Ruben Ceron v. Eric H. Holder Jr.
712 F.3d 426
9th Cir.2013Background
- Cerón pled nolo contendere to CA Penal Code §245(a)(1) for assault with a deadly weapon.
- State court sentenced to 364 days but suspended, ordered probation.
- BIA held Cerón removable under 8 U.S.C. §1227(a)(2)(A)(i) for a crime involving moral turpitude with potential one-year imprisonment.
- Court reviews legal questions de novo; petition for review denied.
- Issue 1: whether §245(a)(1) is a crime involving moral turpitude; Barber remains controlling law.
- Issue 2: whether Cerón’s offense is a crime for which a sentence of one year or longer may be imposed under §1227(a)(2)(A)(i)(II); the statute permits up to four years in state prison, and one year in county jail, affecting the “one year” threshold.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is assault with a deadly weapon under §245(a)(1) a crime involving moral turpitude? | Cerón; relying on Carr and related dicta that may limit turpitude. | State or government; Carr’s statement is controlling regarding weapons. | Yes; Barber remains good law and §245(a)(1) is a crime involving moral turpitude. |
| Does §245(a)(1) qualify as a crime for which a sentence of one year or longer may be imposed for removal purposes? | Cerón should be treated as not meeting the one-year threshold if a misdemeanor result applies. | Statutory language permits up to four years in state prison, so the one-year threshold is met. | Yes; the statute permits imprisonment of up to four years, satisfying the one-year-or-longer criterion. |
| Do California wobblers and §17(b) conversions affect whether the offense is a felony or misdemeanor for §1227 analysis? | Garcia-Lopez and Ferreira misapplied §19 to override punishments. | Section 17(b) may convert to a misdemeanor for all purposes | Section 17(b) does not apply here; the conviction designated a felony, so §1227 analysis treats it as a crime with potential ≥1 year. |
Key Cases Cited
- Gonzales v. Barber, 207 F.2d 398 (9th Cir. 1953) (assault with a deadly weapon deemed a crime involving moral turpitude (early controlling precedent))
- Carr v. INS, 86 F.3d 949 (9th Cir. 1996) (assault with a firearm not a crime involving moral turpitude (cited for context))
- Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc; held assault with a deadly weapon not always turpitudinous; governs precedent binding analysis)
- Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005) (en banc; discusses binding precedents and non-precedential dicta concerns)
- Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003) (wobblers; §17(b) distinctions; misuse of §19 in earlier analyses)
- Ferreira v. Ashcroft, 382 F.3d 1045 (9th Cir. 2004) (rejected final-step reasoning; wobblers and misdemeanor-for-all-purposes concept explained)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc framework for overruling three-judge panels)
- Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (follows Navarro-Lopez interpretation on turpitude for deadly weapons)