Leonel Sandoval v. Sally Yates

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEONEL SANDOVAL, AKA Lione No. 13-71784

Sandoval,

Petitioner, Agency No.

A090-808-120

v.

SALLY Q. YATES,* Acting Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted November 8, 2016

Portland, Oregon

Filed January 27, 2017

Before: M. Margaret McKeown, William A. Fletcher

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

*

Sally Q. Yates is substituted for her predecessor, Loretta E. Lynch,

as Acting Attorney General of the United States, pursuant to Fed. R. App.

P. 42(c)(2).

2 SANDOVAL V. YATES

SUMMARY**

Immigration

The panel granted Leonel Sandoval’s petition for review

of the Board of Immigration Appeals’ decision finding him

ineligible for cancellation of removal based on his conviction

for delivery of a controlled substance under Oregon Revised

Statutes § 475.992(1)(a), and remanded.

The panel held that the Oregon law is not a categorical

aggravated felony, because its definition of “delivery”

includes mere solicitation, and the federal Controlled

Substances Act does not punish soliciting delivery of

controlled substances. The panel further held that because no

“commercial element” is included in the Oregon statute, it is

not a categorical match to an “illicit trafficking” offense.

The panel also held that the modified categorical

approach does not apply because the Oregon law is

indivisible with respect to whether an “attempt” is

accomplished by solicitation.

**

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

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

SANDOVAL V. YATES 3

COUNSEL

Brian Patrick Conry (argued), Portland, Oregon, for

Petitioner.

Song E. Park (argued), Senior Litigation Counsel; Cindy S.

Ferrier, Assistant Director; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

FISHER, Circuit Judge:

Sandoval was convicted of delivery of a controlled

substance under Oregon Revised Statutes § 475.992(1)(a).1

Oregon law permits conviction for delivery under this statute

based on mere solicitation. Because the Controlled

Substances Act does not punish soliciting delivery of

controlled substances, § 475.992(1)(a) cannot be a categorical

match to an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii). Further, because § 475.992(1)(a) is

indivisible, the modified categorical approach does not apply.

Therefore, we grant Sandoval’s petition and remand for

further proceedings.

I

Leonel Sandoval moved to the United States from Mexico

when he was nine years old. He adjusted to lawful permanent

1

This statute is currently codified at Oregon Revised Statutes

§ 475.752.

4 SANDOVAL V. YATES

resident status in 1990. His wife of over 26 years and two

children are United States citizens.

In 1998, Sandoval was convicted of delivery of a

controlled substance under Oregon law. The indictment

identified the controlled substance as heroin. He performed

community service at a forest project and was placed on

probation for two years. Since then, he has not been

convicted of any other criminal activity. Twelve years later,

the government instituted removal proceedings against him.

It alleged two grounds for removal based on Sandoval’s 1998

conviction: (1) that the conviction was an aggravated felony

and (2) that the conviction was related to a controlled

substance. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Under

the second charge, Sandoval could seek cancellation of

removal based on his long-standing residence and family ties

in the United States. But the first charge made him ineligible

for such relief. See id. § 1229b(a)(3). Accordingly, Sandoval

argued the government had failed to offer clear and

convincing evidence he was convicted of an aggravated

felony because Oregon’s statute is broader than a federal

controlled substance offense given that it punishes solicitation

in addition to actual and attempted delivery. The IJ and BIA

rejected this argument, concluded he was ineligible for

cancellation of removal and ordered him removed.

Sandoval timely petitioned for review. We have

jurisdiction and review Sandoval’s petition de novo. See

8 U.S.C. § 1252(a)(2)(D); Daas v. Holder, 620 F.3d 1050,

1053 (9th Cir. 2010); see also Coronado-Durazo v. INS,

123 F.3d 1322, 1324 (9th Cir. 1997). We do not defer to an

agency’s interpretations of state law or provisions of the

federal criminal code. See Hoang v. Holder, 641 F.3d 1157,

1161 (9th Cir. 2011).

