Srecko Pesikan v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 20-3307 and 21-1262
_____________
SRECKO PESIKAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA 1:A075-161-152)
Immigration Judge: Kuyomars Q. Golparvar
_______________
Argued on June 27, 2023
Before: JORDAN, KRAUSE, and MONTGOMERY-
REEVES, Circuit Judges
(Filed: September 26, 2023)
_______________

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Stephen A. Fogdall [ARGUED]
Dilworth Paxson
1500 Market Street
Suite 3500E
Philadelphia, PA 19102
Arleigh P. Helfer, III
Helfer Law
410 Campbell Avenue
Havertown, PA 19083
Bruce P. Merenstein
Welsh & Recker
306 Walnut Street
Philadelphia, PA 19106
Counsel for Petitioner
Alexander J. Lutz [ARGUED]
Craig A. Newwell, Jr.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________

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JORDAN, Circuit Judge.
Petitioner Srecko Pesikan argues that the Board of
Immigration Appeals (“BIA”) erred in concluding that his
2018 Pennsylvania conviction for driving under the influence
(“DUI”) of marijuana constituted an offense involving a
“controlled substance,” as defined in the federal Controlled
Substances Act (“CSA”), thereby rendering him removable
under the Immigration and Nationality Act of 1952, 8 U.S.C.
§ 1227(a) (“INA”). We agree and will grant his petition for
review.
I. BACKGROUND 1
Pesikan is a citizen of Bosnia and Herzegovina
(“Bosnia”). In 1992, when he was six years old, he, along with
his mother and sister, fled Bosnia when war broke out there.
In 1998, they entered the United States as refugees and gained
lawful permanent resident (“LPR”) status.
In June 2017, Pesikan caused a car accident while under
the influence of drugs and alcohol. Eyewitnesses reported that
he was swerving side-to-side across multiple lanes until he
crashed into a center divider on a highway, at which point he
1 This appeal comprises two consolidated Petitions for
Review, case numbers 20-3307 and 21-1262, but Pesikan has
elected “not [to] pursue [the 20-3307] appeal here.” (Opening
Br. at 2-3 n.1.) Accordingly, Pesikan has waived his
arguments in case number 20-3307.

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and his female passenger left the scene.2 A responding police
officer found a half-consumed bottle of whiskey on the driver’s
seat and marijuana in the driver’s door pocket. A blood test of
Pesikan revealed the presence of cocaine, marijuana,
alprazolam, and a blood alcohol content of .054.
In 2018, Pesikan was convicted in the Court of
Common Pleas of six counts of driving under the influence in
violation of 75 Pa. Cons. Stat. § 3802.3 At the time of
2 Pesikan testified at his removal hearing that the crash
was caused by his car’s axle breaking. He also testified that,
contrary to the police report, he did not flee the scene, but had
instead walked about one hundred feet away from his car to
“avoid getting hit by the car[s] driving by.” (A.R. at 174.)
3 Count 1 was for “imbibing a sufficient amount of
alcohol such that the actor was rendered incapable of driving
safely” in violation of 75 Pa. Cons. Stat. § 3802(a)(1); Count 2
was for driving under the influence of a “Schedule I controlled
substance, Namely: Marijuana” in violation of § 3802(d)(1)(i);
Count 3 was for driving under the influence of a “Schedule II
or Schedule III controlled substance, namely, cocaine” in
violation of § 3802(d)(1)(ii); Count 4 was for driving while
under the influence of “a Metabolite of a [Schedule I, Schedule
II, or Schedule III controlled] substance, namely,
benzoylecgonine and/or marijuana” in violation of
§ 3802(d)(1)(iii); Count 5 was for driving “while under the
influence of a drug or combination of drugs, namely,
alprazolam (schedule IV), to a degree which impaired the
actor’s ability to drive safely” in violation of § 3802(d)(2); and
Count 6 was for driving “while under the combined influence
of alcohol and a drug or combination of drugs to a degree

