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Hillocks v. Attorney General United States of America

United States Court of Appeals, Third Circuit

August 12, 2019


          Argued: January 10, 2019

          On Petition for Review of a Decision of the Board of Immigration Appeals (A047-365-390) Immigration Judge: Walter Durling

          James C. Martin Reed Smith Natalie R. Salazar M. Patrick Yingling [ARGUED] Reed Smith Counsel for Petitioner Dexter Anthony Hillocks.

          Benjamin Zeitlin Gregory A. Pennington, Jr. [ARGUED] United States Department of Justice Counsel for Respondent Attorney General United States of America.

          Before: AMBRO, BIBAS, and FUENTES, Circuit Judges



         Petitioner Dexter Anthony Hillocks is a lawful permanent resident who was convicted of the Pennsylvania state crime of using a communication facility-i.e., a phone- to facilitate a felony. The question before us is whether that crime constitutes either an "aggravated felony" or a "conviction relating to a controlled substance" under federal immigration laws. Either would make him removable.

         Typically, when deciding whether a particular state crime falls into those categories, the immigration courts look to see if the statute matches the federal definition of a qualifying crime. This is known as the "categorical approach."[1]

         In some instances, however, a particular statute is divisible into multiple alternate elements-i.e., facts that a jury must find beyond a reasonable doubt. In that situation, we instead apply the "modified categorical approach." The major difference is that, with the modified approach, courts can look at the records of conviction to see which of the alternatives applied in a particular case; under the broader categorical approach, courts do not look at any court documents at all, and instead "presume that the state conviction rested upon the least of the acts criminalized by the statute."[2]

         The Board of Immigration Appeals concluded that the modified categorical approach applied to Hillocks's conviction here. Applying that approach, the Board looked to Hillocks's plea colloquy and found that Hillocks used a phone to facilitate the sale of heroin. The Board found that his conviction was therefore both an aggravated felony and related to a controlled substance, and accordingly ordered Hillocks removed.

         On appeal, Hillocks argues that the Board misapplied the approach. He asserts that the various felonies that a person could facilitate with a phone are "means" by which the crime could be committed, not alternative elements, and that, under this analysis, his conviction does not make him removable.

         As we explain, we agree that the Board incorrectly applied the modified categorical approach. We will vacate the order of removal and remand for further proceedings.


         Dexter Anthony Hillocks is a native of Trinidad and Tobago. He was admitted into the United States as a lawful permanent resident in 2000. His immediate family lives in the U.S. as American citizens, and he also has a U.S.-born girlfriend living in Pennsylvania.

         In 2015, Hillocks pleaded nolo contendere to one violation of 18 Pa. C.S. § 7512(a), "criminal use of [a] communication facility." Section 7512(a) provides that:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under [35 P.S. § 780-101 et seq.], known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.

         After serving a prison sentence, Hillocks was released into the custody of Immigration and Customs Enforcement, which placed him in detention. He was charged with removability based on his conviction.

         Hillocks, representing himself pro se through most of his administrative proceedings, first appeared before an immigration judge in October 2015. His case proceeded along a circuitous path through the administrative system. As relevant here, an immigration judge found that Hillocks's conviction made him removable under both 8 U.S.C. § 1227(a)(2)(A)(iii), as an aggravated felony, and 8 U.S.C. § 1227(a)(2)(B)(i), as a crime relating to a controlled substance. The Board upheld the immigration judge's decision on appeal. When considering whether Hillocks's conviction was an aggravated felony, the Board applied what is known in our Circuit as the "hypothetical federal felony test," through which the Board compares a state drug-related offense to the federal Controlled Substances Act to see if the state crime is analogous to a federal offense.[3]

         The first step of this analysis is to apply the aforementioned categorical approach. Here, because § 7512(a) criminalizes the use of a phone to commit another felony, the Board concluded that it had multiple alternative elements, and that each "specific underlying felony is an element of the offense."[4] Because it found § 7512(a) divisible, the Board applied the modified categorical approach to this crime.

         After reviewing Hillocks's plea colloquy, the Board concluded that his conviction related to the sale of heroin. It further found that this made Hillocks's conviction under § 7512(a) a categorical match with a corresponding federal crime, namely 21 U.S.C. § 843(b).[5] Section 843(b) makes it a felony to "knowingly or intentionally [] use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under [the Controlled Substances Act]." The Board held that Hillocks's conviction was an aggravated felony as defined under 8 U.S.C. § 1101(a)(43)(B), which makes it an aggravated felony to "illicit[ly] traffic[] in a controlled substance . . . including a drug trafficking crime," and also held that his conviction "related to a controlled substance."[6] It therefore upheld Hillocks's order of removal. Hillocks appealed to our Court.[7]