SANDOVAL V. YATES 5

II

To determine whether a state criminal conviction is an

aggravated felony, we must follow the “categorical

approach.” See Descamps v. United States, 133 S. Ct. 2276,

2281 (2013). Under this approach, we “compare the elements

of the statute forming the basis of the [petitioner’s] conviction

with the elements of the ‘generic’ crime – i.e., the offense as

commonly understood.” Id. Only if the elements in the

petitioner’s statute of conviction “are the same as, or

narrower than, those of the generic offense” is the petitioner’s

conviction a categorical match. Id.

Under the categorical approach, we first determine the

definition of the generic offense – here, an aggravated felony.

This requires us to navigate a “maze of statutory cross-

references.” Carachuri-Rosendo v. Holder, 560 U.S. 563,

567 (2010). We start with the definition of “aggravated

felony” as used in 8 U.S.C. § 1101(a)(43).

The term “aggravated felony” includes two federal

controlled substance offenses relevant to this appeal:

(1) “illicit trafficking in a controlled substance,” which

includes (2) any “drug trafficking crime.” 8 U.S.C.

§ 1101(a)(43)(B). Only felonies qualify as “illicit

trafficking” offenses or “drug trafficking crime[s].” See

Lopez v. Gonzales, 549 U.S. 47, 55, 60 (2006). A “felony”

means an offense punishable by more than one year under

federal law. See 18 U.S.C. § 3559(a)(5); see also Moncrieffe

v. Holder, 133 S. Ct. 1678, 1683 (2013); Lopez, 549 U.S. at

60 (“In sum, we hold that a state offense constitutes a ‘felony

punishable under the Controlled Substances Act’ only if it

6 SANDOVAL V. YATES

proscribes conduct punishable as a felony under that federal

law.”).2

The elements of an “illicit trafficking” offense are not

statutorily defined. See 8 U.S.C. § 1101. But the Supreme

Court has said an illicit trafficking offense includes “some

sort of commercial dealing.” Lopez, 549 U.S. at 53; see also

Carachuri-Rosendo, 560 U.S. at 574.

The elements of a “drug trafficking crime” are more

readily determined. Drug trafficking crimes include felonies

punishable under the Controlled Substances Act. See

8 U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2). Because

heroin is a federally controlled substance, see 8 U.S.C.

§ 1101(a)(43)(B); 21 U.S.C. §§ 802(6), 812(c)(sched.

I)(b)(10), knowingly distributing or possessing with intent to

distribute heroin violates the Controlled Substances Act, see

21 U.S.C. § 841(a)(1). Doing so is a felony, i.e., a crime

punishable by more than one year of imprisonment under

federal law. See 21 U.S.C. § 841(b)(1)(C). Accordingly,

because distributing heroin is a drug trafficking crime, we

must consider the meaning of “distribute.”

The term “distribute” means “deliver.” See 21 U.S.C.

§ 802(11). And “deliver” means “the actual, constructive, or

attempted transfer of a controlled substance or a listed

chemical, whether or not there exists an agency relationship.”

Id. § 802(8). Accordingly, one may commit a drug

2

The Controlled Substances Act defines “felony” as “any Federal or

State offense classified by applicable Federal or State law as a felony.”

21 U.S.C. § 802(13). But 18 U.S.C. § 3559(a) controls for immigration

purposes. See Moncrieffe, 133 S. Ct. at 1683; see also Carachuri-

Rosendo, 560 U.S. at 567.

SANDOVAL V. YATES 7

trafficking crime by actually delivering, attempting to deliver

or possessing with intent to deliver heroin.

Because Sandoval argues the Oregon statute under which

he was convicted criminalizes solicitation, we must next

determine whether generic attempted delivery also includes

solicitation. The Controlled Substances Act does not define

the term “attempt.” See 21 U.S.C. §§ 802, 846.

Nevertheless, as the government concedes, mere solicitation

of controlled substances does not constitute “attempted”

delivery under federal law. See United States v. Rivera-

Sanchez, 247 F.3d 905, 908–09 (9th Cir. 2001) (en banc),

superseded on other grounds as stated in Guerrero-Silva v.

Holder, 599 F.3d 1090, 1092 (9th Cir. 2010); see also Leyva-

Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-

Durazo, 123 F.3d at 1325–26. The Controlled Substances

Act “does not mention solicitation,” unlike “attempt” and

“conspiracy.” Rivera-Sanchez, 247 F.3d at 909 (quoting

Leyva-Licea, 187 F.3d at 1150); see also Coronado-Durazo,

123 F.3d at 1325; 21 U.S.C. § 846 (prescribing felony

punishment for attempting or conspiring to deliver a

controlled substance). This is unsurprising, as “solicitation”

is the “act or an instance of requesting or seeking to obtain

something.” Solicitation, Black’s Law Dictionary (10th ed.

