U.S. 13, 20–21 (2005). Jury instructions do not exist

in this case where Almanza pleaded guilty.

21

The use of the pattern CALJIC jury instructions is “not mandated by

statute, [but] their use is recommended by the Judicial Council of

California (Cal. Standards Jud. Admin., § 5).” People v. Prettyman,

926 P.2d 1013, 1021 (Cal. 1996). “[T]he Judicial Council has

recommended their use, when applicable, ‘unless the trial judge finds that

a different instruction would more adequately, accurately or clearly state

the law.’” Mitchell v. Gonzales, 819 P.2d 872, 884 n.2 (Cal. 1991)

(Kennard, J., dissenting) (alteration omitted) (citing Cal. Standards Jud.

Admin., § 5)).

ALMANZA-ARENAS V. LYNCH 25

the owner either permanently or temporarily

of [his] [her] title to or possession of the

vehicle.

This jury instruction makes clear that California law treats the

disjunctive phrases in the statute as means of committing the

offense not separate elements creating new crimes.

Therefore, the distinction between whether Almanza intended

to permanently or temporarily deprive the owner of his or her

vehicle need not be determined by an unanimous jury. Thus,

section 10851(a) is an indivisible statute.

This conclusion ends our inquiry; we need not proceed to

step three. We have “examine[d] what the state conviction

necessarily involved, not the facts underlying the case, [and]

we must presume that the conviction rested upon nothing

more than the least of the acts criminalized.” Moncrieffe v.

Holder, 133 S. Ct. 1678, 1684 (2013) (internal quotation

marks and alterations omitted) (emphasis added). Because

the least of the acts criminalized under section 10851(a) is a

temporary taking, the statute is not categorically a crime

involving moral turpitude.

The petitions for review are GRANTED, and the matter

is REMANDED to the BIA for further proceedings.

26 ALMANZA-ARENAS V. LYNCH

OWENS, Circuit Judge, joined by TALLMAN, BYBEE, and

CALLAHAN, Circuit Judges, concurring:

We should no longer tinker with the machinery of

Descamps.

While I join the majority opinion because it correctly

applies our precedent, I do not agree that our precedent is

correct. Under the current framework, hardened criminals

avoid removal due to the vagaries of one state’s law, while

much softer individuals get shipped overseas because of the

indictment template used in a different office. The only

consistency in these cases is their arbitrariness. The

bedeviling “modified categorical approach” will continue to

spit out intra- and inter-circuit splits and confusion, which are

inevitable when we have hundreds of federal judges

reviewing thousands of criminal state laws and certain

documents to determine if an offense is “categorically a crime

involving moral turpitude.” Almost every Term, the Supreme

Court issues a “new” decision with slightly different language

that forces federal judges, litigants, lawyers and probation

officers to hit the reset button once again.

A better mousetrap is long overdue. Rather than compete

with Rube Goldberg, we instead should look to a more

objective standard, such as the length of the underlying

sentence, before deciding if someone should be removed

from our country. While no regime is foolproof, this

approach cannot be worse than what we have now.

To make this happen, we need Congress’s attention. And

to get Congress’s attention, the Supreme Court may need to

wipe the slate clean by junking the current state of law. See

Johnson v. United States, 135 S. Ct. 2551, 2560 (2015)

ALMANZA-ARENAS V. LYNCH 27

(“Nine years’ experience trying to derive meaning from the

residual clause [of the Armed Career Criminal Act] convinces

us that we have embarked upon a failed enterprise.”).1

We are way past that here.

WATFORD, Circuit Judge, concurring in the judgment:

I agree that Gabriel Almanza-Arenas’ conviction under

California Vehicle Code § 10851(a) is not a conviction for a

crime involving moral turpitude. But I disagree with the

court’s conclusion, predicated on the same reasoning our

court adopted in Rendon v. Holder, 764 F.3d 1077 (9th Cir.