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Pesikan’s conviction, Pennsylvania’s DUI statute read, in
relevant part:
(d) Controlled Substances. – An individual may
not drive, operate or be in actual physical control
of the movement of a vehicle under any of the
following circumstances:
(1) There is in the individual’s blood any amount
of a:
(i) Schedule I controlled substance, as
defined in … [Pennsylvania’s controlled
substance schedules];
(ii) Schedule II or Schedule III controlled
substance, as defined in [Pennsylvania’s
controlled substance schedules], which
has not been medically prescribed for the
individual; or
(iii) metabolite of a substance under
subparagraph (i) or (ii).
(2) The individual is under the influence of a
drug or combination of drugs to a degree which
impairs the individual’s ability to safely drive,
operate or be in actual physical control of the
movement of the vehicle.
which impaired the actor’s ability to drive safely” in violation
of § 3802(d)(3). (A.R at 838, 840.)

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(3) The individual is under the combined
influence of alcohol and a drug or combination
of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be
in actual physical control of the movement of the
vehicle.
75 Pa. Cons. Stat. § 3802(d).
The trial court merged all of the DUI counts into Count
2 – for driving while under the influence of marijuana in
violation of § 3802(d)(1)(i) – and sentenced Pesikan to 60 days
to six months’ imprisonment, a $1,000 fine, participation in an
alcohol highway safety school, and, depending on a future
evaluation, participation in additional alcohol-related
treatment.4
4 The Superior Court of Pennsylvania has “held that a
defendant should not be subjected to separate sentences for
multiple convictions arising under Section 3802(d)(1)”
because “Section 3802(d)(1) proscribes a single harm to the
Commonwealth[.]” Commonwealth v. Westlake, 295 A.3d
1281, 1289 (Pa. Super. Ct. 2023) (quoting Commonwealth v.
Given, 244 A.3d 508, 512 (Pa. Super. Ct. 2020)). Accordingly,
trial courts are to merge a defendant’s “DUI convictions [under
Section 3802(d)(1)] for purposes of sentencing.” Id. The trial
court here merged not only the § 3802(d)(1) counts, Counts 2-
4, but also Pesikan’s violations of § 3802(a)(1), § 3802(d)(2),
and § 3802(d)(3) – Counts 1, 5, and 6, respectively. In
addressing an earlier version of Pennsylvania’s DUI statute,
the Supreme Court of Pennsylvania suggested that all DUI
violations should merge when it explained that “the driving

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In November 2019, the Department of Homeland
Security (“DHS”) charged Pesikan with removability as an
alien convicted of violating a law relating to a controlled
substance under 8 U.S.C. § 1227(a)(2)(B)(i), which asks
whether a noncitizen “has been convicted of a violation of …
any law … relating to a [federally] controlled substance.”
Pesikan moved to terminate his charge of removability.5
He admitted that, pursuant to Pennsylvania law, he had been
convicted of driving under the influence, but he argued that,
with application of the categorical approach to comparing state
and federal crimes, his conviction could not be considered an
offense “relating to a controlled substance” under § 102 of the
CSA. In particular, he asserted that Pennsylvania’s DUI statute
under the influence statute proscribes a single harm to the
Commonwealth-the operation of a vehicle under the influence
to a degree that renders an individual incapable of safe
driving.” Commonwealth v. McCurdy, 735 A.2d 681, 685-86
(Pa. 1999). Finally, we note that, although not at issue here,
Pesikan was also convicted of possession for personal use of
marijuana in violation of 35 Pa. Cons. Stat. § 780-113, and he
was sentenced to 15 days’ probation on that count.
5 Pesikan also filed an application for asylum,
withholding of removal, and, pursuant to the Convention
Against Torture, deferral of removal. The Immigration Judge
and BIA denied those claims. This opinion does not address
the rulings as to those claims because we will grant Pesikan’s
Petition for Review based on his underlying motion to
terminate his charge of removability.