2014). While strongly corroborative of intent to commit a

crime, such a request does not cross the line between

preparation and attempt. See, e.g., United States v.

Yossunthorn, 167 F.3d 1267, 1272–73 (9th Cir. 1999)

(ordering drugs from a known supplier was not an attempt

when there was no agreement as to essential details regarding

the transaction).

Therefore, there are two federal offenses that may qualify

as aggravated felonies for the purposes of this case. The first

8 SANDOVAL V. YATES

is an illicit trafficking offense that must (1) contain a

“commercial dealing” element and (2) be punishable as a

felony under federal law. The second is a drug trafficking

crime for delivery of heroin satisfying the following

elements: (1) knowing or intentional (2) delivery, attempted

delivery, conspiracy to deliver or possession with intent to

deliver (3) heroin. The latter offense may not be

accomplished by merely soliciting delivery – i.e., offering

delivery – of heroin. The next question is whether

Sandoval’s Oregon statute of conviction matches either

federal definition.

Sandoval was convicted of delivering a controlled

substance. His indictment identifies the controlled substance

as heroin and cites Oregon Revised Statutes § 475.992. The

only portion of that statute proscribing delivery of heroin

states:

[I]t is unlawful for any person to manufacture

or deliver a controlled substance. Any person

who violates this subsection with respect to:

(a) A controlled substance in Schedule I, is

guilty of a . . . felony.

Or. Rev. Stat. § 475.992(1)(a) (1998). The term “deliver”

means “the actual, constructive or attempted transfer” of a

controlled substance from one person to another. Id.

§ 475.005(8) (1998). “A person is guilty of an attempt to

commit a crime when the person intentionally engages in

conduct which constitutes a substantial step toward

commission of the crime.” Id. § 161.405(1) (1998).

Under Oregon law, solicitation – even without possession

– is a “substantial step toward committing the crime of

SANDOVAL V. YATES 9

attempted delivery under ORS 475.992(1).” State v. Sargent,

822 P.2d 726, 728 (Or. Ct. App. 1991); see also State v.

Lawrence, 217 P.3d 1084, 1086 (Or. Ct. App. 2009). And,

taking a substantial step toward committing the crime of

attempted delivery by solicitation “constitutes delivery” in

Oregon. Sargent, 822 P.2d at 728.

Sargent relied on State v. Self, 706 P.2d 975 (Or. Ct. App.

1985), in concluding that mere solicitation supported a

conviction for delivery of controlled substances under

§ 475.992(1)(a). See Sargent, 822 P.2d at 728. There, the

defendant was convicted under Oregon’s generic solicitation

statute, Oregon Revised Statutes § 161.435. See Self,

706 P.2d at 977. The court set out the specific facts:

At the time of the commission of the instant

offense, defendant was serving a sentence in

the Lane County Jail. While at that facility,

he telephoned one Webb, whose foster

daughter he knew, in an attempt to obtain

Webb’s help in securing $2000 for the release

from jail of a third party, Brown. Defendant

made about six phone calls, the first two to the

foster daughter. During the fourth call, when

asked by Webb about collateral, defendant for

the first time said that, after his release,

Brown would go to two places in Eugene and

get the money to repay Webb. Then, as a

further reward, Webb and Brown would go to

San Francisco, where Brown would obtain

and give Webb five kilos of cocaine.

Id. The defendant was convicted of “solicitation of attempted

delivery of an illegal substance.” Id. The appellate court

10 SANDOVAL V. YATES

affirmed, “holding that the facts were sufficient to support his

conviction.” Sargent, 822 P.2d at 728.

That the appellate court in Sargent concluded the facts of

Self were “illustrative” is telling. See id. The defendant in

Self did not possess or even offer to deliver the cocaine. See

Self, 706 P.2d at 977. Instead, he tried to arrange the release

of a third party, promising that same third party would obtain

cocaine in exchange for assistance in the third party’s release.