2014), that § 10851(a) is an “indivisible” statute. I would

overrule Rendon, as I think its approach to divisibility

analysis is inconsistent with the approach required by

Descamps v. United States, 133 S. Ct. 2276 (2013). I will be

the first to admit, though, that the correct reading of

Descamps (and in particular its footnote 2) is open to debate,

as reflected by the clash between the panel’s opinion in

Rendon and the opinions dissenting from our refusal to rehear

1

See also Descamps v. United States, 133 S. Ct. 2276, 2294 (2013)

(Kennedy, J., concurring) (“If Congress wishes to pursue its policy in a

proper and efficient way without mandating uniformity among the States

with respect to their criminal statutes for scores of serious offenses, and

without requiring the amendment of any number of federal criminal

statutes as well, Congress should act at once.”); United States v. Fish,

758 F.3d 1, 18 (1st Cir. 2014) (noting that “the great variation between the

different states’ criminal statutes has flummoxed the federal courts” and

that the duty to determine whether a prior conviction qualifies as a

predicate offense “seems a better fit for Congress or an administrative

agency” than a court).

28 ALMANZA-ARENAS V. LYNCH

that case en banc.1 Given how frequently questions of

divisibility arise, in both the criminal and immigration

contexts, we need a clear and easy-to-apply rule for

distinguishing between statutes that are divisible and those

that are not. If not in this case then hopefully in another case

soon, the Supreme Court will step in to provide further

guidance.

I

The only question before us is whether Almanza-Arenas’

conviction under § 10851(a) counts as a conviction for a

crime involving moral turpitude under the cancellation of

removal statute. To answer that question, we use the so-

called “categorical approach,” which requires us to compare

the elements of the statute under which the petitioner was

convicted to the elements of the relevant generic offense to

see if the two sets of elements are a categorical match.

Descamps, 133 S. Ct. at 2281. The first step is to identify the

elements of the statute of conviction, and in our case that’s

easy to do. California Vehicle Code § 10851(a), as relevant

here, provides as follows: “Any person who drives or takes

a vehicle not his or her own, without the consent of the owner

thereof, and with intent either to permanently or temporarily

deprive the owner thereof of his or her title to or possession

of the vehicle . . . is guilty of a public offense . . . .” For our

purposes, the statute has three elements: (1) the actus reus,

1

See Rendon v. Holder, 782 F.3d 466, 467–73 (9th Cir. 2015) (Graber,

J., dissenting from denial of rehearing en banc); id. at 473–74 (Kozinski,

J., dissenting from denial of rehearing en banc); see also United States v.

Mathis, 786 F.3d 1068, 1074–75 & n.6 (8th Cir. 2015); Omargharib v.

Holder, 775 F.3d 192, 198–200 (4th Cir. 2014); id. at 200–02 (Niemeyer,

J., concurring); United States v. Trent, 767 F.3d 1046, 1058–63 (10th Cir.

2014); United States v. Howard, 742 F.3d 1334, 1343–49 (11th Cir. 2014).

ALMANZA-ARENAS V. LYNCH 29

which can be satisfied by either driving or taking a vehicle

belonging to someone else; (2) the attendant circumstance

that the taking or driving be without the owner’s consent; and

(3) the mens rea, which can be satisfied by intending either to

permanently or temporarily deprive the owner of the vehicle.

The next step is to compare those elements to the

elements of the relevant generic offense. In this instance, we

don’t have a federal statute that specifies the relevant generic

offense. The cancellation of removal statute simply refers to

“a crime involving moral turpitude.” 8 U.S.C.

§§ 1229b(b)(1)(C), 1182(a)(2). The Board of Immigration

Appeals (BIA) has given substance to that vague phrase by

specifying over time which generic offenses involve moral

turpitude and which do not. With respect to the closest

analogue for our purposes, the BIA has held that a theft

offense constitutes a crime involving moral turpitude if the

defendant intended to permanently deprive the owner of the

property, but not if the defendant intended to effect only a

temporary deprivation. See Castillo-Cruz v. Holder, 581 F.3d

1154, 1159–60 (9th Cir. 2009).

Comparing the elements of § 10851(a) to the relevant

generic offense, it’s clear that § 10851(a) is not a categorical

match. The statute “criminalizes a broader swath of conduct

than the relevant generic offense,” Descamps, 133 S. Ct. at

2281, by sweeping in car thieves who intended only a

temporary deprivation as well as those who intended a

permanent deprivation.

That conclusion, however, does end not our inquiry.