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is broader than the CSA because the former allows for
convictions based on the use of substances that are not
federally controlled.
The Immigration Judge (“IJ”), after deciding that the
Pennsylvania DUI statute is divisible, applied the modified
categorical approach, determined that the pertinent DUI
provision categorically matches 8 U.S.C. § 1227(a)(2)(B)(i),
and denied Pesikan’s motion to terminate.6 Pesikan timely
appealed the IJ’s decision to the BIA, and the BIA affirmed the
IJ’s ruling – for the same reasons articulated by the IJ – and
dismissed Pesikan’s appeal. Pesikan then timely petitioned us
for review of the BIA’s decision.
II. DISCUSSION7
The parties agree that Pesikan’s state DUI conviction
must be analyzed under some version of the categorical
approach to determine whether it constitutes an offense
relating to a “controlled substance” under the CSA, thereby
triggering his removability under the INA. See Mellouli v.
Lynch, 575 U.S. 798, 804 (2015) (“[I]n determining … whether
6 The IJ sustained the charge of removability based on
the 75 Pa. Cons. Stat. § 3802(d)(1)(i) marijuana DUI
conviction.
7 We have jurisdiction over this petition for review
under 8 U.S.C. § 1252. We review the BIA’s legal conclusions
de novo. Hillocks v. Att’y Gen., 934 F.3d 332, 337-38 (3d Cir.
2019). We “consider the opinion of the IJ only insofar as the
BIA deferred to it.” Singh v. Att’y Gen., 839 F.3d 273, 282 (3d
Cir. 2016) (quotation omitted).

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a state conviction renders an alien removable under the
immigration statute[,]” courts apply “the categorical
approach.”).
“Because Congress predicated deportation on
convictions, not conduct, the [categorical] approach looks to
the statutory definition of the offense of conviction, not to the
particulars of an alien’s behavior.” Id. at 805 (quotation
omitted). Accordingly, courts may not examine the facts
underlying the crime. Id. at 805-06 (quotation omitted).
Instead, “the adjudicator must presume that the conviction
rested upon nothing more than the least of the acts criminalized
under the same statute.” Id. at 805. The state conviction will
then trigger removal only if it is a categorical match for the
federal offense, i.e., contains all the elements of a removable
offense “defined by federal law.” Id.
When, however, a statute of conviction is divisible –
that is, it embodies definitions of more than one crime and is
thus susceptible to being analytically divided into those
separate definitions – a court may apply the “modified
categorical approach,” which allows examination of certain
documents in the record of conviction to determine which of
the different crimes in the statute the alien was convicted of
committing. Descamps v. United States, 570 U.S. 254, 257
(2013). Those documents include “the charging document and
jury instructions, or in the case of a guilty plea, the plea
agreement, plea colloquy, or some comparable judicial record
of the factual basis of the plea.” Moncrieffe v. Holder, 569 U.S.
184, 191 (2013) (quotation omitted). Again, a statute is
divisible if it defines “multiple crimes” by “list[ing] elements
in the alternative,” whether in the disjunctive or in separate
subsections. Mathis v. United States, 579 U.S. 500, 505

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(2016); see also Descamps, 570 U.S. at 257 (explaining that a
divisible “statute sets out one or more elements of the offense
in the alternative – for example, stating that burglary involves
entry into a building or an automobile”).
As the foregoing indicates, it is important to determine
whether a statute merely sets forth multiple means of
accomplishing a single offense and is thus indivisible, or
instead sets forth different crimes, with their different
elements, and so is divisible. In answering the “means-or-
elements” question, we will defer to an “authoritative source
of state law,” such as a holding from the state’s highest court,
and will consider a decision from a lower court of the state as
a significant “datum for ascertaining state law which is not to
be disregarded by a federal court unless it is convinced by other
persuasive data that the highest court of the state would decide
otherwise.” Singh v. Att’y Gen., 839 F.3d 273, 283 & n. 5 (3d
Cir. 2016) (quotation omitted).
The parties agree that the substances listed on Schedule
I of Pennsylvania’s Controlled Substance, Drug, Device and
Cosmetic Act include substances beyond those listed in the
federal CSA. See Hillocks v. Att’y Gen., 934 F.3d 332, 340 (3d
Cir. 2019) (“[The] Pennsylvania controlled substance list
incorporates several drugs that are not on the federal list.”); see
also (Answering Br. at 23 (“There is no dispute that
§ 3802(d)(1)(i) overbroadly incorporates some Pennsylvania
Schedule I substances that are not federally controlled[.]”)). In
other words, a conviction under Pennsylvania’s DUI statute is
not a categorical match for the federal offenses set out in the
CSA. Pesikan therefore cannot be removed under the INA as
someone who has committed a federal controlled substance
offense unless the Pennsylvania DUI statute is divisible and,