See id. There was no agreement to accomplish this scheme.

See id. Further, the court recited no facts indicating the third

party’s willingness to perform the promised criminal acts.

See id. Nevertheless, the appellate court in Sargent pointed

to Self as the “illustrative” case supporting its conclusion that

“delivery” under § 475.992(1)(a) includes solicitation.

Sargent, 822 P.2d at 728. This holding has not been

disturbed by later Oregon case law.

For example, in State v. Pollock, 73 P.3d 297 (Or. Ct.

App. 2003), the court reversed a pretrial order suppressing

evidence against a defendant charged under § 475.992 for

delivery of a controlled substance. There, an officer had been

told by witnesses that the defendant had tried to sell them

ecstasy, a controlled substance. See id. at 298. The trial court

found that “an offer to sell a controlled substance is, standing

alone, insufficient to establish probable cause to believe that

an attempted transfer has occurred.” Id. at 299. The

appellate court reversed:

We conclude that offering to sell a controlled

substance constitutes a substantial step

toward a completed transfer of that substance.

As the court explained in State v. Walters,

311 Or. 80, 85, 804 P.2d 1164, cert. den.,

SANDOVAL V. YATES 11

501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d

979 (1991), “‘to be a substantial step the act

must be “strongly corroborative of the actor’s

criminal purpose,”’ . . . i.e., [the] defendant’s

conduct must (1) advance the criminal

purpose charged and (2) provide some

verification of the existence of that purpose.”

(Citations omitted.) An offer to sell a

controlled substance meets the two-part test

the court identified in Walters. It

“substantially advances” the goal of

completing the transaction. See id. An offer

to sell goes beyond mere preparation and

shows a commitment to completing the

transfer if the offer is accepted. Additionally,

the offer “provide[s] some verification of the

existence of [defendant’s criminal] purpose.”

See id. Taking defendant at his word, he

would have immediately transferred the

ecstasy to Andersen and Carver if they had

accepted his offer. At a minimum, the officer

reasonably could conclude from defendant’s

offer to sell a controlled substance that it was

more likely than not that he had intentionally

taken a substantial step toward the completed

transfer of that substance.

Id. at 300 (alterations in original) (emphases added). Thus,

under Oregon law, the offer to sell a controlled substance is

enough to complete a substantial step toward an intended

transfer, i.e., offering to sell a controlled substance is an

attempt under Oregon law. See id. The same is not true

under federal law. See Rivera-Sanchez, 247 F.3d at 908–09.

Accordingly, a statute that punishes the mere offer of a

12 SANDOVAL V. YATES

controlled substance is not an aggravated felony under the

categorical approach. See id. at 909.

The government concedes that simply offering to deliver

a controlled substance is not an aggravated felony.

Nevertheless, it contends § 475.992(1)(a) does not punish

simply offering a controlled substance, but requires more. It

relies on State v. Johnson, 123 P.3d 304 (Or. Ct. App. 2005).

We are not persuaded.

In Johnson, the defendant was convicted of both

attempted murder and solicitation to commit murder. See id.

at 306. During phone conversations and in online chats, the

defendant asked a friend to kill both his wife and daughter,

suggesting methods for the murders and offering to make sure

the friend would “never want for anything” if she did as

asked. See id. Because the state had no evidence of a

“concrete” plan outlined for the murder of his wife and child,

the defendant argued the evidence was insufficient to support

a solicitation or attempt conviction. See id. at 307–08. The

appellate court disagreed and affirmed his conviction on

appeal. See id. at 310. The government contends this case

stands for the proposition that mere solicitation – simply

offering to deliver a controlled substance – is not enough to

convict under § 475.992(1)(a). We do not read it that

broadly.

First, Johnson did not involve a controlled substance

offense under Oregon law. See id. at 305. Instead, it dealt

with attempted murder and solicitation to commit murder.

SANDOVAL V. YATES 13

See id. at 306.3 Thus, it is not clear whether Johnson is

applicable here.

Second, even if Johnson is applicable, the standards the

court outlined match those in Sargent:

In State v. Sargent . . ., we held that, “if a

person solicits another to engage in conduct

constituting an element of the crime of

delivery, e.g., to provide to the person a

controlled substance for the purpose of

distribution to third parties, the person has

attempted delivery . . . .” We see no reason to

depart from that reasoning here, and we

decline to hold that solicitation of a knowing

agent is categorically disqualified as a

“substantial step” under ORS 161.405.