Whenever a state statute covers a broader range of conduct

than the relevant generic offense, we ask whether the statute

is divisible—that is, whether the statute “comprises multiple,

30 ALMANZA-ARENAS V. LYNCH

alternative versions of the crime.” Id. at 2284. If it does, and

if at least one of those alternatives would be a categorical

match for the generic offense, we then use the modified

categorical approach to figure out which version of the

offense the defendant was convicted of. Id. at 2285.

So when does a statute comprise “multiple, alternative

versions of the crime”? Descamps seems to offer a simple

answer: whenever the statute itself specifies, in the

alternative, multiple ways a particular element can be

satisfied. Take the two hypothetical divisible statutes the

Court mentioned in Descamps: a burglary statute prohibiting

unlawful entry into either a building or an automobile; and an

assault statute requiring use of a gun, axe, sword, baton,

slingshot, knife, machete, or bat. Id. at 2281, 2289–90.

Those statutes are divisible because they specify the

alternative ways one element of the offense can be satisfied.

The statutes would therefore allow a prosecutor to narrow the

offense by selecting one of the specified alternatives as the

basis for the charge. For example, if a prosecutor charged the

defendant under the first statute with entering a building, and

the jury was accordingly instructed that it had to find that the

defendant entered a building in order to convict, we would

know the defendant was convicted of the entry-into-a-

building version of the offense rather than the entry-into-an-

automobile version.

We have real-world examples of divisible statutes, too.

In Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the Court

treated as divisible “a Georgia statute that makes it a crime to

‘possess, have under [one’s] control, manufacture, deliver,

distribute, dispense, administer, purchase, sell, or possess

with intent to distribute marijuana.’” Id. at 1685 (quoting Ga.

Code Ann. § 16-13-30(j)(1)). Each of those disjunctively

ALMANZA-ARENAS V. LYNCH 31

listed phrases was deemed to describe an alternative version

of the offense, and by consulting the petitioner’s plea

agreement the Court determined that he had been convicted

of the possession-with-intent-to-distribute version. Id. The

Court then analyzed whether that version of the offense was

a categorical match for the relevant generic offense.

Contrast those statutes with the statute Descamps held is

not divisible (at least with respect to the element at issue in

that case). California Penal Code § 459 provides that every

person who “enters any house, room, apartment, [or any of

about two dozen other locations] with intent to commit grand

or petit larceny or any felony is guilty of burglary.” That

statute has several elements, two of which could potentially

have been divisible: the location that must be entered (house,

room, etc.) and the required mens rea (intent to commit grand

larceny, petit larceny, or any felony). The Court did not need

to explore whether those elements were divisible because the

statute’s remaining element—the “entry” element—was

indivisible and rendered the statute broader than the generic

burglary offense. The generic offense requires “breaking and

entering or similar conduct,” whereas the California statute

covers any person who “enters” certain locations, whether the

entry is lawful or unlawful. Descamps, 133 S. Ct. at 2282.

(The Court noted, for example, that the statute covers “a

shoplifter who enters a store, like any customer, during

normal business hours.” Id.) The Court held that the “entry”

element of § 459 is indivisible because it does not contain

alternative statutory phrases, “with one statutory phrase

corresponding to the generic crime and another not.” Id. at

2286. Instead, the statute contains just a single

term—“enters”—which is itself overbroad. Thus, a

prosecutor could not narrow the offense by selecting from a

32 ALMANZA-ARENAS V. LYNCH

list of statutorily specified alternatives describing the

different ways the entry element could be satisfied.

What seems to define a divisible statute, then, is the fact

that the statute itself specifies alternative ways a particular

element can be satisfied. Id. at 2285 n.2. That allows the

court to determine, at least potentially, “which statutory

phrase was the basis for the conviction.” Id. at 2285.

