facts” of his own conviction record and a statement by Arizona’s Attorney General.

In Lorenzo—an unpublished, nonbinding decision—we determined that a California

criminal statute prohibiting optical and geometric isomers of methamphetamine was

not a categorical match for the CSA, because the CSA only prohibited optical

isomers. 752 F. App’x at 485-86. Later, in Rodriguez-Gamboa, we held that

because geometric isomers of methamphetamine do not exist, the statutes were, in

fact, categorical matches. 972 F.3d at 1151-55. Diaz Moreno takes these two

3 decisions to mean that we can “correct” legal determinations without calling for an

en banc hearing. But Diaz Moreno misses a crucial issue here: because Lorenzo

was unpublished, its holding was not binding precedent, see Ninth Cir. Rule 36-3(a)

(“Unpublished dispositions . . . are not precedent . . .”), and the Rodriguez-Gamboa

panel had nothing to “correct.”

Because this panel is bound to our decision in Romero-Millan that A.R.S. §

13-3415 is divisible, Diaz Moreno’s argument fails.

2. Diaz Moreno was convicted of an offense involving cocaine. Yet he argues

that because his record does not identify a specific drug as an element of his offense,

the DHS cannot sustain its deportability charge. The government points out that

Diaz Moreno admitted to possessing cocaine in his plea colloquy, but Diaz Moreno

claims this cannot by itself show that his offense involved a drug regulated by the

CSA.

Because A.R.S. § 13-3415 is divisible, we apply a modified categorical

approach. To determine “what crime, with what elements, a defendant was

convicted of,” we may look to the “statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit factual finding by the

trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13,

16 (2005); Mathis v. United States, 579 U.S. 500, 505–06 (2016). The question,

4 then, is whether Diaz Moreno’s colloquy alone is sufficient to show that he pleaded

guilty to a crime involving cocaine.

It is. Admissions made during a plea colloquy are enough to satisfy the

modified categorical approach. United States v. Martinez-Lopez, 864 F.3d 1034,

1043 (9th Cir. 2017) (applying the modified categorical approach and determining

that a defendant’s affirmative response to whether he sold cocaine base is sufficient

to show his conviction was for selling cocaine). Diaz Moreno answered

affirmatively when the court asked him whether he was stopped while driving with

a baggie of cocaine, whether he knew the baggie was there, and whether he knew

that it contained cocaine. Therefore, his plea colloquy makes clear that his offense

involved cocaine.

United States v. Marcia-Acosta, 780 F.3d 1244, 1250 (9th Cir. 2015), is

distinguishable. There, we held that a plea colloquy cannot narrow a state conviction

when it provides facts extraneous to the conviction. Id. at 1255. In Diaz Moreno’s

case, the drug type was not extraneous to the conviction, but rather an element of the

offense. See Romero-Millan, 46 F.4th at 1047 (“[W]e conclude that drug type is an

element of the offense under § 13-3415.”). That cocaine was not mentioned in his

charging documents, plea agreement, or judgment is inconsequential.

United States v. Sahagun-Gallegos, 782 F.3d 1094, 1100 (9th Cir. 2015), is

likewise distinguishable. There, we held that a defendant’s attorney could not

5 provide the factual basis of conviction when the record did not show that the

defendant assented to the factual basis provided by his attorney. Id. Diaz Moreno,

on the other hand, personally affirmed that 1) when he was arrested, his vehicle had

a baggie of cocaine in it, 2) he knew he had the baggie with him, and 3) he knew the

baggie contained cocaine.1 The plea colloquy is clear: Diaz Moreno admitted that

his conviction involved cocaine, an element of the offense. This admission was not

“based only on the prosecutor’s recitation of underlying conduct” as Diaz Moreno

claims, but was based on his own affirmation that his arrest involved his possession

of cocaine.

Because A.R.S. § 13-3415 is divisible by drug type, Diaz Moreno’s plea

colloquy established the drug type for which he was convicted, and that drug type is

a controlled substance under the CSA, the agency properly determined that Diaz

Moreno was convicted of a § 1227(a)(2)(B)(i) controlled substance offense.

PETITION DENIED.

1 Diaz Moreno argues that his “silence does not turn facts into elements[.]” But Diaz Moreno was not silent—he answered the judge’s questions with three verbal “yes” answers. Nor were the questions all “compound questions identifying seven different facts[.]”

6