Rather, as the statute plainly states,

solicitation requires a “substantial step.”

Solicitation of a guilty person qualifies as a

“substantial step” if, under the facts, the

defendant’s actions exceed mere preparation,

advance the criminal purpose charged, and

provide some verification of the existence of

that purpose.

Id. at 309–10 (footnotes omitted). The appellate court’s

reasoning in Johnson was that solicitation is both strong

evidence of criminal purpose and a substantial step toward

accomplishing that purpose under Sargent. See id. Nothing

in Johnson requires a defendant to take some affirmative act

3

We do not consider whether solicitation to commit murder is an

aggravated felony.

14 SANDOVAL V. YATES

to further the goal of the requested criminal behavior or

specify how the crime would take place. See id. at 308

(“[The] details of how the crime is to be committed need not

be specified.”).4 Johnson does not limit Sargent in any way.

In sum, the government’s argument fails to acknowledge

Sargent’s and Pollock’s explicit statements that a conviction

under § 475.992(1)(a) may be supported by merely offering

to deliver controlled substances. See Sargent, 822 P.2d at

728 (“We conclude that, if a person solicits another to engage

in conduct constituting an element of the crime of delivery

. . ., the person has taken a substantial step toward committing

the crime of attempted delivery . . . [and] [u]nder that statute,

the conduct constitutes delivery.”); Pollock, 73 P.3d at 300

(“We conclude that offering to sell a controlled substance

constitutes a substantial step toward a completed transfer of

that substance.”). As we have repeatedly held, solicitation of

controlled substances is not an aggravated felony. See, e.g.,

Rivera-Sanchez, 247 F.3d at 909.

Because Oregon’s definition of “delivery” includes

solicitation, § 475.992(1)(a) is not a categorical match to a

“drug trafficking crime.” Further, because no “commercial

element” is included in the Oregon statute, it also is not a

categorical match to an “illicit trafficking” offense.

4

This was exemplified in State ex rel. Juvenile Department of Union

County v. Krieger, 33 P.3d 351, 352 (Or. Ct. App. 2001), in which the

Oregon appellate court affirmed “without discussion” a conviction for

solicitation. There, a minor asked several students to help him “blow up

or shoot up” their school. See id. All of these requests were rejected and

the minor “never pursued any further discussion” or provided “specific

plans to carry out the shooting or bombing.” Id. Nevertheless, the

minor’s conviction for solicitation was summarily affirmed by the court.

See id.

SANDOVAL V. YATES 15

Therefore, Sandoval’s conviction for delivery of heroin does

not qualify as an aggravated felony under the categorical

approach.

III

Our inquiry does not end here, however. We must next

address whether the modified categorical approach may be

used to determine whether Sandoval’s conviction qualifies as

an aggravated felony.

Only divisible statutes are subject to the modified

categorical approach. See Lopez-Valencia v. Lynch, 798 F.3d

863, 867–69 (9th Cir. 2015) (holding Descamps divisibility

analysis is applicable in the immigration context).

“[D]ivisibility hinges on whether the jury must unanimously

agree on the fact critical to the federal statute.” Id. at 868–69.

Such critical facts are “elements,” which are the “things the

‘prosecution must prove to sustain a conviction.’” Mathis v.

United States, 136 S. Ct. 2243, 2248 (2016) (quoting Black’s

Law Dictionary 634 (10th ed. 2014)).

To resolve the question of whether statutory alternatives

are either elements or means, a court looks first to the statute

itself and then to the case law interpreting it. See id. at

2256–57; see also Almanza-Arenas v. Lynch, 815 F.3d 469,

479–82 (9th Cir. 2016) (en banc). If state law fails to answer

the question, a court may look to Shepard documents, which

may be helpful in determining divisibility. See Mathis,

136 S. Ct. at 2256–57; see also Descamps, 133 S. Ct. at 2284

(citing Shepard v. United States, 544 U.S. 13, 25–26 (2005)).