Indivisible statutes, by contrast, lack this defining textual

feature. They contain a single statutory phrase that is not

broken down into statutorily specified alternatives, each of

which would be sufficient to satisfy the element. Under the

approach to divisibility that Descamps seems to require, we

don’t need to look beyond the text of the statute to decide

whether it’s divisible: If the statute is “drafted in the

alternative,” id. at 2285 n.2—meaning it contains alternative

statutory phrases describing the different ways a particular

element can be met—the statute is divisible with respect to

that element. If not, the statute is indivisible.2

Assuming I’m right about Descamps’ approach to

divisibility, this is an easy case. Section 10851(a) seems no

different from the divisible statutes I mentioned earlier. It

defines an element of the offense—the mens rea with which

the defendant must act—by specifying alternative ways that

element can be satisfied: either by intending to permanently

deprive the owner of the vehicle, or by intending to

temporarily deprive the owner of the vehicle. No less than in

the other statutes, the alternative statutory phrases describe

2

Contrary to the majority’s suggestion, nothing about this approach to

divisibility requires looking at “the facts of each case” to “discover the

means of how the person committed the offense.” Maj. op. at 18 n.14. It

just requires looking at the text of the statute.

ALMANZA-ARENAS V. LYNCH 33

alternative versions of the crime, which would allow a

prosecutor to narrow the offense by selecting one of the

statutorily specified alternatives.

Some judges on our court, including the panel members

in Rendon and the majority of the en banc panel in this case,

have rejected this straightforward approach to divisibility.

They have concluded that it is not enough, as Descamps

seems to hold, that a statute is “drafted in the alternative.”

They believe we must ask, in addition, whether the statute’s

disjunctively listed phrases describe alternative “means” or

alternative “elements.” To answer that question, they say, we

must consult state case law and model jury instructions.

Doing so will tell us, in a case in which the prosecutor

charges multiple alternative statutory phrases, whether the

jury must unanimously agree on one of them in order to

convict. If jury unanimity is required, the statutory phrases

are alternative elements; if jury unanimity is not required, the

statutory phrases are alternative means. A statute may be

deemed divisible if it contains alternative elements, but not if

it contains alternative means. Or so the thinking goes. See

Maj. op. at 15–25.

This focus on distinguishing between “elements” and

“means” seems inconsistent with Descamps’ approach to

divisibility. For one thing, the Court in Descamps never

suggested that state case law or model jury instructions would

need to be consulted in order to determine whether a statute

is divisible. As noted above, the Court seemed to hold that

the analysis involves a purely textual inquiry. The Court

looked to state case law and model jury instructions only

when determining what conduct was encompassed by a

particular element, a matter that state law unquestionably

34 ALMANZA-ARENAS V. LYNCH

controls. See Descamps, 133 S. Ct. at 2282 (citing People v.

Barry, 29 P. 1026 (Cal. 1892)); id. at 2291–92 n.5.

For another thing, in response to the dissent’s emphasis

on the distinction between elements and means, the Court

seemed to indicate that such a distinction is irrelevant, at least

for purposes of determining whether a statute is divisible.

“Whatever a statute lists (whether elements or means),” the

Court wrote, “the documents we approved in Taylor and

Shepard—i.e., indictment, jury instructions, plea colloquy,

and plea agreement—would reflect the crime’s elements. So

a court need not parse state law in the way the dissent

suggests: When a state law is drafted in the alternative, the

court merely resorts to the approved documents and compares

the elements revealed there to those of the generic offense.”

Id. at 2285 n.2.

Lower courts have offered conflicting readings of this

passage. (See, for example, the cases cited in note 1, supra.)

What I understand the passage to say is that it doesn’t matter

whether alternative statutory phrases would be labeled

“elements” or “means” under state law. Whether a statute is

divisible under the categorical approach is a question of

federal law, and we can assess divisibility based on an

examination of the text of the statute alone. If the statute is

drafted in the alternative, it’s at least possible that the offense

of conviction was narrowed by selecting one of the statutorily

specified alternatives. Examination of the documents

approved in Shepard v. United States, 544 U.S. 13 (2005),

and Taylor v. United States, 495 U.S. 575 (1990)—which I

will refer to in short as the Shepard documents—will tell us

if that is true.

ALMANZA-ARENAS V. LYNCH 35

For example, let’s assume a statute contains three

alternative statutory phrases that would be deemed “means”

rather than “elements” under state law, because in a case

charging all three the jury would not need to agree

unanimously on which one was satisfied. Even in that

scenario, the offense of conviction could still be narrowed if,

for example, in the specific case at hand the prosecutor

actually charged only one of the statutory phrases. Or even

if the prosecutor charged all three in the disjunctive, the

defendant may have admitted just one of them in his plea

agreement and plea colloquy. Or, if the case proceeded to

trial, the jury may have been instructed on just one of the

statutory phrases, such that the jury had to find that particular

phrase satisfied in order to convict. In those cases, too, by

examining the Shepard documents a court could determine

“which statutory phrase was the basis for the conviction.”

