Luis Juarez Alvarado v. Eric Holder, Jr.
2014 U.S. App. LEXIS 14044
| 9th Cir. | 2014Background
- Luis Felipe Juarez Alvarado, a lawful permanent resident, pleaded guilty in Arizona to "Modified Count One: Attempted possession of a dangerous drug" (class 5 felony) arising from an April 19, 2009 traffic stop where ~4.5 grams of methamphetamine were found. Judgment sentenced him to probation.
- The original indictment charged Count One as possession of methamphetamine; the plea dismissed "Count One as originally charged" and replaced it with the lesser attempted-possession charge.
- DHS issued a Notice to Appear charging removability under 8 U.S.C. § 1227(a)(2)(B)(i) (controlled-substance conviction). IJ and BIA found him removable; BIA summarily affirmed.
- Juarez Alvarado argued: (1) Arizona attempt statute is categorically broader than the federal generic attempt definition; (2) the government failed under the modified categorical approach to prove the underlying substance was a CSA-listed drug. He also made an unexhausted claim that his plea was not an accepted conviction.
- The Ninth Circuit held it lacked jurisdiction to consider the unexhausted categorical-attempt argument, but addressed the modified categorical issue and concluded a written factual-basis page incorporated into the plea agreement established the substance as methamphetamine, sustaining removability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona attempt statute is categorically broader than the federal generic attempt definition | Juarez: Arizona attempt is broader, so his conviction may not match federal generic attempt | DHS: Ninth Circuit precedent (Taylor) treats Arizona and federal attempt as coextensive | Dismissed for lack of jurisdiction (issue not exhausted before BIA) |
| Whether the government proved the underlying substance is a CSA-listed drug under the modified categorical approach | Juarez: Indictment was dismissed and a disputed written page was not part of the plea agreement, so gov’t failed to prove methamphetamine | DHS: Indictment and an "attached description" incorporated into the plea agreement identify methamphetamine | Held for DHS: indictment not usable (dismissed and replaced), but the disputed written statement was incorporated into the plea agreement and sufficed to prove methamphetamine; removability stands |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (established the categorical approach framework)
- Descamps v. United States, 570 U.S. 254 (2013) (divisible statutes and limits on modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (documents admissible under modified categorical approach: plea colloquy, plea agreement, charging paper)
- Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009) (applying Taylor framework in immigration context)
- S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010) (government must prove underlying substance is listed in the CSA)
- United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008) (permitting inference that documents in the court file were the factual basis incorporated into a plea)
- Cisneros-Perez v. Gonzales, 465 F.3d 386 (9th Cir. 2006) (charging instrument cannot be relied on when original charges were dismissed and replaced)