But if the statute, case law and Shepard documents fail to

speak plainly as to whether statutory alternatives are elements

instead of means, the statute is indivisible and the modified

16 SANDOVAL V. YATES

categorical approach has no application. See Mathis,

136 S. Ct. at 2257; see also In re Chairez-Castrejon, 26 I. &

N. Dec. 819, 819–20 (BIA 2016) (holding Descamps and

Mathis divisibility analysis “applies in immigration

proceedings nationwide to the same extent that it applies in

criminal sentencing proceedings”).

The government does not argue § 475.992(1)(a) is

divisible. Instead, it urges us to remand to the BIA to

determine whether § 475.992 is divisible. When an agency

does not reach an issue for which it is owed Chevron

deference, “the proper course, except in rare circumstances,

is to remand to the agency for additional investigation or

explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002)

(internal quotation marks omitted); see also Gonzales v.

Thomas, 547 U.S. 183, 186 (2006). But interpreting criminal

law is not a matter placed primarily in agency hands. See

Hoang, 641 F.3d at 1161. We owe no deference to the

decision of the BIA on this issue and there is no reason to

remand for the BIA to decide the issue of divisibility in the

first instance. See Rivera v. Lynch, 816 F.3d 1064, 1078 n.13

(9th Cir. 2016) (“The question of [a state criminal statute’s]

divisibility ‘requires neither factual development nor agency

expertise’ and is properly analyzed by this court.” (quoting

Chavez-Solis v. Lynch, 803 F.3d 1004, 1012 n.6 (9th Cir.

2015))).

Section 475.992(1)(a) does not list “solicitation” as an

alternative method of accomplishing delivery. Nor is

solicitation included in the express statutory definition of

“deliver.” See id. § 475.005(8). The inclusion of solicitation

as a means of accomplishing delivery is a judicial

interpretation of the word “attempt.” Therefore, this is a

circumstance where the divisibility analysis is

SANDOVAL V. YATES 17

“straightforward” because § 475.992(1)(a) “sets out a single

(or ‘indivisible’) set of elements to define a single crime.”

Mathis, 136 S. Ct. at 2248. Solicitation is not an enumerated

statutory alternative to delivery or attempt but is, instead,

included within the meaning of those listed alternatives. See

Sargent, 822 P.2d at 728. The statute is therefore indivisible

with respect to whether an “attempt” is accomplished by

solicitation.

The government argues we have previously held

§ 475.992(1)(a) could qualify as an aggravated felony under

the modified categorical approach, citing United States v.

Chavaria-Angel, 323 F.3d 1172, 1177–78 (9th Cir. 2003).

There, we affirmed the district court’s conclusion that the

defendant’s § 475.992 offense for delivery of a controlled

substance was an aggravated felony based on a review of

uncertified Oregon state records. See Chavaria-Angel,

323 F.3d at 1174, 1177–78. However, the decision rested on

the method rejected in Descamps, 133 S. Ct. at 2282–83,

2286–91, and applied the modified categorical approach

without performing any divisibility analysis. See Chavaria-

Angel, 323 F.3d at 1177–78. The analysis improperly

focused on what the defendant actually did as opposed to the

crime of which the defendant was convicted. Compare id.

(focusing on the evidence supporting a finding the defendant

sold controlled substances), with Descamps, 133 S. Ct. at

2287 (calling this method a “modified factual” approach,

which turns an “elements-based inquiry into an evidence-

based one”). The opinion did not consider whether a jury,

when convicting a defendant of delivery of a controlled

substance, must unanimously choose between alternative

methods of delivery, including solicitation. See Chavaria-

Angel, 323 F.3d at 1177–78. Descamps and Mathis require

these inquiries. See Mathis, 136 S. Ct. at 2256–57;

18 SANDOVAL V. YATES

Descamps, 133 S. Ct. at 2286–91. Chavaria-Angel, therefore,

is not controlling here.

To summarize, § 475.992(1)(a) is overbroad in its

definition of “delivery,” and the modified categorical

approach may not be applied because § 475.992(1)(a) is

indivisible with respect to whether an “attempt” is

accomplished by solicitation. Therefore, we hold a

conviction for delivering heroin under § 475.992(1)(a) is not

an aggravated felony. Sandoval’s petition is granted.

GRANTED AND REMANDED.