         We review Board decisions on legal questions de novo.[8]We do not give Chevron deference[9] to the Board's legal determinations as to whether a particular criminal statute is an aggravated felony or related to a controlled substance.[10]

         Our immigration laws make individuals removable "based on the nature of their convictions, not based on their actual conduct."[11] When applying the hypothetical federal felony test, as the Board did, we first "'employ a categorical approach by looking to the statute of conviction, rather than to the specific facts underlying the crime.'"[12] This approach asks whether the crime "categorically fits within the 'generic' federal definition of a corresponding aggravated felony."[13]

         Critically, the categorical approach does not call for the consideration of the facts of a particular case. We "presume that the state conviction 'rested upon the least of the acts' criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime."[14]"[C]ourts ask what elements of a given crime always require- in effect, what is legally necessary for a conviction."[15] This approach has a history in the immigration codes dating back to 1913, [16] and "ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law."[17]

         Courts "modify" this approach where a crime has multiple alternative elements-facts that a prosecutor must prove, and a jury must find, beyond a reasonable doubt.[18] The modified approach allows adjudicators to look into a limited set of documents to see which of the alternatives served as the basis for the individual's conviction.[19] Elements are distinct from means, which are simply different ways an individual can commit an underlying crime, and which do not need to be proven beyond a reasonable doubt at trial. The modified approach "helps implement the categorical approach" when a defendant was convicted of violating a divisible statute.[20] It works "not as an exception, but instead as a tool [that] retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime."[21] "Off limits to the adjudicator . . . is any inquiry into the particular facts of the case."[22]

         The modified approach only applies when (1) the statute of conviction has alternative elements, and (2) "at least one" of the alternative divisible categories would, by its elements, be a match with a generic federal crime.[23]

         So courts must determine whether the statute's "listed items are [alternative] elements" that need to be found unanimously beyond a reasonable doubt, or are alternative means upon which a jury need not agree to sustain a conviction.[24] For example, in Mathis v. United States, the Supreme Court held that a burglary statute involving unlawful entry into "any building, structure, or land, water, or air vehicle" simply listed alternate means, not elements that created separate crimes.[25]

         Even if a statute is divisible, the modified categorical approach is only appropriately applied where at least one of the divisions matches a qualifying federal crime.[26] If all the divided categories are still broader than a generic federal crime, then the modified categorical approach simply creates a nesting doll that replicates the original problem instead of resolving it.[27] With this framework in mind, we turn to the particulars of Hillocks's appeal, beginning with the Board's conclusion that his conviction constitutes an aggravated felony.

         A. Aggravated Felony

         Under the non-modified categorical approach, an undivided § 7512(a) plainly does not constitute an aggravated felony. Pennsylvania's § 7512(a) requires that a defendant (1) use a phone[28] (2) to facilitate a felony under either (a) Pennsylvania's criminal code[29] or (b) its Controlled Substance, Drug, Device and Cosmetic Act (the "Pennsylvania Controlled Substance & Drug Act").[30] As Hillocks points out, this encompasses crimes such as "possessing a trade secret with the intent to wrongfully deprive the owner of control of it."[31] A felony, to be sure, but not an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). A person could violate § 7512(a) by facilitating a non-aggravated felony, and using a phone to facilitate a non-aggravated felony is not itself an aggravated felony. Therefore, under the "least of the acts" necessary to sustain a conviction under § 7512(a), a conviction under it would not constitute an aggravated felony under the categorical approach.

         The Board, however, found that § 7512(a) was a crime with alternative elements, requiring the modified categorical approach. In its decision, the Board found that § 7512(a) was divisible into categories consisting of each possible underlying felony. To determine into which of the purported categories Hillocks's conviction fit, the Board reviewed Hillocks's plea colloquy, and determined that he used a communications facility to facilitate the sale of heroin. Our precedent, however, suggests there are problems with the Board's use of the modified categorical approach here.

         To begin that analysis, we first consider the possible elemental categories into which § 7512(a) might divide. If § 7512(a) is divisible at all, the most obvious candidates are the two alternative categories listed by name in the statute: (a) Pennsylvania's general criminal code[32] or (b) the Pennsylvania Controlled Substance & Drug Act.[33] For reasons already discussed, facilitating any felony found in Pennsylvania's general criminal code cannot serve as the basis for an aggravated felony determination because not all felonies in that title would rise to the level of aggravated felonies.

