Leonel Sandoval v. Jefferson B. Sessions

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.

JEFFERSON B. SESSIONS III, Attorney AMENDED

General, OPINION

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

Amended August 8, 2017

Before: M. Margaret McKeown, William A. Fletcher

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

2 SANDOVAL V. SESSIONS

SUMMARY*

Immigration

The panel filed an amended opinion granting 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 the

modified categorical approach does not apply because the

Oregon law is indivisible with respect to whether an

“attempt” is accomplished by solicitation.

Noting that the previously published version of this

opinion also considered whether the Oregon law was an

“illicit trafficking” aggravated felony, the panel declined to

consider that issue because the BIA had not considered it.

*

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. SESSIONS 3

COUNSEL

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

Petitioner.

Song E. Park (argued), Bryan S. Beier, and Patrick J. Glen,

Senior Litigation Counsel; Cindy S. Ferrier, Assistant

Director; Chad A. Readler, Acting Assistant Attorney

General; 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.

1

Section 475.992(1)(a) is currently codified at Oregon Revised

Statutes § 475.752.

4 SANDOVAL V. SESSIONS

I

Leonel Sandoval moved to the United States from Mexico

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

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.2

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,

2

Sandoval was recently pardoned for his conviction, but we do not

consider whether or how the pardon affects Sandoval’s ability to obtain

relief from deportation.

SANDOVAL V. SESSIONS 5

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).

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 the categorical 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).

6 SANDOVAL V. SESSIONS

The term “aggravated felony” includes any “drug

trafficking crime.”3 8 U.S.C. § 1101(a)(43)(B). Only

felonies qualify as “drug trafficking crime[s].” See Lopez v.

Gonzales, 549 U.S. 47, 55, 60 (2006); see also Carachuri-

Rosendo, 560 U.S. at 581–82. 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 proscribes conduct

punishable as a felony under that federal law.”).4

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,

3

The previously published version of this opinion also considered

whether § 475.992(1)(a) was an “illicit trafficking” offense under 8 U.S.C.

§ 1101(a)(43)(B), which is also an aggravated felony. See Sandoval v.

Yates, 847 F.3d 697, 699, 701 (9th Cir. 2017). Because the BIA did not

consider this issue, we decline to do so here.

4

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. SESSIONS 7

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

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 the meaning of “attempt” under the

Controlled Substances Act includes solicitation. The

Controlled Substances Act does not define the term

“attempt.” See 21 U.S.C. §§ 802, 846. Nevertheless, mere

solicitation of controlled substances does not constitute

“attempted” delivery under the Controlled Substances Act.

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).

Although strongly corroborative of intent to commit a crime,

offering to deliver a controlled substance does not cross the

line between preparation and attempt for the purposes of the

Controlled Substances Act. See Rivera-Sanchez, 247 F.3d at

8 SANDOVAL V. SESSIONS

908–09; see also 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, to qualify as an aggravated felony, a drug

trafficking crime for delivery of heroin must satisfy the

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

attempted delivery, conspiracy to deliver or possession with

intent to deliver (3) heroin. This 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 this 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).

SANDOVAL V. SESSIONS 9

Under Oregon law, solicitation – even without possession

– is a “substantial step toward committing the crime of

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. In Self, the

defendant was convicted under Oregon’s generic solicitation

statute, Oregon Revised Statutes § 161.435. See 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.

10 SANDOVAL V. SESSIONS

Id. Self was convicted of “solicitation of attempted delivery

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

See id.

That the appellate court in Sargent said the facts of Self

were “illustrative” is telling. See Sargent, 822 F.2d at 728.

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), aff’d on other grounds, 102 P.3d 684 (Or. 2004)

the court reversed a pretrial order suppressing evidence

against a defendant charged under § 475.992 for delivery of

a controlled substance. In Pollock, 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.

SANDOVAL V. SESSIONS 11

As the court explained in State v. Walters,

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

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 deliver a controlled substance

is enough to complete a substantial step toward an intended

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

attempt under Oregon law. See id. But the mere offer to

12 SANDOVAL V. SESSIONS

deliver a controlled substance – i.e., the act of soliciting

delivery – is not a drug trafficking crime under the Controlled

Substances Act. See Rivera-Sanchez, 247 F.3d at 908–09.

Accordingly, a statute that punishes the mere offer to deliver

a controlled substance is not an aggravated felony under the

categorical approach. See id. at 909.

The government contends a conviction under

§ 475.992(1)(a) requires more than simply offering to deliver

a controlled substance. 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 Johnson

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. SESSIONS 13

See id. at 306.5 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

5

We do not consider whether solicitation to commit murder is an

aggravated felony.

14 SANDOVAL V. SESSIONS

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.”).6 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 under the

Controlled Substances Act. 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.” Therefore, Sandoval’s conviction

6

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. SESSIONS 15

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

categorical approach has no application. See Mathis,

16 SANDOVAL V. SESSIONS

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

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

SANDOVAL V. SESSIONS 17

(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). In

that case, 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 id. 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; Descamps, 133 S. Ct. at

2286–91. Chavaria-Angel, therefore, is not controlling here.

18 SANDOVAL V. SESSIONS

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.