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consequently, the strictures of the categorical approach give
way to the broader review allowed by the modified categorical
approach, in which case some inquiry into the underlying facts
of Pesikan’s DUI conviction is permitted.8
We conclude that the pertinent Pennsylvania statute, 75
Pa. Cons. Stat. § 3802(d)(1)(i), is best read as being indivisible.
Instead of “list[ing] multiple elements disjunctively,” as is the
hallmark of a divisible statutory provision, § 3802(d)(1)(i)
incorporates an “itemize[d]” list of “diverse means” by which
an individual might violate the law by having a Schedule I
controlled substance in his blood. See Mathis, 579 U.S. at 506.
This is evident from the fact that a jury could have convicted
Pesikan under § 3802(d)(1)(i) even if the jurors disagreed
about which particular controlled substance was in his blood.
If, for example, some jurors had determined that Pesikan was
under the influence of only cocaine while others concluded that
he was under the influence of only marijuana, he would still
have committed the crime set forth in § 3802(d)(1)(i), “so long
as all agreed that the defendant” was under the influence of any
Schedule I controlled substance.9 Id.
8 The government acknowledges that, “[u]nder the
default categorical approach, the presence in Pennsylvania’s
Schedule I of some substances that are not federally controlled
would render § 3802(d)(1)(i) overbroad with respect to 8
U.S.C. § 1227(a)(2)(B)(i), meaning that no conviction under
that statute could support that charge of removability.”
(Answering Br. at 28.)
9 The Supreme Court described a similarly indivisible
statute in the following hypothetical:

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Our reading of § 3802(d)(1)(i) is consistent with
caselaw from the Superior Court of Pennsylvania, which
teaches that convictions arising under § 3802(d)(1) should be
merged at sentencing. In Commonwealth v. Given, the
Superior Court held that the merger of sentences under
§ 3802(d)(1) is proper because that provision “proscribes a
single harm to the Commonwealth – DUI-Controlled
Substance.” 244 A.3d 508, 512 (Pa. Super. Ct. 2020). The
court reasoned that “Subsections 3802(d)(1)(i) and (iii) provide
alternate means by which the Commonwealth can establish the
offense, but do not provide proof of different offenses.” Id.;
see also Commonwealth v. Westlake, 295 A.3d 1281, 1289 (Pa.
Super. Ct. 2023) (DUI convictions for “both cocaine and
Benzoylecgonine, the metabolite of cocaine[,]” should merge
at sentencing); Commonwealth v. Powell, 2013 WL 11256850
[S]uppose a statute requires use of a “deadly
weapon” as an element of a crime and further
provides that the use of a “knife, gun, bat, or
similar weapon” would all qualify. Because that
kind of list merely specifies diverse means of
satisfying a single element of a single crime – or
otherwise said, spells out various factual ways of
committing some component of the offense – a
jury need not find (or a defendant admit) any
particular item: A jury could convict even if
some jurors concluded that the defendant used a
knife while others concluded he used a gun, so
long as all agreed that the defendant used a
deadly weapon.
Mathis, 579 U.S. at 506 (citations omitted).