Descamps, 133 S. Ct. at 2285. That, it seems to me, is what

the Court meant when it said that, regardless of whether

alternative statutory phrases are called elements or means as

a general matter, the Shepard documents will tell us what the

elements of the offense of conviction were in the specific case

at hand. The approach to divisibility my colleagues have

adopted here cannot be squared with this reading of

Descamps.3

3

One aspect of the majority’s approach that seems especially at odds

with Descamps is the majority’s reliance on the Shepard documents in

Almanza-Arenas’ own case to “confirm” its view that § 10851(a) is

indivisible. Maj. op. at 16–17. A statute’s divisibility isn’t determined on

a case-by-case basis, so it’s hard to see why one would consult the

Shepard documents in any given case when trying to make that threshold

determination. As I understand Descamps’ instructions, we may look to

the Shepard documents only after we’ve first determined that the statute

is divisible, not when trying to decide whether the statute is divisible or

indivisible.

36 ALMANZA-ARENAS V. LYNCH

II

If § 10851(a) is indeed divisible, we can apply the

modified categorical approach, which allows us to review the

Shepard documents to see if Almanza-Arenas was convicted

of a narrower version of the offense. The Shepard documents

include the indictment or information and, in cases resolved

by guilty plea, the plea agreement and plea colloquy.

Descamps, 133 S. Ct. at 2284. If Almanza-Arenas was in fact

convicted of a narrower version of the offense, we would then

compare the elements of that version of the offense to the

elements of the generic offense to see if they categorically

match, just as we would under the regular, unmodified

categorical approach. See id. at 2285.

I concur in the court’s judgment because the Shepard

documents in this case do not establish that Almanza-Arenas

was convicted of a narrower version of the § 10851(a)

offense. Count 1 of the complaint charged that, on a

specified date, Almanza-Arenas “did unlawfully drive and

take a vehicle, the personal property of Guadalupe Jimenez,

without the consent of and with intent either permanently or

temporarily to deprive the owner of title to and possession of

said vehicle.” (Emphasis added.) Almanza-Arenas entered

a guilty plea to Count 1 under People v. West, 477 P.2d 409

(Cal. 1970), which means he entered the plea without

admitting a factual basis for it. Because the complaint

charged that Almanza-Arenas acted with the intent to

permanently or temporarily deprive the owner of the vehicle,

the prosecutor did not narrow the offense by selecting one of

the alternative statutory phrases. Nor was the offense

narrowed when Almanza-Arenas pleaded guilty. Neither in

his plea agreement nor, we can safely assume, during the plea

colloquy did Almanza-Arenas select one of the alternative

ALMANZA-ARENAS V. LYNCH 37

statutory phrases and admit to a factual basis satisfying that

statutory phrase alone. Almanza-Arenas entered a West plea,

so he did not admit to a factual basis for anything. He simply

pleaded guilty to the offense as described in Count 1.

In this instance, then, use of the modified categorical

approach does not show that Almanza-Arenas was convicted

of a narrower version of the offense. It establishes only that

he was convicted of the broader version, encompassing an

intent to permanently or temporarily deprive the owner of the

vehicle. When a defendant pleads guilty to an offense

encompassing multiple, alternative ways of satisfying a

particular element, the conviction is deemed to rest on only

the least of the acts criminalized. Mellouli v. Lynch, 135 S.

Ct. 1980, 1986 (2015). Thus, under the modified categorical

approach, Almanza-Arenas’ conviction necessarily

establishes only that he took the victim’s vehicle with the

intent to temporarily deprive her of possession. That version

of the offense, as noted earlier, is not a categorical match for

the generic theft offense that counts as a crime involving

moral turpitude.