         The second alternative category, facilitating a felony found in Pennsylvania's Controlled Substance & Drug Act, is also not a categorical match with a federal aggravated felony. The Pennsylvania Controlled Substance & Drug Act makes it a crime to distribute not only controlled substances, but also non-controlled substances. For example, the Pennsylvania Controlled Substance & Drug Act also makes it a crime to distribute "designer drugs," which are statutorily defined as a substance "other than a controlled substance" that produces an effect substantively similar to controlled substances.[34] Thus, a conviction under the Pennsylvania Controlled Substance & Drug Act-by definition-does not necessarily involve a "controlled substance." That means it cannot be a match with the federal aggravated felony indicated by the Board, which concerns only controlled substances. Because neither of these categories, by the least of their acts, match with a corresponding federal felony, they cannot justify resort to the modified categorical approach.[35]

         The categories would still be overbroad even if the Board had gone one step further and subdivided that latter category into (1) controlled substances under the Pennsylvania Controlled Substance & Drug Act, and (2) non-controlled substances under the Act. This is because Pennsylvania controlled substance list incorporates several drugs that are not on the federal list.[36] The Government concedes that "Pennsylvania lists more substances on its schedules than the federal."[37] That means that an individual could be convicted under the Pennsylvania act for a substance that would not be a controlled substance under federal law-making Pennsylvania's act broader. We have previously found that an analogous statute with the same problem did not constitute a categorical match with a federal crime, and hence was not an aggravated felony.[38]

         In that case, Borrome v. Attorney General, this Court faced the question whether a conviction under the federal Food, Drug and Cosmetic Act's wholesale prescription drug distribution statutes necessarily involved a "controlled substance" such that it matched with the federal Controlled Substance Act. Finding "daylight" between the two acts' lists, we held that "some prescription drugs do contain controlled substances, [but the Act] make[s] no distinction between convictions involving prescription drugs that do contain controlled substances and those that do not."[39] Because the convicting court "did not necessarily have to find whether the prescription[] drugs involved also contained controlled substances," we found that a conviction there was not a match for the Controlled Substance Act, and therefore could not constitute an aggravated felony.[40] The same reasoning applies here: because the Pennsylvania controlled substances statute criminalizes drugs not on the federal schedules, a conviction under Pennsylvania's statute would not necessarily constitute a categorical match.[41] This set of divisions, then, does not support use of the modified categorical approach.

         The Government concedes those possible categories fail and does not argue them before us. It relies on a different theory, however. It asserts that the appropriate categories are not the two statutory codes listed by name in § 7512(a), or some variation thereof, but every felony under either of them, individually. Under the Government's theory, every individual felony constitutes a separate, alternate element within § 7512(a).

         The Government's reasoning is thus: In order to prove a crime at trial, the prosecution must prove every element beyond a reasonable doubt. The elements of § 7512(a) are: (1) the defendant knowingly and intentionally used a communication facility; (2) the defendant knowingly, intentionally, or recklessly facilitated an underlying felony; and (3) "the underlying felony occurred."[42] The only way to prove that the underlying felony occurred beyond a reasonable doubt is to prove that the individual elements of that felony occurred beyond a reasonable doubt. Because the elements of each individual felony must be proven beyond a reasonable doubt, and because each individual felony is different, that means that each felony must constitute a separate, distinguishable element under § 7512(a). Thus, says the Government, each individual felony constitutes a separate alternate element to which the modified categorical approach applies.

         In support, the Government points to 21 U.S.C. § 843(b), a federal statute with some similarities to Pennsylvania's § 7512(a).[43] We held in United States v. Johnstone that § 843(b) requires the government to prove "(1) knowing or intentional (2) use of a communication facility (3) to commit, cause or facilitate the commission of a drug felony."[44] Johnstone found fault with a jury instruction that the final element need be met only by a preponderance of the evidence, and we held that the final element needed to be proven beyond a reasonable doubt.[45] Pennsylvania courts have cited that decision in their own analysis of § 7512(a), finding the comparison to § 843(b) helpful. Citing Johnstone and § 843(b), the Pennsylvania Superior Court held in Commonwealth v. Moss that the elements of § 7512(a) are "(1) [defendant] knowingly and intentionally used a communication facility; (2) [defendant] knowingly, intentionally or recklessly facilitated an underlying felony; and (3) the underlying felony occurred."[46]

         There are several problems with the Government's reliance on Johnstone and Moss, however. First is the fact that neither Moss nor Johnstone were categorical-approach cases, and so did not take up the question of whether either § 843(b) or § 7512(a) were divisible. The only decision cited by the parties that did consider § 843(b) in the context of the categorical approach, United States v. Maldonado, concluded that § 843(b) was indivisible-making the modified categorical approach inappropriate. [47] Further, Johnstone and Moss only stand for the proposition that a prosecutor must show beyond a reasonable doubt that any felony a defendant facilitated actually occurred. These holdings do not prohibit a prosecutor-for either § 843(b) or § 7512(a)-from offering up multiple facilitated felony options to a jury, nor for jury members to disagree on which felony the defendant actually facilitated. If one ...

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