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at *4 (Pa. Super. Ct. July 24, 2013) (DUI convictions for
multiple drugs should merge at sentencing).
Because Pennsylvania state convictions merge only if
“the statutory elements of one offense are included in the
statutory elements of the other offense,” Commonwealth v.
Kemp, 2017 WL 657764 at *7 (Pa. Super. Ct. Feb. 17, 2017)
(citing 42 Pa. Cons Stat. § 9765), it follows that any two
violations of § 3802(d)(1), including § 3802(d)(1)(i), result
from the defendant having twice satisfied the same elements of
the crime, albeit, perhaps, by diverse means.
In light of Pennsylvania caselaw and our own statutory
interpretation of § 3802(d)(1)(i), the reasoning articulated by
the BIA for upholding Pesikan’s removability, and the
government’s additional arguments on appeal, are unavailing.
The BIA concluded that the statute was divisible “as to the
identity of the controlled substance involved” based on two
considerations. (App. at 6-7.) It first looked to the
Pennsylvania Suggested Standard Jury Instructions for DUI
offenses, which ask the Commonwealth to identify the
controlled substance at issue.10 In pertinent part, the suggested
instruction provides:
To find the defendant guilty of driving under the
influence of controlled substances, you must be
satisfied that the following two elements have
been proven beyond a reasonable doubt:
10 The government echoes the BIA’s contention
regarding jury instructions: “Pennsylvania model jury
instructions require that the specific substance be identified[.]”
(Answering Br. at 21.)

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First, that the defendant drove, operated, or was
in actual physical control of the movement of a
vehicle upon a highway or trafficway.
Second, that at the time the defendant drove,
operated, or was in actual physical control of the
vehicle, the defendant’s blood contained any
amount of [a Schedule I, II, or III controlled
substance.] I hereby instruct you that [name of
drug] is a [Schedule I, II, or III controlled
substance.]
Pennsylvania Suggested Standard Criminal Jury Instructions
17.3802(d)(1) (2016). Based on that instruction, the BIA
determined that “the State must prove the substance involved
in the offense to obtain a conviction for driving under the
influence of [sic] controlled substance … such that it is an
element of the offense[.]” (A.R. at 5.)
The BIA’s reliance on that suggested jury instruction is
misplaced. For one thing, the Pennsylvania Supreme Court has
held, at least in the civil context, that the form instructions are
not binding law. Cowher v. Kodali, 283 A.3d 794, 808 (Pa.
2022) (“Defendants’ reliance on Pennsylvania’s Suggested
Standard Civil Jury Instructions is misplaced. The suggested
instructions are not binding. Rather, as their title suggests, the
instructions are guides only.”) (cleaned up). There is no reason
to believe that the instructions are any more binding in the
criminal context than they are in the civil.11 And, of course,
11 The government cited our opinion in Larios v.
Attorney General, 978 F.3d 62, 68-69 (3d Cir. 2020), for the

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the focus at step one of the divisibility analysis is on the text of
the statute itself. See Mathis, 579 U.S. at 505 (“[The Supreme]
Court [has] approved the ‘modified categorical approach’ for
use with statutes having multiple alternative elements.”)
(emphasis added); id. at 505-06 (explaining that a court, after
finding that a statute is divisible, may look “to a limited class
of documents (for example, the indictment, jury instructions,
or plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of”).
In further support of its ruling, the BIA cited our
decision in Singh v. Attorney General, which held that a
Pennsylvania statute criminalizing possession of a controlled
substance with intent to manufacture or deliver, 35 Pa. Cons.
Stat. § 780-113(a)(30), was divisible by the identity of the
substance. 839 F.3d at 284. While the BIA acknowledged that
our opinion in Singh addressed “another Pennsylvania
controlled substance offense[,]” (App. at 5), the government
broadly construes Singh as establishing that “incorporation of
Pennsylvania’s controlled substance schedules creates
multiple separate offenses rather than inconsequentially
illustrating various means of committing a single, unified
offense[.]” (Answering Br. at 29.)
proposition that “[m]odel jury instructions and charges, too,
can illuminate which terms in a statute are elements that must
be charged by a prosecutor and either found by a jury or
admitted in a plea.” (Answering Br. at 27.) But we explicitly
stated that we were basing our decision in that case on an
“authoritative source in a New Jersey Superior Court
decision.” Larios, 978 F.3d at 68.