The government argues that Almanza-Arenas’ conviction

nonetheless qualifies as a conviction for a crime involving

moral turpitude because, under the cancellation of removal

statute, he bore the burden of proving eligibility for such

relief and one of the requirements for doing so is proving that

he has not been convicted of a crime involving moral

turpitude. When a petitioner seeking cancellation of removal

has been convicted under an overbroad statute like

§ 10851(a), the government contends that the record will

always be inconclusive as to which version of the offense he

committed: While it’s possible the petitioner committed the

version of the offense that is not a categorical match, it’s also

38 ALMANZA-ARENAS V. LYNCH

possible that he committed the version that is a categorical

match. Relying on our decision in Young v. Holder, 697 F.3d

976, 988–90 (9th Cir. 2012) (en banc), the government argues

that because the petitioner in these circumstances can’t rule

out the possibility that he committed a crime involving moral

turpitude, he has not carried his burden of proving eligibility

for relief.4

Both the government’s argument and our decision in

Young are fundamentally incompatible with the categorical

approach, especially after Descamps and Moncrieffe clarified

the elements-focused nature of the inquiry. Under the

categorical approach, a court must determine “what facts are

necessarily established by a conviction for the state offense.”

Moncrieffe, 133 S. Ct. at 1693 n.11. What the defendant

actually did to commit the crime is entirely irrelevant.

Descamps, 133 S. Ct. at 2287–89.

It’s true, as the government notes, that uncertainty

remains as to what Almanza-Arenas actually did to violate

§ 10851(a). He may have acted with the intent to

permanently deprive the victim of her vehicle, or he may

have intended only a temporary deprivation—we don’t know.

But uncertainty on that score doesn’t matter. What matters

here is whether Almanza-Arenas’ conviction necessarily

established that he acted with the intent to permanently

deprive the owner of her vehicle, the fact required to render

the offense a crime involving moral turpitude. That is a legal

question with a yes or no answer, see Mellouli, 135 S. Ct. at

4

Several other circuits have adopted the rule in Young. See Peralta

Sauceda v. Lynch, 804 F.3d 101, 103 (1st Cir. 2015) (collecting cases).

The Second Circuit has rejected the rule. Martinez v. Mukasey, 551 F.3d

113, 121–22 (2d Cir. 2008).

ALMANZA-ARENAS V. LYNCH 39

1986–87, and here the answer is no: Almanza-Arenas’

conviction necessarily established only that he acted with the

intent to temporarily deprive the owner of her vehicle. The

record is not inconclusive in that regard, and because this

issue involves a purely legal determination (rather than a

factual determination, as Young wrongly held), its resolution

is unaffected by which party bears the burden of proof. As a

legal matter, Almanza-Arenas’ § 10851(a) conviction does

not qualify as a conviction for a crime involving moral

turpitude.

III

The BIA relied on an alternative ground for declaring

Almanza-Arenas ineligible for cancellation of removal, but

that ground is also legally unsound.

During the proceedings before the immigration judge, the

government produced some of the Shepard documents

relating to Almanza-Arenas’ § 10851(a) conviction. The

government did not, however, produce a transcript of the plea

colloquy, no doubt recognizing that it wouldn’t reveal any

useful information, since Almanza-Arenas entered a West

plea. Nonetheless, the immigration judge ordered Almanza-

Arenas to produce the plea colloquy. When Almanza-Arenas

failed to do so, the immigration judge relied on that failure to

conclude that he had not carried his burden of proving

eligibility for relief. The BIA affirmed the immigration

judge’s ruling.

The BIA’s decision might have been supportable had the

immigration judge ordered Almanza-Arenas to produce a

Shepard document potentially relevant to the analysis

required under the modified categorical approach. Congress

40 ALMANZA-ARENAS V. LYNCH

has assigned petitioners seeking cancellation of removal the

burden of proving eligibility for such relief. 8 U.S.C.

§ 1229a(c)(4). It would be an odd regime in which a

petitioner could establish eligibility by refusing to produce a

document that might show he is statutorily ineligible, at least

where the immigration judge specifically orders production

of such a document and the petitioner is capable of complying

with the order. But that is not the situation here. Because

Almanza-Arenas entered a West plea, he made no factual

admissions in the course of pleading guilty. See People v.

Rauen, 133 Cal. Rptr. 3d 732, 734 (Ct. App. 2011).

Production of the plea colloquy would therefore have had no

bearing on the analysis required under the modified

categorical approach. The BIA erred by declaring Almanza-

Arenas ineligible for cancellation of removal solely because

he failed to produce an irrelevant document.