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That is plainly wrong. We held in Singh that a particular
statute, 35 Pa. Con Stat. § 780-113(a)(30), was divisible
because the Pennsylvania Superior Court had previously so
held and because, under that statute, the penalty fluctuates
depending on the identity of the controlled substance at issue.
Singh, 839 F.3d at 283-84. We did not hold that all
Pennsylvania statutes incorporating Pennsylvania’s controlled
substance schedules are divisible. Moreover, neither of the two
bases for our decision in Singh are present here: the parties
have not identified a Pennsylvania state court decision
conducting a divisibility analysis of the DUI statute,12 and the
DUI statute’s penalty does not vary depending on the identity
of the controlled substance at issue.
The government, in addition to echoing the BIA’s
rationales, makes two additional arguments. First, it points to
the Pennsylvania Superior Court’s opinion in Commonwealth
v. Swavely, 554 A.2d 946 (Pa. Super. Ct. 1989) – the case on
which we relied to reach our holding in Singh – as an
authoritative source of state law “indicat[ing] that each
Schedule I controlled substance incorporated into [the DUI
statute] creates a separate crime such that the statute is divisible
by the identity of the specific substance charged.” (Answering
Br. at 28-29.) Specifically, the government asserts that
Swavely’s holding that 35 Pa. Cons. Stat. § 780-113(a)(30)
contains alternative elements, “i.e.[,] the particular controlled
12 Indeed, as already noted, Superior Court case law
indicates that the statute is indivisible, given the application of
the merger-of-sentences doctrine in cases involving 75 Pa.
Cons. Stat. § 3802(d)(1). See, e.g.,. Westlake, 295 A.3d at
1289; Given, 244 A.3d at 512; Powell, 2013 WL 11256850 at
*4 (Pa. Super. Ct. 2013).

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substance[s],” 554 A.2d at 949, was based “not only on [35 Pa.
Cons Stat.] § 780-113(f)’s punishment provisions[,] but on the
structure of state controlled substance schedules themselves[.]”
(Answering Br. at 30.)
The government fails to mention, however, that Swavely
expressly grounded its holding on the fact that the
Pennsylvania legislature, “[r]ecognizing that there are
significant differences between controlled substances, …
authorized punishments [in § 780-113(f)] which correspond
with the relative threat to the community posed by an
unauthorized possession, use, or transfer of the controlled
substance involved.” 554 A.2d at 950. That language shows
that Swavely relied on the punishment provisions in § 780-
113(f) – provisions for which there are no analogues in the
present case – in reaching its means-or-elements
determination.
Second, the government contends that because
Pesikan’s bill of information charged him with driving under
the influence of marijuana, the identity of the controlled
substance as marijuana was necessarily an element of his
offense. That argument conflates the categorical approach’s
divisibility analysis with the permitted scope of the
government’s evidence. While the government correctly notes
that the scope of its proof on Count 2 was limited to showing
that some amount of marijuana – as opposed to some other
controlled substance – was present in Pesikan’s blood, the
government-drafted charging instrument cannot add to or
subtract from the elements of a statutory crime. See United
States v. Tucker, 703 F.3d 205, 215-16 (3d Cir. 2012) (“In
criminal trials the proof offered by the Commonwealth must
measure up to the charge made in the indictment.”) (quotation

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omitted); id. at 215 (explaining that because the defendant
“was specifically charged with [possession with intent to
distribute cocaine], the trial judge was [required] to find that
[he] possessed cocaine in order to convict”).
In sum, because the identity of the specific controlled
substance is not an element of the Pennsylvania DUI statute,
the state statute of conviction is indivisible and cannot serve as
the basis for Pesikan’s removal under the INA.
III. CONCLUSION
For the foregoing reasons, we will grant Pesikan’s
Petition for Review in case number 21-1262 and will reverse
the order for removal. We will dismiss Pesikan’s Petition for
Review in case number 20-3307.

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